ANALYSIS: SEC Climate Rule Challengers Favor Major Questions

The briefing in a high-profile agency challenge in the Eighth Circuit previews how parties and courts could approach such challenges going forward.

The top two arguments raised in 29 briefs relied on the major questions doctrine and, unsurprisingly, the Administrative Procedure Act’s “arbitrary and capricious” standard. There are two surprises here: (1) that “arbitrary and capricious” came in second place, and (2) the appearance of less-common types of agency challenges, some specific to the rule at issue, some not.

The US Supreme Court urged wider use of the APA in agency action challenges when overruling Chevron deference in Loper Bright ...