In Schaffner v. Monsanto Corp., 113 F.4th 364 (3rd Cir. 2024), CA3 here and GS here, the Court dealt with EPA pre-emption over state law labeling requirements. I won’t dive into the weeds on the substantive issue, but I focus on the Loper Bright issue of delegation of authority to the EPA to interpret—"fill up the details.” (See Slip Op. 27 n. 9, 113 F.4th, at 381 n. 9):
Our analysis proceeds in three
steps. First, in Part IV(A), we examine "EPA regulations that give content
to FIFRA's misbranding standards."n9
n9 The Supreme Court has recently
overruled its decision in Chevron U.S.A., Inc. v. Natural Resources Defense
Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), holding that
"[c]ourts must exercise their independent judgment in deciding whether an
agency has acted within its statutory authority." Loper Bright Enters.
v. Raimondo, ___ U.S. ___, 144 S. Ct. 2244, 2273, 219 L.Ed.2d 832 (2024).
Prior to Loper Bright, courts might have owed deference to the EPA's
interpretation of the statutory term "misbranding," but no more.
Nonetheless, while Loper Bright requires courts, not agencies, to
determine the meaning of statutory terms such as "misbranding," we do
not read the decision to undermine the EPA's authority to promulgate the
regulations that implement FIFRA. As the Court explained in Loper Bright,
while courts alone must ascertain a statute's meaning, "the statute's
meaning may well be that the agency is authorized to exercise a degree of
discretion." Id. at 2263. And one way for statutes to express that meaning
is when they "empower an agency to prescribe rules to `fill up the
details' of a statutory scheme." Id. (quoting Wayman v. Southard,
23 U.S. (10 Wheat.) 1, 43, 6 L.Ed. 253 (1825) ). FIFRA is such a statute: it
expressly authorizes the EPA Administrator "to prescribe regulations to
carry out the provisions" of the statute. 7 U.S.C. § 136w(a)(1). We
therefore conclude that Loper Bright does not undermine the validity of the EPA
regulations that govern pesticide labeling and that we consider in analyzing
preemption under FIFRA in this opinion.
I focus on the enabling statute for Loper Bright agency authority to “fill up the details.” The statute quoted in part in the footnote excerpt above is 7 U.S.C. § 136w(a)(1), here, is in full:
(a)In general
(1)Regulations. The Administrator is
authorized, in accordance with the procedure described in paragraph (2), to
prescribe regulations to carry out the provisions of this subchapter. Such
regulations shall take into account the difference in concept and usage between
various classes of pesticides, including public health pesticides, and
differences in environmental risk and the appropriate data for evaluating such
risk between agricultural, nonagricultural, and public health pesticides.
It strikes me that the authorization in (a)(1) is parallel to the authorization in § 7805(a), here, which I also quote and bold-face the relevant language:
(a)Authorization. Except where such authority is expressly given by this title to any person other than an officer or employee of the Treasury Department, the Secretary shall prescribe all needful rules and regulations for the enforcement of this title, including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.
Perhaps the key difference is that § 7805(a) authorizes “rules and regulations” and 7 U.S.C. § 136w(a)(1) authorizes only “regulations.” In both cases, at least in terms of historical deference, regulations are required. So, the question raised—and by no means yet definitively answered—is whether § 7805(a) authorizes Treasury to “fill up the details” in the sense intended by Loper Bright. (For present purposes, I will call such authority to "fill up the details" as conferring deference entitlement to regulations issued under such authority and will call those regulations Loper Bright deference.)
