In Loper Bright Enterprises v.
Raimondo, the U.S. Supreme Court famously
overruled the Chevron doctrine, under which courts were required to
defer to “permissible” interpretations of an ambiguous
statute by the federal agency charged with administering
it—even if the court read the statute differently. The Court
concluded that “[i]n the business of statutory
interpretation, if it is not the best, it is not
permissible.”
Litigants post-Loper Bright have since taken up the
mantle, challenging regulations and other agency pronouncements
they believe are not the best interpretation of a statute,
including interpretations of environmental statutes. One area that
seems ripe for challenges involves the government's
interpretation of the National Historic Preservation Act's
(NHPA) consultation requirement (section 106)—in particular,
its scope with respect to federally licensed actions. Section 106,
54 U.S.C. § 306108, instructs federal
agencies to “take into account” the
