Kevin King’s commentary was included in a E&E News article about the U.S. Supreme Court’s decision to hear a Fifth Circuit decision interpreting the U.S. Nuclear Regulatory Commission’s authority that may further undercut federal agency power in light of recent Supreme Court decisions.
As Kevin noted, “The NRC case is a continuation of the Supreme Court’s broader reassessment of the powers of administrative agencies in cases like Loper Bright and Jarkesy. That dynamic would suggest that the court will give serious thought to an approach that would open up pathways to challenge agency action,” he said.
On whether the ultra vires exception to the Administrative Orders Review Act (often referred to as the Hobbs Act) would come into play, Kevin described the ultra vires doctrine as a “fallback option” that challengers use to oppose agency actions when other avenues to sue may not be available. “There is relatively little Supreme Court precedent on the ultra vires doctrine,” he said, “and so anything the Supreme Court says about it in the NRC case could be meaningful.”
Kevin sums up that “the question before the Supreme Court is which approach will they take — the broader, more permissive one, or the narrower one?” He added that the Supreme Court’s ruling in the case could have implications for litigation for a wide range of agencies covered under the Hobbs Act — from the Department of Agriculture to the Federal Communications Commission.
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