Kevin King’s commentary was included in a Law360 article analyzing the U.S. Supreme Court’s decision to hear a Fifth Circuit decision that can ease the uncertainty facing a resurgent U.S. nuclear industry as well as clarify limits it’s recently placed on federal agency power due to the overturning of the Chevron doctrine in the Loper Bright case.
Kevin notes that while the Supreme Court review of the Fifth Circuit's interpretation of the U.S. Nuclear Regulatory Commission's (NRC) authority will be important, so will its review of the appellate panel's conclusion that the Hobbs Administrative Orders Review Act gives the circuit court the authority to review claims made by parties that aren't part of the agency's licensing proceeding — in this case, the state of Texas.
Not only does that inject uncertainty into the NRC's administrative process, according to Kevin, but those of other federal agencies that rely on Hobbs Act, including the Federal Communications Commission and the U.S. Department of Agriculture. He adds that there is not extensive Supreme Court precedent on the scope of the so-called ultra vires doctrine that offers non-statutory review of agency actions. "What will the court say about this party participation requirement?" Kevin said. "The Fifth Circuit's approach loosens that rule, and that would result not only in the loosening of the rule for the NRC, but all of those other agencies too."
Kevin also observed that “when you get into the meaning of a statute, you're right into Loper Bright. […] In the past, the major questions doctrine has mainly served as a way of resolving cases without resorting to the Chevron doctrine. Now, with deference off the table, it's unclear where the major questions doctrine come into play." Kevin further highlights that “the court has lots of options in front of it, and this case provides the court with an opportunity to exercise those options.”
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