What's Next For FERC After Chevron?

On June 28, 2024, the Supreme Court issued Loper Bright Enterprises et al v. Raimondo (‘Loper'),¹ which overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc (‘Chevron').²

Chevron was a 40-year-old precedent that held that courts must defer to an agency's interpretation of a statute when that statute is silent or ambiguous, so long as the agency's interpretation was “permissible.”³ Chevron was cited literally thousands of times in court orders upholding agency regulations, and “Chevron deference” was a central concept of administrative law.

The ripples from Chevron's end have already begun to spread. Shortly after issuing Loper, the Supreme Court vacated and remanded the D.C. Circuit's order on Broadview Solar,⁴ which upheld the Federal Energy Regulatory Commission's (‘FERC' or the ‘Commission') interpretation of “power production capacity” under the Public Utility Regulatory Policies Act of 1978 (‘PURPA'). This remand throws back into doubt a