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In Loper Bright v. Raimondo, the Supreme Court adopted and deployed a particular narrative about agency action in support of overruling Chevron: Agencies reverse their own statutory interpretations “as much as [they] like[],” creating pervasive instability in the law, thereby destroying private reliance interests. Based on a study of two decades of agency regulations affirmed by the D.C. Circuit under Chevron, we show how infrequently agencies reversed their interpretive positions. Our study suggests that the Court’s regulatory “whiplash” narrative is overstated and that there is an underappreciated institutional settlement for notice-and-comment rules under Chevron. Identifying this regulatory settlement is important not only to correct the record but because it sheds light on a pressing question raised by Loper Bright: How much stare decisis effect should courts give to prior judicial decisions that affirmed an agency interpretation in reliance on Chevron? Our study reveals the true risks to legal stability that would come from courts re-interpreting the relevant statutory language and reversing previously upheld regulations. Courts therefore should have an extraordinary justification for overruling or avoiding precedent that affirmed an agency regulation under Chevron. In addition, our study provides guidance to courts on another significant issue after Loper Bright: How much respect should they give under Skidmore to regulations that amend the agency’s prior regulations in some respect? Although we find that agencies rarely reversed their interpretive positions under Chevron, we also find that they did revise their regulations in routine ways, as a necessary part of informed rulemaking. Our study suggests that courts should not treat any agency regulatory change as proving the Court’s whiplash narrative and as presumptively ousting amended regulations from judicial consideration and respect.

Agency rulemakings are a critical component of contemporary governance. This Article argues that there are a distinct set of modalities that characterize how agencies formulate and justify their rules. Just as the well-known modalities of constitutional interpretation capture the norms of constitutional discourse, the modalities of agency rulemaking offer a framework for understanding how agencies reason through and justify regulatory decisions. I show a common set of moves that agencies make across substantive contexts and across administrations. The rulemaking modalities are: (1) the public interest, (2) statutory purpose, (3) instrumental rationality, (4) technical expertise, (5) implementation considerations, and (6) cost-benefit analysis.

Exploring the modalities of agency rulemaking holds important lessons about the place of agencies in our system of government. First, attention to how the rulemaking modalities interact with each other—and in particular how agencies resolve tensions between modalities—provides an important study of how agencies balance competing pressures in justifying their policy choices. Second, attention to the modalities shows that agency rulemakings are methodologically distinctive—and distinctly appealing—relative to how Congress and the courts often make decisions. The rulemaking modalities are consistent with several desirable qualities that are often missing in other govermental decisionmaking: consideration of the full range of policy choices, attention to the likely consequences of various courses of action, and evidence-based reasoning for why government opts for one policy over other possibilities. Third, understanding the rulemaking modalities can shed light on how the “hard look” standard for judicial review of agency action operates, and how it should operate.

Certain provisions within environmental statutes, known as emergency action provisions, provide EPA administrators with the authority to take legal action when certain forms of pollution threaten public health. Of the six most prevalent environmental statutes with emergency action provisions, five have unique requirements for coordination with state and local authorities. These coordination requirements fit within a broader spectrum in environmental law of cooperative federalism, the concept of dividing responsibilities between central and regional authorities.

Drawing from case law, legislative history, canons of interpretation, and academic commentary, this Note highlights the inconsistent coordination requirements of the emergency action provisions—leading to confusion and delay for enforcement authorities—and shows there is scant normative justification for those differences. This Note also assesses what levels of coordination between federal and regional authorities are practically beneficial for agency attorneys and public health outcomes. Ultimately, this Note recommends standardization of the emergency action provisions, through legislative, judicial, and/or executive action, to capitalize on the benefits and mitigate the challenges of cooperative federalism.