![handle is hein.journals/rgyrvidh14 and id is 1 raw text is:
LOPER BRIGHT AND THE ASCENDANCY
OF THE COST-BENEFIT STATE
Paul R. Noet
The Supreme Court's overturning of Chevron deference in Loper Bright
Enterprises v. Raimondo1 launched an earnest debate about the decision's
implications. Understandably, the debate focused on the expected impact
of Loper Bright's standard for judicial review of agency statutory
interpretations on agency win rates, with some legal scholars predicting that
applying the due respect standard articulated in Skidmore v. Swift & Co.,2
as Loper Bright provides for, will not change the outcome in most cases.3
One issue that has not received the attention it deserves, however, is that
Loper Bright also significantly advanced what President Barack Obama's
former regulatory czar and leading academic Cass Sunstein has called the
cost-benefit state-the principle that government regulation is increasingly
assessed by asking whether the benefits of regulation justify the costs of
regulation.4
T Former Counselor to the Administrator, Office of Information and Regulatory Affairs,
Office of Management and Budget, where the author worked on the cost-benefit approach
in an EPA regulation affirmed by the Supreme Court in Entergy v. Riverkeeper; Inc., 556
U.S. 208 (2009). The views expressed in this essay are the author's own. The author thanks
thoughtful reviewers for their comments, including Jonathan S. Masur, Caroline Cecot,
Adam White, Brian Chilton, Tom Walton, and Richard Belzer.
1 144 S. Ct. 2244 (2024).
2 323 U.S. 134, 140 (1944) (holding that an agency's interpretation of a statute does
not bind a reviewing court, that a court may accord respect to an agency depending upon
the thoroughness evident in [the agency's] consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those factors which give it power
to persuade, if lacking power to control).
3 See, e.g., Richard J. Pierce, Jr., Loper Bright Enterprises v. Raimondo, Chevron is
Dead; Long Live Skidmore, GEO. WASH. L. REV. ON THE DOCKET (July 8, 2024), https://
www.gwlr.org/loper-bright-enterprises-v-raimondo-chevron-is-dead-long-live-skidmore
[https://penma.cc/E2FE-R3QQ] (predicting that Loper Bright will have only a modest
effect on the likelihood that any agency will win or lose in a particular case and that
agencies now will lose about 10 percent of the cases that agencies would have won under
the previous Chevron deference doctrine).
4 CASS R. SUNSTEIN, THE COST-BENEFIT STATE: THE FUTURE OF REGULATORY
PROTECTION (2002); see also, e.g., Jonathan S. Masur & Eric A. Posner, Cost-Benefit](ViewImageLocal?handle=hein.journals/rgyrvidh14&div=1&collection=&method=preview&ext=.png&size=3)
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