 So, good afternoon and welcome to those viewing either in person or virtually this Tuesday afternoon, technical session 7 of the Nuclear Regulatory Commission's 36th Annual Regulatory Information Conference. And while this is labeled a technical session, unlike other RIC sessions this week, there likely won't be much discussion of the technical issues associated with the regulation of nuclear reactors, materials, or waste. Instead, to foster a timely discussion about significant legal issues impacting the associated fields of administrative law and nuclear regulation, this session has been organized by the NRC's Atomic Safety and Licensing Board panel under the direction of Chief Administrative Judge Roy Hawkins. Seated beside me is panel legal administrative judge William Frohlich. He and I are serving as co-chairs for this RIC session. My name is Paul Bolwork. I'm one of the Licensing Board panel's legal administrative judges as well. Before we begin, there are several administrative matters about which session attendees should be aware. For those attending in person, the Wi-Fi code is RIC2024. Also, everyone here in Ball Roomie, please silence your electronic devices. The Q&A portion of this session will be through electronic means for both in-person and virtual attendees. For those of you here in the session room, you already may have scanned the QR code from the displays in the foyer. And if not, please take a moment and scan the QR code on the screen over to my left, which will be up there at some point. You will then be redirected to the specific Q&A page for this session. And if this is the first time today you're accessing a session Q&A page, it's an initial matter. You'll need to log in to the RIC platform using the name and email address you provided when registering for the RIC. This login is only required once each day. For those of you joining virtually, having already logged in to the virtual conference platform and joined this session, you'll find that there's a tab for electronic Q&A. Questions from both the onsite and online participants will be added to the same queue, and we'll try to get through as many questions as we can later during the later portion of this hour-and-a-half session that we've planned for today. With these administrative announcements completed, let's move on to the substance of today's session. And in doing so, I'd like to suggest that if the past is indeed prologue, then last year's RIC Administrative Law session provided a foreshadowing of many of the issues that are likely to be examined today. If some of you may remember, that session, which for anyone who might be interested remains available for viewing on the RIC website, had as its focus the major questions doctrine, as then recently articulated by the United States Supreme Court in West Virginia versus EPA. Additionally, however, the discussion among that panel's members, two of whom we are fortunate to have with us again today, touched on a variety of other topics, including the continued viability of the doctrines of judicial deference to an agency's interpretation of its organic statute and regulations under the Supreme Court's Chevron and our decisions, the parameters of federal administrative law judges' independence in the wake of the Supreme Court's Lucia decision, whether the existence of independent regulatory agencies as recognized in the Supreme Court's decision in Humphrey's executor was in jeopardy, and the scope and application of the non-delegation doctrine has applied to administrative agencies and their activities. This afternoon's session, which is entitled, Is the Regulatory Landscape Changing in the Federal Courts, If So, How Can Litigants Adapt?, is a recognition that a broader range of inquiry is entirely fitting, given the variety of potentially transformational issues that are working their way through the federal appeals courts or already before the United States Supreme Court. In the former category, there is the Fifth Circuit's August 2023 decision in Texas versus NRC, in which the court, at least in part, relied on the major questions doctrine in finding the agency lacked authority under the Atomic Energy Act and the Nuclear Waste Policy Act to license an interim high-level waste storage facility, a case that is currently pending with the full court on the government's request for re-hearing en banc. And before the Supreme Court itself are a variety of cases, including Loper Bright, in which the question of the Chevron Doctrine's continued viability is front and center, the Charquise case that raises questions about the Security and Exchange Commission's authority to conduct adjudications associated with fraud-related enforcement proceedings, before the agency, rather than before a federal district court jury, and about the independence of SEC administrative law judges, and the Community Financial Services Association case that concerns the power of Congress to allow a federal agency to operate using a funding mechanism that does not involve periodic congressional appropriations. The New York Times recently posed to a number of constitutional law professors the question, whether the Supreme Court's recent constitutional decisions, substantially modifying or overturning what were thought to be established presidents, is making it harder to teach constitutional law, and reportedly received resoundingly affirmative responses in several instances. Given the arguably similar situation associated with recent decisions from the federal courts, raising questions about what were once considered settled administrative law precepts, practitioners in that area may be feeling the same unease. We are fortunate, however, to have with us today an extraordinarily knowledgeable panel, perhaps help us get a better handle on where all this is going, and to provide some insight on how to adapt in the face of what seems to be a rapidly and potentially profoundly changing administrative law landscape. And so I turn now to Judge Frohlich, who will ride you with some background information about our distinguished panelists. Judge Frohlich. Good afternoon all. We have four legal scholars with us today that will share their perspective on some of the most recent cases before the circuit courts and the Supreme Court and what these cases mean for the future of administrative law. They will discuss whether the federal regulatory landscape is changing and how parties may have to adapt. They will give their perspectives on the future of administrative litigation and perhaps a pine on the future of the Chevron doctrine, the major questions doctrine, and what is meant by clear congressional authorization to act. First we'll hear from Professor Kristen Hickman of the University of Minnesota Law School, where she is the McKnight Presidential Professor-in-law. Professor Hickman presently serves as one of 40 public members and chair of the Judicial Review Committee for the Administrative Conference of the United States. She earned her JD, Magna Cum Laude, from Northwestern University School of Law. Following law school she clerked for the Honorable David B. Centel of the United States Supreme Court for the District of Columbia. Professor Hickman will be with us today virtually. After she concludes her remarks we'll hear next from Professor Jeffrey Lubbers. Professor Lubbers is a professor of practice in administrative law and is also a fellow-in-law and government at American University's Washington College of Law. From 1982 to 1995, Professor Lubbers was the research director of the Administrative Conference of the United States, where he is now special counsel. He holds a bachelor's degree from Cornell University and a JD from the University of Chicago Law School. Next we will hear from Professor Robert Percival. Professor Percival is the Robert F. Stanton Professor of Law at the University of Maryland, Francis King Cary School of Law, and is the director of the Environmental Law Program at University of Maryland's Law School. Professor Percival joined the University of Maryland Law School faculty in 1987 after serving as a senior attorney for the Environmental Defense Fund. While in law school he served as managing editor of the Stanford Law Review and was named the Nathan Abbott Scholar for graduating first in his class. Professor Percival served as a law clerk for Judge Shirley Huffstetter of the U.S. Court of Appeals for the Ninth Circuit and for U.S. Supreme Court Justice Byron White. He holds a BA from McAllister College and a master's and JD from Stanford University. Last but not least we'll hear from William Sherman. Mr. Sherman is a partner at Vincent and Elkins LLC, where he co-leads Vincent and Elkins energy regulatory practice. He has litigated high profile energy investigation and enforcement matters before the Federal Energy Regulatory Commission and in the federal courts. He recently filed amicus briefs in the Supreme Court in the Jarkesy case. Mr. Sherman served as general counsel of the FERC between 1990 and 1993 and served as chief of staff and senior legal and policy advisor at FERC. He received a BA from George Washington University and a JD from the University of Louisville where he was the Articles Editor of the Law Review. With those introductions I turn now to Professor Hickman who will join us virtually through the magic of electronics. Good afternoon, Professor Hickman. It's making sure that you can hear me. We can. Loud and clear. Wonderful. I want to thank the judges for inviting me to participate and for facilitating my participation virtually. The theme of today's panel of course is whether and how the courts are changing the regulatory landscape. To that end my job here is to talk about Chevron deference, particularly the Loper Bright and Relentless cases and the major questions doctrine. In the real world I think the trend in the jurisprudence surrounding Chevron, Loper Bright, Relentless and major questions taken together is that agencies will get less deference than they once did. How much less deference and whether that lesser degree of deference has already been baked in by past cases I think remains to be seen. So turning first to Chevron. I expect that everybody in the room knows about the Chevron doctrine. Just as a refresher, Chevron requires courts reviewing agency interpretations of statutes to ask first whether the meaning of the statute is clear using traditional tools of statutory interpretation. If the statute's meaning is clear then that's the end of the inquiry because agencies and courts alike must follow the clearly expressed intent of Congress. But if the statute is ambiguous then we move on to Chevron step two and ask simply whether the agency's interpretation is reasonable or permissible and if it is then Chevron says that courts must defer to the agency. Historically agencies win anywhere from a little to a lot more depending on when you know when courts apply the Chevron standard as compared to when the courts engage in DeNovo review. The Chevron doctrine has always been controversial but the arguments in the parties making those arguments have changed over time. In our current moment with the backdrop of opposition to Chevron from some of the justices the Supreme Court hasn't deferred under deferred to an agency interpretation of a statute since 2016. And it's refrained from even citing Chevron in a number of cases where it could have preferring instead to resolve statutory meaning in these cases using traditional terms tools of statutory interpretation. Sometimes agencies win and sometimes agencies lose under this approach. I haven't tracked the statistics but I think you can think of this trend in one of two ways. Some of the justices particularly Justice Thomas and Justice Gorsuch have not been shy in arguing that agents that the court ought to overturn Chevron which they view as violating separation of powers principles and giving rise to all sorts of other concerns. And maybe the reason the court hasn't applied Chevron is because a majority of the justices have agreed. And as they've done with some other legal doctrines in the past rather than overturning Chevron outright they were just hoping it would sort of wither away quietly from non use. And many people have interpreted the Supreme Court's silence about Chevron to mean that Chevron is dead already and that obviously in Loper Bright and Relentless they will get rid of Chevron. There's another possibility at work here. If a reviewing court finds that the meaning of the statute is clear at Chevron step one then there's no opportunity for judicial deference to the agency at Chevron step two and really no need to talk about judicial deference at all. Footnote nine of the Chevron opinion counsels reviewing courts to consider traditional tools of statutory interpretation in evaluating statutory clarity. And the justices are known for drafting majority opinions to try to discourage the splintering effect of concurring and dissenting opinions. So my own assessment has been that at least up to now the court doesn't have five votes to overturn Chevron and much of the court's silence in recent years about Chevron has been the result of the justice's choice instead to apply traditional tools of statutory interpretation to narrow Chevron scope and avoid the need for even talking about deference by sort of aggressively applying a step one type analysis without ever mentioning step one. But meanwhile agencies have continued to claim and receive Chevron deference at the circuit courts on a regular basis. My own sense just on and just an impressionistic sense rather than an empirical one is that agencies are receiving judicial deference under Chevron less often than they once did particularly as the circuit courts are following the lead of the Supreme Court in applying the principles of Chevron footnote nine and traditional tools of statutory interpretation. But in 2023 alone circuit courts across the country applied Chevron and deferred to the interpretations of a variety of different agencies and a number of cases. I don't have slides here but I've noted decisions extending Chevron deference to agency interpretations in the first third fourth fifth eighth ninth eleventh and DC circuits. And that's not necessarily even all the cases in 2023. Those are the ones that just most readily tripped across my radar. But there's no question that the Supreme Court has sent very mixed signals and thereby raised serious doubts about the ongoing of Chevron's continued vitality and applicability. And the circuit courts have signaled a lot of confusion and more or less begged the Supreme Court to provide clearer guidance. So here we are with Loper Bright and relentless. Those cases concern the same notice and comment regulation adopting adopted by the Department of Commerce and the National Marine Fisheries Service under the Magnuson Stevens Fishery Conservation and Management Act of 1976. Under the statute fishing industry participants have to follow fishery management plans. The agency relies on federal inspectors on fishing boats to ensure compliance with the fishery management plans. And the fishing industry doesn't argue that the agency has the authority to require them to carry those inspectors on their boats. The challenge here is to language in the regulations requiring the fishing industry participants to pay for the federal inspectors themselves. The DC circuit in Loper Bright found the statute ambiguous and granted Chevron deference to the agency's regulation as a reasonable interpretation of the statute and the Supreme Court granted cert in Loper Bright to consider whether the court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency. So the first part of the question presented about overruling Chevron is what has caught the attention and the imagination both of people who really really want the court to overturn Chevron and also of people who are dismayed at the prospect of the court doing so as well as the media. Most of the briefing in the case at least the briefing that I focused on focused on this first part of the question presented in Loper Bright. I would suggest however that more attention should be paid to the second part of the question concerning the circumstances in which statutory silence is equivalent to ambiguity for Chevron purposes. Along with that part of the question presented some of the briefs in Loper Bright take more of a mend it don't end it approach. Most notably in my view a brief filed by Tom Merrill from Columbia Law School and another brief by Kent Barnett of the University of Georgia Law School and Chris Walker of the University of Michigan Law School. Now we don't really know for certain what the court will say about Chevron at all it's at least theoretically possible that they could simply resolve the meaning of the statute at Chevron step one and avoid questions of deference all together much as they've been doing for the last several years. But I do think it's reasonable to expect that the court will say something more than that about Chevron. And one reason why I say this is the Supreme Court's decision to grant cert in October in the relentless case which involves the first circuit deciding to uphold the same set of phishing industry regulations using both Chevron step one and Chevron step two and that grant of cert came after the Loper Bright briefing was almost complete and the court put the case on an expedited briefing schedule to allow the case to be heard in tandem with Loper Bright in January. The most logical reason for granting cert in relentless rather than simply holding on to the case until Loper Bright was resolved and then denying cert or maybe remanding it back to the first circuit is that Justice Jackson was recused from Loper Bright but she's able to present or she's been able to participate in relentless and allowing her to participate in relentless I think signals what is more likely to be a more thorough statement regarding Chevron deference from the court. So what are the possibilities that we could end up with? Well along the lines of the mend it don't end it briefing one possibility for what the court might do is to Kaiserize Chevron. And I think this is what's most likely going to happen for starved Cicis reasons among other things. Justice Barrett coined the term Kaiserize during the oral argument in Loper Bright and the term is a reference to the Supreme Court's 2019 decision in Kaiser versus Wilkie in which the court considered the ongoing validity of the seminal rock and our deference standard of controlling deference for agency interpretations of agency regulations unless those interpretations were plainly erroneous or inconsistent with the regulations they were interpreting. Many of the arguments against Chevron coincide with arguments that were raised against seminal rock an hour. And the Supreme Court responded in Kaiser versus Wilkie by preserving deference for agency interpretations of agency regulations. But they drew from extensive precedent applying the controlling weight standard to derive a five part test that has to be satisfied before deference to an agency interpretation of agency regulations is appropriate. And the result has been a standard that is simply less deferential, less deferential than it used to be. So when Justice Barrett asked Solicitor General Elizabeth Prelager how she would Kaiserize Chevron, the Solicitor General suggested a footnote nine oriented Chevron step one with traditional tools of interpretation. A more robust Chevron step two perhaps even including a state farm like requirement that agencies justify their choices. Plus excuse me steps drawing from Meade's force of law requirement. And the major questions doctrine which I'm going to talk about next. But another possibility is what is sometimes referred to as skid more respect. A multi factor contextual analysis focusing on things like the validity of the agency's reasoning, the thoroughness of its consideration of the question, the consistency of the interpretation at stake. And that analysis draws from the Supreme Court's decision in Skidmore versus Swifted Company that historically has been just a little bit less deferential than Chevron. But last and not least as an alternative to Chevron is the NOVO review. And to some people the NOVO review is what the Administrative Procedure Act requires in the Constitution demands. And I would suggest that even if that's where we end up with doctrinally, I question whether that actually is what we will get practically and empirically and whether we'll be happy with the practical outcome of a decision in favor of the NOVO review. Contemporary statutes just delegate a lot of discretionary authority to agencies to elaborate statutory requirements in ways that you simply can't resolve using traditional tools of statutory interpretation and common law reasoning, at least in a relatively textualist era. The major questions doctrine at this point only scratches the surface of those delegations. Meanwhile, circuit courts have very full dockets and limited time to dig into these cases. Statutory schemes are complicated. And so with the NOVO review, I foresee a world in which busy circuit court judges will simply decide which side seems to have the better of the argument. Potentially based on policy priors and then adopt the statutory analysis offered by that side as their own. And at least some of those judges will be inclined to side with agencies more often than the challenging parties based on assumptions that agencies are acting in the public interest and know more about the matter at hand than judges do. But the end result would be a combination of judicial policy making and judicial deference but with a lot less transparency. Anyway, we'll see. We've got that to look forward to. So let's talk just briefly about major questions doctrine on this same panel last year when we talked about West Virginia versus EPA. I caution that it wasn't at all clear to be that the major questions doctrine really was going to imperil that many interpretations of agency statutes. It's getting raised a lot in briefing. It seems as though anybody challenging an agency interpretation of a statute feels the need to throw in a major questions argument. But one year later, at least at the level of the federal circuit courts, I still don't see that many circuit court decisions taking up the invitation. The exception, of course, as is well known in this room is Texas versus Nuclear Regulatory Commission, in which the fifth validated NRC's decision to license a private company to operate a temporary storage facility for spent nuclear fuel away from the nuclear reactor that generated it. The fifth circuit said that what to do with the nation's ever growing accumulation of nuclear waste is a major question. That is of great economic and political significance and has been hotly politically contested for over half a century. And the court concluded that NRC lacked the sort of clear delegation from Congress that the major questions doctrine requires. For what it's worth, the case didn't mention Chevron, but the court also made clear in Chevron type terms that even if the statute were ambiguous, NRC's interpretation wouldn't be entitled to deference. Other than that, though, the other big application of major questions doctrine came from a somewhat backwards case from the fourth circuit called North Carolina Coastal Fisheries Reform Group versus Captain Gaston LLC. And this was a case in which an environmental group used the Clean Water Act's citizen suit provision to claim that shrimp trawlers were violating the Clean Water Act by throwing bycatch overboard and disturbing sediment with their nets without first getting permits from the EPA and the US Army Corps of Engineers. Without a lot of explanation, the court invoked the major questions doctrine and used it to conclude that the Clean Water Act did not clearly apply to the shrimp trawlers. Here, the court additionally noted, though, that EPA had signaled its own skepticism that it had the authority to act under the Clean Water Act to regulate the trawlers' activity. So although the fourth circuit invoked the major questions doctrine, the shrimp trawlers' case just isn't an instance in which the agency wanted to do something, and a court used the major questions doctrine to say no. Meanwhile, we've got several cases in the last year in which courts expressly declined to apply the major questions doctrine, including litigants that they were telling litigants that they were invoking it inappropriately. And here I'll point to two particular cases. One was the Alliance for Fair Board Recruitment versus SEC, which I mentioned because it involves the fifth circuit. The fifth circuit told parties challenging the constitutionality of NASDAQ as a self-reporting organization that this is not a major questions case. Because the SEC's asserted authority was an extraordinary exercise of its power to approve exchange listing rules, the rule-giving rise to the challenge was not significant enough to trigger major questions, concerns, and the Exchange Act authorizes SEC approval of exchange disclosure rules. Separately, in heating, air conditioning, and refrigeration distributors international versus EPA, the DC circuit rejected the application of the major questions doctrine to EPA regulations phasing down hydrofluorocarbons, even as the court rejected part of those regulations on other statutory interpretations ground, because the court said that the regulations just weren't as significant as a lot of other regulations, and they could decide the case using ordinary tools, particularly ordinary meaning, so they didn't need the major questions doctrine, but they just didn't think it applied. So maybe we will get to a point where we have a lot of rules invalidated on major questions ground, but we aren't there yet, and I just don't see a lot of signs that we're getting there. So I guess on a certain level my conclusion here is that, sure, doctrinally things seem to be changing, but it's not all of that clear to me that we are in a position where outcomes are going to change all that much. It remains to be seen, but with that I'll turn it over to whoever is next. Professor Lubbers, next. Well, thank you very much, Judge Frohlich, and I want to thank you and Judge Bulwark for having me back this year on such a distinguished panel, and I think there's no question that this current Supreme Court term has the potential to be a portentous and, in my view, damaging one for administrative law, environmental law, administrative agencies, and for proponents of strong health safety and environmental regulation generally. Last year, as Professor Hickman mentioned, she and I had a little back and forth on the major questions doctrine, and I said that I had a more jaundice view of it than she did, and I think I still do. I did say at the time that I thought that the then-pending challenge to the NRC's licensing decision that we've talked about kind of showed how potentially wide-ranging and debilitating this doctrine could be to all manner of health, safety, environmental, and consumer regulation. And sure enough, that's what happened despite, I listened to the oral argument by Andrew Aberbach in the Fifth Circuit and it was very persuasive, but nonetheless, the Fifth Circuit did find that it was that disposal of nuclear waste was an issue of great economic and political significance. Well, that may be true, but this was just one licensing decision. It wasn't the creation of a national depository or something like that. But nevertheless, it was considered a major question. And then, of course, we had the Supreme Court's decision last June that said that the Biden administration's attempt to provide for student loan forgiveness benefits also violated the MQD. Now, Professor Hickman said there aren't that many decisions in the lower courts on this finding of violation. And I just want to commend to you the most recent administrative law review issue. There's an article in there by Natasha Brunstein in which she surveyed all the major questions decisions in the lower courts, in all the lower courts, district courts and courts of appeals. And her survey shows just how open-ended the doctrine has become there. And so I want to quote what she said in her article. There is no one major questions doctrine in the lower courts. Judges have taken vastly different approaches to defining and applying the doctrine both within and across circuits. These differences illustrate that many judges may view the doctrine as a little more than a grab bag of factors, which they seem to be choosing from at their discretion. Lower court judges do not appear to be constrained in how they apply the doctrine. In a majority of cases concerning Biden administration, agency actions and executive orders, judges apply the doctrine to reach outcomes that aligned with the political party of their appointing president. She also found that there was only one lower court decision in her survey where a district court judge found that the major questions doctrine did apply, but concluded that the agency did have clear congressional authorization for the action. And I should mention that that case, which is called Kovac versus Ray, was just appealed to the Fifth Circuit and argued yesterday and the Fifth Circuit seemed skeptical about that clear statement. So I think that MQD is still the biggest arrow in the Supreme Court's quiver that it is using to chip away at the power of the so-called administrative state. And now it looks like this will shortly be joined by either the elimination or overhaul of the Chevron doctrine. Of course, the MQD has already narrowed Chevron scope to non-major, some might say minor, questions, which is why the Loper, Brighton relentless cases that the court took to review the Chevron doctrine, involved the rather parochial issue of who pays for monitors on fishing vessels. And note that the MQD has also completely inverted the Chevron approach to deference as well. Under Chevron, if the statutory provision being interpreted as ambiguous, that is beneficial to the agency because it is more likely than not to have its interpretation upheld under step two. But under the MQD, the situation is reversed. Ambiguity is fatal to the agency's interpretation, and the court then doesn't have to wrestle with Chevron or even a textual analysis, much less whether the evidentiary record supports the action. So I think that Chevron is so weakened now by all the exceptions in Chevron step zero, including the MQD, that replacing it with Chevron's multi-factor test, or as Kristen put it, a Kaiserized version of Chevron, would not be as big of a change as it would have been five years ago. And she referenced one of the briefs, amicus briefs by Walker and Barnett, who are influential conservative law professors, who urged the court not to overrule it because it is so weak. And because the starry decisive values of not overruling it are greater than the costs of keeping it, partly because over 17,000 lower court decisions have been based on Chevron, and they could be subject to relitigation. Of course, scrapping it entirely would still be somewhat of a loss for regulators, as shown by the fact that the Kaiserized version of our deference has apparently led to a distinct reduction in our deference being given in the lower courts. Moreover, the possible reopening of lots of settled rules is definitely a concern, especially if the court opens a loophole in the six-year general statute of limitations on suits against the government, which is a distinct possibility if you listened to the oral argument a few weeks ago in the case of corner post versus the Board of Governors of the Federal Reserve System. Now, I should note that this is not a worry for NRC rules since the Hobbes Act, which applies to the NRC, requires that challenges must be brought within 60 days after entry of the order in question. And so the NRC and the half dozen other agencies under the Hobbes Act have their own statute of limitations. But anyway, that's my pessimistic take on Chevron. I think there are probably four votes on the court to scrap it, but it's possible that Chief Justice Roberts and Justice Kagan, with the help of adding Justice Jackson to one of the cases, can fashion a majority to keep a weakened version around. But the court didn't take these fishery cases to simply leave Chevron alone. Now, let me move to the other potential blockbuster case on the court's term, the SEC versus Jarkesy case. It's the latest case in a long line of formalistic separation of powers cases. Over a dozen, by my account, since the 2010 Free Enterprise Fund versus PCOB case that have already chipped away at agency power and authority by calling into question agency structures that might interfere with the president's power to control and fire agency heads and other officers who Congress has vested with some independent authority. Jarkesy is a somewhat lower profile case than the two Chevron related cases, but it certainly has the potential to upend many agencies in house enforcement procedures, especially in the area of civil money penalties. So in Jarkesy, the Fifth Circuit, two to one, overturned an SEC enforcement action in which an SEC ALJ, affirmed by the SEC, found that Mr. Jarkesy's hedge fund violated the securities laws by engaging in several types of fraudulent behavior. And I should tell you what that behavior was. According to the government cert petition, he first falsely represented to brokers and investors that a prominent accounting firm served as the fund's auditor and that a prominent investment bank served as their prime broker. Second, he misrepresented the fund's investment strategies and third, he overvalued the fund's holdings. For example, by arbitrarily inflating the value of certain holdings from 30 cents per share to $3.30 per share so that his firm could charge higher management fees. The Fifth Circuit, so that's what he was found to have done, the Fifth Circuit overturned the order on three independent grounds. First, that the in-house SEC enforcement proceeding that imposed a civil penalty for fraud liability, subject to judiciary review on the administrative record, offends the Seventh Amendment's right to a jury trial and should instead be brought in federal court. Second, that Congress violated the non-delegation doctrine by failing to provide the SEC with an intelligible principle for deciding which avenue to pursue, whether to go before the ALJ or bring the action in federal court. And I should note here that the SEC is one of the few agencies that can choose to bring a penalty case in federal court or in its own in-house adjudication system. And third, that because both the SEC ALJs and the SEC members have forecaused removal protection, that violates the constitutional rule from the Free Enterprise Fund case, that Congress cannot impose two levels of removal protection between officers and the president. So the Supreme Court granted cert on all three questions, any one of which, if affirmed, could be extremely disruptive to agency enforcement power, a potential ruling that SEC ALJs cannot be protected by forecaused removal protection, was the issue that got the most attention when cert was first granted. And this was the area I was most, the issue I was most worried about, because if that argument is accepted by the court and ALJs become at-will employees due to this case, it would not only be a huge blow to ALJs across the government, but also to the fairness of agency enforcement. But curiously, in the oral argument, there was only one brief Q&A on that issue. Otherwise, the nearly two-hour oral argument solely focused on the right to a jury trial. Now, I should also say, in my opinion, that I think the non-delegation issue is borderline frivolous. Prosecutorial decisions are quintessential executive functions. And I don't think even Justice Gorsuch would find this case to be a good vehicle to try to beef up the non-delegation doctor. But before the oral argument, I also thought that the jury trial issue was a non-starter, because the 1977 Atlas Roofing versus Oshrick case seemed to have definitively settled the issue by holding that Congress could assign a civil penalty adjudication to an agency. And if it did so, there was no right to a jury trial. The court held, in that case, that the Oshack civil penalties were a means of enforcing a public right rather than a private right, a distinction developed in earlier cases that in part looked to see whether the issue in the case was a new statutory type of case involving the government as a party or a type of private common law dispute that dated back to old England. To be sure, the court held 10 years later in the Tull case, Tull versus EPA case, that when Congress did require agencies to go to district court to collect penalties, as under the Clean Water Act, their jury trial right would still obtain. These precedents would seem to have settled the issue in jarkesy as Justice Kagan insisted in her questioning. But the Fifth Circuit distinguished the SEC fraud enforcement case as being similar to private fraud litigation in old England and determined that it was therefore a private rights type of case, unlike the workplace violations in Atlas Roofing. From the oral argument, it seemed clear that Justice's Gorsuch, Thomas, Alito, and Kavanaugh were quite dubious that Congress should be able to control the Seventh Amendment jury trial right by simply choosing which forum to assign the case to. Justice's Kagan, Sotomayor, and Jackson seemed to feel that there was no reason to distinguish or overrule Atlas Roofing and that a statutory fraud prosecution was very different from a common law fraud case anyway, which leaves the Chief Justice and Justice Barrett. And I think they will be looking to overturn this SEC action in the most narrow way possible. My best guess is that they will probably find that the SEC civil money penalty cases or maybe only such cases that allege fraud have to be tried in the district court with a jury, or at least that the respondents should have the choice of forum. My fear is that they may more broadly hold that all civil money penalty cases across the government need to be tried in district court or even all enforcement cases including license revocations and disgorgements by overruling the application of the public rights, private rights distinction in enforcement actions. I'm hoping the court will not find it necessary to decide the ALJ issue, though they can't duck it forever. If they do, I retain the hope that they will protect ALJ's independence. I'll briefly explain why in a minute. But if they do apply the free enterprise fund to ALJs, they would have to either sever the ALJ's fore-caused removal protection or the SEC's commissioner's removal protection and either action would portend big changes for either ALJs or independent regulatory commissions. Judge Frohlich asked us to consider how jargassy might affect the NRC. Well, it obviously might affect Judge Frohlich. But in terms of the jury trial issue, the NRC has a rather opaquely written penalty statute. And I could only find one litigated case about it from 1981, NRC versus Radiation Technology Inc., which was a rather extensive opinion by a district court judge in New Jersey. So that, I assume, the most penalty cases must result in settlements. Now, in the Radiation Technology case, the court first determined that the statute meant that in a collection action or in a civil penalty action, the licensee would be entitled to a trial de novo in the district court. And under the tall case, that should also mean a right to a jury trial. And I think that that would be the case even if the agency voluntarily gives the respondent and evidentiary hearing before the case is heard by the district court, as the NRC apparently does. In other words, I think Congress has to explicitly provide for a trial type administrative adjudication process in the agency to situate a civil penalty program within the Atlas roofing precedent. And there are good policy reasons for Congress to do that. One of the reasons it has done so in so many statutes is that the court collection model is extremely cumbersome. Under that traditional system, the agency must refer the case to the Department of Justice, normally meaning the local US attorney, and for them to collect in the appropriate district court with a jury trial opportunity. And as you can imagine, many US attorneys do not want to prosecute cases that would require them to learn a whole new body of regulatory law and go through a time-consuming jury trial, potentially against a locally powerful defendant, all for a relatively small penalty that would flow into the general treasury. So there was severe under-enforcement of many regulatory statutes. The briefs supporting the challengers in Jharkisi say they are only trying to level the playing field. But I would contend that they are trying to retilt it. As for the ALJ double-course protection issue, and I'll close on this, there are several reasons for my relative optimism on that issue. First, in the Chief Justice's famous footnote 10 in Free Enterprise Fund, he went out of his way to distinguish ALJ's removal protection from that of the unusually structured PCAOB, which Congress had embedded into the SEC. Moreover, the court has never questioned the Wiener case. By the way, the Wiener case was decided by Justice Frankfurter, just so you know. But the Wiener case, which upheld for-causing removal protections for the purely adjudicated War Climes Tribunal members in 1958. Third, the court's solution to a similar problem with administrative patent judges in the 2019 Arthrex case preserved those judges' civil service protection, which this Court of Appeals for the Federal Circuit had severed. Not to mention that before 2010 the court had upheld the ALJ program as a whole in the Ramspect case, and also spoke unfavorably of ALJ independence several times and ruled on hundreds of agency adjudications without ever challenging the selection or removal protections of ALJs. On the other hand, if the court does take ALJs out of the enforcement, out of all the enforcement cases, preserving their decisional independence might seem less necessary. So in the end, all of these cases have a way of fitting together and leading to a further weakening of agency authority. Thank you. Professor Persil? Yes, thank you for inviting me here. Now that there's a six to three conservative supermajority on the court, the court has become something of a right wing playground. The justices have virtually complete control over their agenda. And the conservative, quote, unquote, public interest groups are kind of going wild in bringing new far-reaching constitutional theories to the court. I prepared the slide to illustrate in one way the impact of the Trump administration on the composition of the lower federal courts. There were over 220 judges confirmed with life tenure to the federal courts during the Trump administration. And you can see the lopsided numbers, particularly in the circuit we've heard the most about, the Fifth Circuit. There are some district courts in the Fifth Circuit where the litigants know exactly what judge they're going to get, and they can often pick a very far-right judge. So if they want to invalidate the decade's long approval of the abortion pill, they can be confident that they'll be able to do that. And then the question is, what happens when that's appealed to the Fifth Circuit? Given that the Fifth Circuit is completely dominated by judges appointed by President Trump and other Republican presidents, the result has been decisions like Texas versus NRC. There have been 14 emergency applications for stays of lower court decisions by the Biden administration. 11 of those 14 have come from the Fifth Circuit. Seven of those applications were granted even by this conservative Supreme Court. The other four, the Fifth Circuit law, the decision below was reversed in three of the four cases. So you can see the Supreme Court now has to go through these regular fire drills. The last one was just a week and a half ago, when late at night on a Saturday, after a federal district judge had enjoined, as before, the New Texas law setting up its own state deportation provisions in apparent conflict with Arizona versus United States, the Fifth Circuit suddenly granted a stay of the injunction staying the law, meaning the law would go into effect. They granted an administrative stay for seven days, only if they got emergency relief from the Supreme Court. Now they have gotten that relief, but what happens is the Fifth Circuit judges are able to put the administration and the Supreme Court through these regular fire drills where they have to act really quickly, and that's one area where the court does not really control its agenda. And I assume at this point, particularly given the reversal rate, they're a little ticked off about it. It would be kind of nice if they would tell the Fifth Circuit stop like they regularly used to do when the Ninth Circuit was doing that in a liberal direction. Now, as we've heard, one of the new great legal theories that suddenly appeared for the first time mentioned by name for the first time in the Supreme Court in the West Virginia versus EPA decision was the Major Questions Doctrine. And now, if you're doing any regulatory litigation, it's like the old saying, to a hammer, everything looks like a nail. To a plaintiff's lawyer, everything looks like the Major Questions Doctrine. I think the ultimate absurdity was, you may recall, the Justice Department official during the Trump administration who wanted to help overturn the election and prepared a false memo saying that the Justice Department had investigated and found extensive election fraud and the state should not certify the Biden elections. Jeffrey Clark, he's being disciplined by the DC FAR for helping to overturn the election. And he's arguing that whether or not the DC BAR can discipline one of their attorneys for engaging in fraudulent activities is a major question. And therefore, they shouldn't have the power to disbar him. The fact of the matter. Do you mind that, ironic? The fact of the matter is that if you're dealing with an agency like the Nuclear Regulatory Commission or the Environmental Protection Agency, for decades, they've had vast statutory authority to protect health and safety nationwide. And when EPA does national air regulations, they're always going to have vast economic and political significance. And they've often also been incredibly beneficial to public health and welfare. Look at EPA's decision to phase all lead out of gasoline. It's been adopted now in every country in the world. Economists estimate that it provides between $2 and $3 trillion in net benefits by reducing neurological damage to everyone on the planet. And yet, if EPA tried to do that today, I assume that would be a major question, doctrine. And you'd have to get specific congressional authorization at a time when Congress is in total gridlock. Now, with respect to Chevron, seems to me the irony is that we've come full circle. You may recall back in 1978 when Justice Rehnquist was upset that the liberal DC Circuit kept making it hard for agencies to do their job. In the Vermont Yankee case, he said the DC Circuit should not have required the Atomic Safety and Licensing Board to allow cross-examination. And announced this broad new principle of administrative law that unless the statute specifically requires agencies to do more, they shouldn't be ordered by courts to do that. Now courts are being very activist at the Supreme Court level and trying to tell agencies that they can't do certain things that they want to do. With respect to Chevron, it just seems so ironic because 40 years ago, this was a great defeat for environmentalists. It was Chevron versus NRDC. My friend David Doniger argued the case. The question was whether EPA could make clean air act regulations more flexible during the Reagan administration so they would be less costly to comply with by adopting the bubble policy. And the court deferred to the agency let the Reagan EPA make it easier to comply with air quality regulations. And industry groups thought that was just great. But now, the shoe seems to be on the other foot and Chevron is being so demonized by the right. And even Doniger himself and the environmental groups filed amicus briefs in relentless and low per-pride saying, don't overrule Chevron. We once thought it was really bad. But now we think it's good to have some deference to agency expertise. As mentioned during the oral argument, Slyster General said, look, after 40 years, there's been such reliance on Chevron. In the lower courts, cited 17,000 times, cited 60 times in the US Supreme Court, but not in the last six years. I've called it in recent years dead man walking in the Supreme Court because no one asked for Chevron deference because the no majority of the justices are going to be hostile to it. So I really sort of questioned what difference is it going to make. I'm not all that familiar with cases where some judge appointed by President Trump, who doesn't much like agencies, has said, I really think the agency is wrong, but I have to give them Chevron deference so I'm going to uphold what they did. So I don't know if it's going to have a real lot of difference, although one really interesting point that's been made by my colleagues who teach immigration law, and it was made very forcefully by Justice Gorsuch at oral argument in the relentless and low-per-bright cases is that Chevron may have a disproportionate impact on individuals like immigrants who are dealing with immigration judges or people looking for military benefits and the like because it's easy for judges to say we'll defer to the agency and they lose. So his argument is that Chevron is actually bad for them. We'll see if that's the case. Justice Scalia was a big fan of Chevron as was Justice Thomas but very late in life they seemed to change their views which Justice Gorsuch at oral argument said how smart they were because they were able to realize it was a mistake. Will it be overruled by the Supreme Court? I think there's probably at least four votes to do that. It will turn on whether Chief Justice Roberts and perhaps Justice Barrett go along with that. Roberts has been trying mightily to keep the court from being considered the very partisan institution that it has become in recent years and trying to build consensus so that might lean in favor of him not wanting to formally overrule Chevron but as we've just heard it's been so neutered that it really doesn't make all that difference. I did also want to talk about another case that Spring Court heard oral argument on on February 21st because it shows just how much agencies are under assault by industry groups and the red states. This is the case involving EPA's good neighbor policy to reduce transboundary air pollution from state to state. The rakes were first promulgated in 2015 and when they were challenged in the DC Circuit a judge named Brett Kavanaugh by a two to one majority with Kavanaugh writing the opinion struck it down but the Supreme Court reversed that by a vote of six to two in a decision written by Justin Skinsburg saying that what the DC Circuit panel was trying to do was to be so hyper-technical that it would be impossible for us to ever have effective regulation of cross-state air pollution. Now the most recent iteration of these regulations when it was promulgated applied to 23 states where EPA said these 23 states have to file new state implementation plans to guarantee that they are in fact not contributing to air pollution that will interfere with the ability of downwind states to comply with the Clean Air Act but they were able some states to go to the Fifth Circuit and some of those other circuits dominated by the right-wing judges and get staked and so now they're telling the Supreme Court they filed an emergency motion in October saying you must stay the entire program because it was premised on the notion that 23 states would be participating but because of these lower court stays there are only 11 states participating and now of course the regulations had anticipated that and they don't ask any more of the remaining 11 states but what's incredible about this it was an emergency motion these have been unheard of in the past where the lower court the DC Circuit had denied the stay here to then go directly to the Supreme Court it started with the Clean Power Plan in what became West Virginia versus EPA where the Supreme Court after the DC Circuit unanimously had denied to stay by a five to four vote the last vote justice Scalia ever cast as the Supreme Court Justice blocked the Clean Power Plan from going into effect so that just encourages this kind of run to the Supreme Court if you're a red state or a business group that wants to halt something EPA is doing tell them it's an emergency we have to act right away now the motion was filed in October the court heard oral argument on February 21st and no stay has been granted yet but the cases now argued on the merits skipping over the DC Circuit I suspect that this is Justice Kavanaugh's revenge for the fact that he was reversed by the Supreme Court in the EME Homer case and that's the reason the justices are so interested in it now finally what's out there on the horizon I would suggest that environmental standing may be the next big cause to go to the Supreme Court in light of a case called Environment Texas Citizens Lobby versus Exxon Mobil this is a citizen suit that's been going on for a decade now where Exxon Mobil's Baytown refinery was found guilty of thousands of violations of Clean Air Act regulations and the citizens living around the refinery brought a citizen suit for violating the Clean Air Act and initially the court applied a small penalty but it was so small a fifth circuit panel said no go back and do it again they applied a much harsher penalty then and then it was appealed back to the fifth circuit and then Exxon since you can argue standing at any point because it's jurisdictional said you have to prove every one of the thousands of plaintiffs living nearby has to specify on which particular date they were impacted and how they were impacted by each of the thousands of violations the fifth circuit panel said no you don't have to do standing that way we have the Supreme Court's late law decision which brought a halt to Justice Scalia's campaign to unreasonably restrict environmental standing but Judge Oldham in a sense said standing must be litigated with a level of granularity so each of those plaintiffs have to show standing the fifth circuit vacated the decision and is now re-hearing it on Bonk they heard oral argument last year depending upon how they decide that we could have standing going back to the Supreme Court now one for environmentalist one piece of good news is Justice Gorsuch doesn't seem to be like Scalia a fan of restricting environmental standing but some of the other justices clearly would be so we live in a very new regulatory world where we have activist courts trying to make agencies jobs more difficult to do and this term will show just how difficult it will be in the future. Thank you. We'll leave a clean up to Bill Sherman. The floor is yours. Thank you Judge Frohlich and I usually try to make eye contact with the audience when I'm speaking but in this very instance I'm gonna this light is giving new meaning to the phrase blinded by the light so I'm gonna have to look down a little bit and I apologize in advance. Let me just say that I am not exactly sure what a country FERC CFC CFTC lawyer is doing on a panel with three esteemed law professors who have written many law treatises and articles and countless other types of speeches as we've just heard but I'll do my best. I like to start these by saying I used to be against the reauthorization of the Endangered Species Act until I became one a moderate Republican and as a lawyer who practices regularly before these courts I am not allowed I don't have the freedom to actually call judges right wing or a left wing. All I get to say to clients is it's panel dependent. Right, I don't get that luxury. So what I thought I'd try to do today is talk about some of these issues as someone who's been both an agency general counsel and somebody who has been a practicing lawyer for now close to 40 years despite my youthful and svelte appearance as well as somebody who has had a major or has made major contributions to the last two significant energy laws passed in this country, the 1992 Energy Policy Act and the 2005 Energy Policy Act which I am proud to say at least in 1992 in an election year this will sound shocking in an election year passed with very few dissenting votes in either House of Congress and in fact in the Senate it passed with only eight votes saying no in an election year. Imagine that happening on just about anything today. Before I go forward I have to give the normal disclaimer unlike my colleagues my views are those of my own they don't represent the views of Vincent and Elkins for any of its clients. I'm glad I got that out of the way because I'll not be locked out of my office tonight. A couple of months ago I was arguing a case of motion in Federal District Court and I was having a back and forth with the judge and some of these cases that we've been talking about came up and I said I thought that this was the most consequential administrative law term that we've seen in at least 25 or 30 years before the Supreme Court. And much to my astonishment this well-respected judge started ticking off a bunch of these cases and asking me what I thought about it some of which had nothing to do with the case I was actually arguing. Luckily I had some idea of what she was talking about and at the end of which she actually said you know Mr. Sherman you may be right this could be a consequential term before the court and I handed a note to the associate sitting next to me and said I think we'll be okay on this motion but if you just think about Chevron, JARCACI, the CFPB case, the corner post case it's just remarkable. In all the years I've done this to have these many cases in one term it's like having four or five administrative laws Super Bowls in one or two months. It's really remarkable. I can't remember another period like this. Last term of course we had Cochrane, Axon Cochrane and it's really remarkable that this is all happening at once. I think as we try to prognosticate on some of these cases it's important to remember some first principles. One is it's an absolute fool's errand to try to read much into the questioning that occurs during the oral arguments. As Justice Sotomayor recently said she asked questions during the oral argument for a variety of reasons. Sometimes she's trying to throw off an answer being given that is not consistent with her point of view and she doesn't want the other justices to hear it. Sometimes she's trying to get a different point of view and take the direction of the argument in a completely new way. So I've walked out of arguments thinking well I did okay and then I got crushed. I walked out of arguments thinking Jesus I sucked today and I won. So it's impossible to sort of predict. But I think it's important to take a step back for just 30 seconds. I'm literally blinded by the lights here. But how did we get to this point? Like we're talking about all these cases and how did we get to this point? And a lot of times we sort of forget the reason why we got to this point lays squarely and unequivocally not with a lot of the judges that we're talking about not with the Supreme Court, but with Congress. And we sort of overlooked the fact that Congress has no ability right now to legislate on major public policy issues. And its ability to legislate on major public policy issues is only surpassed by its inability to write clear and concise legislation. That's how we got into this. As Congress has become more and more fractured with majorities in Congress getting slimmer and slimmer with polarization amongst the Congress getting worse and worse. It has led to legislation that I know having been involved in a number of them are deliberately written to be ambiguous and confusing. And you may think, well, why did that happen? Well, it happened because that was the only way they could get enough votes to pass the damn piece of legislation. And what happens is after this occurs the sponsors of the legislation the people who were really trying to push it through do something that, again, I'm glad everybody's sitting. The bill passes and they immediately as the bill sponsors or proponents run to the agencies and say, this is what we really meant, make sure when you start implementing it you implement it in this way. And that happens awful lot of times. And so when we had the New Deal legislation types back in the 30s and 40s that were meant to confer broad grants of authority many laws passed. We're still litigating some of those issues but those were passed intentionally to grant broad authority. But now it is almost a running joke that how many times bills get passed through the Congress that not a single member of the Congress has read cover to cover. It's astonishing and they admit it. And so why did we end up in this circumstance? We've ended up in this circumstance because Congress is so polarized it cannot get sufficient votes to pass clear and concise legislation. Spoiler alert, I don't think that's getting better anytime soon. And that's why we end up having Chevron. That's why we've ended up having the major questions doctrine. And that's why the courts have been forced to confect tools to try to interpret legislation that in many cases is intentionally ambiguous or intentionally confusing. So let's just talk about what happens if Chevron is eliminated or Chevron is reversed. I don't disagree with my colleagues. I think its importance has been significantly overblown but I do think they will do something. I do not think they added the case that Justice Jackson could hear on just to sort of do nothing. I agree with some of my colleagues on that. If Chevron is narrowed or overturned I don't think the world will come to an end. I think the sun will still come up. Nobody will mistake me on the street for a Brad Pitt. Agencies will still go forward and we will continue to litigate cases. But what will happen is, we'll have two faces and I'm now speaking as somebody who is agency general counsel, we'll have two phases. Phase one is, and this is where quarter posts will come into potential importance. Phase one will be the agencies will have to go back and dig in. They'll have to really spend more time, spill more ink, work harder on explaining what their authorities are, where their authorities emanate from, what the statutes really mean without relying on the tie goes to the agency rule that many believe Chevron had to become. So we will have in the first phase of a post-Chevron modification or elimination at the agency level, they'll be more work to be done, more analysis that'll have to be given and more ink dropped and spilled on their statutory authority. Is that a bad thing? I think not. And I think this first phase will play out over a shorter period of time. How the court decides the corner post decision will have an important question because there, the question before the court is, when can somebody challenge an agency statutory interpretation or regulation that was adopted years and years earlier when in this instance, the company challenging the regulation wasn't even in existence? So those, and during the corner post argument, several of the justices made specific reference back to, well, what if we do this in Chevron and what if we do that in Chevron and we decide to stay here? And of course, that set the world and the commentators completely crazy because they thought they were signaling what was gonna happen in Chevron. I don't think that's true at all. So there will be this period of agencies having to adopt to a new world, I don't think that's a bad thing because we'll have greater regulatory certainty and greater predictability. And as somebody who has called on and written extensively about the need in this country for greater energy infrastructure of all kinds, having regulatory insert certainty will only lead to greater investment and have the kind of energy future that I think we all want to see. So I think there will be this initial phase where the agencies have to adapt and adjust. I think that will be good. And again, I'm glad we're all sitting. It may actually be a time or two where an agency says, we really wanted to do X, but Congress, we didn't have the authority to do it. Can you please help us out? Could happen. I wouldn't take a bet on FanDuel about that, but could happen and I don't think that's bad. So the interplay between what will happen in Chevron and Coronapost is very important to watch, but I assume that the court did not add, that's the second Chevron case just to do nothing as some of my colleagues have said. So let's not talk about the other case that I think is really important and I have been fighting about for a long time. And that's enforcement cases that are brought before agencies. Shortly after Congress passed the Energy Policy Act of 2005, giving FERC major new civil penalty authority a million dollars a day per violation, we brought the very first challenge to the ability of FERC to try that enforcement case before an in-house ALJ. And in that case, we argued the Seventh Amendment relying on toll, as well as I believe we were one of the first, if not the first to raise one of the appointment clause questions. We argued as well as the court ultimately adopted, unfortunately, many, many years later, that when it came to challenges based upon structural constitutional issues that you did not need to go through the entire agency process before you got a resolution on that. And unfortunately, in those initial cases that went on 2005 forward, we kept getting turned down on procedural grounds, on right-ness, on Thunder Basin grounds. We could never get a court to actually address the merits of some of these cases and then Axon and Cochrane come along and now all of a sudden we have drarkasy. I should mention that we did file amicus briefs in drarkasy on behalf of two clients. I feel quite strongly about it and I will, you'll hear in a second, sort of how my view of drarkasy plays out. On drarkasy, I truly believe that cases that are grounded in fraud or common law fraud require to be heard in article three courts with the right to a jury trial. I think that is a fundamental precept of law. I think that was clear when you look at some of the original and we laid all this out in one of our amicus briefs. Imagine you're an associate in a law firm and you've been given the assignment to go read treatises from the 13 and 14 and 1500s and 1600s to talk about common law. And at first they found it to be a ridiculous assignment and then some of them actually enjoyed it, much to my surprise. But it was clear that the founders thought that common law fraud cases required a trial by jury. I do not think, and we've made this argument and Justice Kavanaugh noted this during the oral argument, I do not think that Congress can simply refashion a type of common law fraud cause of action and say that because we've labeled it or we've given it a new title that it can be heard by an administrative law judge and allow the process to play out before an administrative agencies. I think that is fundamentally unfair. I think it ends up being problematic for a number of reasons which I'll talk about in a second. Second, I do not buy the public rights, private rights, distinction that seems to have gained a great deal of foothold in a number of these cases. By their very nature, civil penalty cases are quasi-criminal. They seek to take away from someone their property. They seek to take away in many cases significant sums of money. I believe Congress, I believe that the founders intended these kinds of quasi-criminal cases to be heard in Article III courts with the right to a jury trial. And I think under a properly informed historical context, the public rights doctrine should not be used to whittle away at the rights to a jury trial when the founders in the Constitution is clear on this. One of the main reasons why we have some of the protections in the Constitution were to get away from some of the star chamber-like processes that occurred in England. So I don't think the court should use that distinction to shield agencies from having to go to federal courts. Now what's interesting about this is a number of the agencies are starting to see the winds blow that direction. And last, I guess it was last summer, after the court took the Jarkesy case, there was this announcement that the SEC had found that there may be, may have been, a potential ex parte communications between their enforcement staff and some of their advisory staff. They can tell whether in fact it occurred or not, but rather than spending a lot of time doing case-by-case analysis, they were dismissing 43 in-house enforcement cases. 43 in-house enforcement cases were dismissed after Jarkesy was cert granted. Coincidence? I don't think so. And I think you're seeing more and more agencies sort of understand that that is the case that where the court is ultimately gonna head on this. The court has never definitively defined the distinction between public and private rights. I don't think, it will be interesting to see if they get to it now in the Jarkesy case. Obviously, we heard a great deal about it during the oral argument. Civil penalty cases should be heard in Article III courts. And I think as a former general counsel of a federal agency, but also as somebody who defends a lot of these cases, I think it's really important to recognize that two things can be true at once. The government can have a robust and rigorous enforcement regime at the agencies while also fully protecting the rights of litigants to full due process. You can have a robust enforcement program and respect litigants' rights to have applied to their cases, the federal rules of evidence, the federal rules of civil procedure, as well as the right to a jury trial. And in a number of these in-house proceedings, those rules are simply advisory. Administrative law judges are not bound by them. So I have been in cases at administrative agencies where rank and utter hearsay has been relied on in dispositive ways, nothing of course that the two judges sitting here today have ever done. But it happens. And so I think it's something that's very important. I don't want to spend a lot of time on the major questions, doctrine, I think my colleagues have addressed it, but I will note again another little piece of inside baseball here. Recently, the president announces intention to nominate three new members to the FRSC. It didn't get a lot of attention, but one of the nominees just happened to be the Solicitor General of West Virginia who is the successful proponent in the major questions case on the EPA versus West Virginia case. Lindsay C. who happened to be associated of mine a couple years ago, she's a brilliant lawyer, very, very qualified, but there is no question that there was a deliberate intent on behalf of the Republicans in the Senate to put somebody on that agency who can provide a more constitutional framework to how that agency conducts its business. I'll leave you with this. Shohei Utani and Aaron Judge combined do not have the batting average that most in-house agency enforcement lawyers have. At the FERC, FERC enforcement staff has never lost the case. At the SEC, up until recently, when they've sort of stopped doing this, they only lost 8% of the time. It cannot be that only cases that come that far are only the most meritorious. There is a real day-to-day impact on not having sufficient due process in these civil penalty cases. It has a huge impact on the litigants. It's something that can be cured by going to Article III courts. The Appointments Clause issue, I believe, is a double-edged sword. If the courts ultimately find that four-cause removal violates the Appointments Clause and that ALJs can be removed for cause, you then have to then get to the end of the process which is you then have to show that the ALJ decision was not consistent with the policies of the president and the administration. The court has basically said that. Could you imagine handing senior officials in the White House, let alone the president, and ALJ's decision saying, what do you think about this, Mr. President? So the Appointments Clause problem is a far different issue. I don't think the court will reach it. Hopefully they won't because it works both ways. And Professor Lubbers and I were talking about this before. It works both ways. I don't know how it's gonna get decided. I think they will decide the Seventh Amendment issue and say they don't need to reach the other two questions and then we'll go on for there. So thank you for listening. I look forward to your questions. And again, Judge Frohlich, thank you for inviting me today. Thank you very much. Well, I want to thank each of our panelists. And in the brief time that remains, I'd like to give each panelist an opportunity in a minute or two to respond to anything that they had heard from the panelists who either preceded them or followed them. So why don't we start with you, Kristen, you can have the first of the last words. So, and I'll try to be very clear. You know, look, I live outside Washington D.D. Bubble. I'm out here in the middle of America in Minnesota. But when we start talking about the Supreme Court as a right-wing playground and we start showing maps charts with blue and red, that fails to capture an awful lot of what's going on. I mean, one of the things I noted from the chart of the blue and red with the courts was that for all of the complaint of the circuit courts being dominated by right-wing judges, well, half of them are governed by, half of them have a majority of blue judges. So I just, and when you talk about opinions that, well, you've never known a Trump judge who upheld an opinion that, or upheld an agency interpretation under Chevron that they disagreed with. You know, I'll point to one case from 2023, Solar Energy Industry Association versus FERC, in the Ninth Circuit where Judge Miller castigated Judge Bumatay for not applying Chevron. You know, and the court applied Chevron to FERC to FERC. You know, it's, you also have to be careful with district court cases. You know, one of the realities in our current circumstance is that it's not that hard to forum shop and find a district court judge to rule how you want the district court judge to rule. The real question comes up with what happens later. And the reality right now is our political climate, including congressional paralysis is such that there's a lot of pressure on a lot of agencies to push the boundaries of statutory interpretation to accomplish policy and political goals that the statutes just don't support. So it's hardly surprising that the courts are, you know, cutting back on some of that. You know, the last thing I will point out with respect to chipping away at agency authority, you know, I've been doing administrative law for a while now, you know, and I remember as far back as the free enterprise case that came up where we started talking about, you know, the Roberts court chipping away at agency authority. Well, we've been chipping away at agency authority for almost 15 years now and how much has really changed on the ground? I mean, we have to talk about the distinction between doctrinal change and empirical change with respect to outcomes. You know, maybe we will get far enough down the slippery slope that we'll see a really big difference in administrative governance, but we're not there yet after 15 years of chipping away at agency authority. So, you know, from my perspective, and I brought this up in last year's panel, it seems to me that the Roberts court is going out of its way, even as they make some doctrinal shifts in a formalist and more originalist direction from a functionalist and more purposivist one, that they go out of their way with remedies and otherwise to try to find ways to keep from truly causing upheaval in the administrative state. And that seems to be what they have accomplished so far. Again, maybe this will change. I don't know, maybe the sky will fall in you, but it hasn't fallen yet and I'm just skeptical along with the last panelist, I'm skeptical that it will. And I'll leave it there. Okay, Professor Lovers. I guess my answer on that is we'll see. I mean, if you keep whittling away at a piece of wood, eventually you're not gonna have that stick anymore. But I wanna focus my remarks on APA adjudication. I mean, APA adjudication was a compromise. It was the biggest issue in the run up to the APA. How should APA adjudication work? And they came up with the compromise of having a formal trial type adjudication with these specially authorized administrative law judges, now, as we call them now, to decide these cases. And that process is basically consonant with due process. If you look at Goldberg versus Kelly, the high water mark of procedural due process, the formal adjudication procedures of the APA basically align with them. So if you wanna attack administrative adjudication so you can't really attack it based on the due process clause, so what can you do? Well, okay, there's the jury trial, right? Well, how can you attack based on the jury trial, right? You have to go back to common old England and look and see whether or not these procedures were the same as some private lawsuit in old England. I mean, the Supreme Court's willingness to go back and look at what was going on in 1789 in the gun area. What was, whether what kind of guns were available then? What kind of gun controls allowed then? This is kind of similar. I mean, what kind of cases were being heard in common law England should control what kind of cases Congress, using its necessary and proper clause, can decide to send to agencies to adjudicate. I mean, I think that's a little bit absurd. So when I was listening to the jargacy case, I was thinking, you know, the objections to the process should be framed in due process claims if it's an unfairness issue and it's not really an unfair process. I don't think, I mean, it's been an existence since the APA at least without ever being found to violate due process. So I think we have to keep in mind that the necessary and proper clause. And if you take Bill's unwillingness to change from, you know, to allow civil penalty cases to be heard in a civil forum, I mean, to take that to its logical extension, you couldn't even move traffic ticket cases away from out of the criminal process to a traffic adjudication agency. Why have all the states done that? You know, I mean, they're saying, it's obviously a different type of case, but I think some of the same reasons is why Congress has moved a lot of civil penalty, a lot of enforcement cases out of the criminal process to a civil process, first of all, and then into the agency rather than the court collection process. The last point I'll just make, this is unrelated, but I'm kind of surprised, this is for the NRC. I'm kind of surprised that for my Yankee is still standing. You know, when you think about it, that case is a pro-agency case, you know? The court said that lower courts don't require additional procedures that aren't in the statutes. Well, you know, I'm a little surprised that this court is still willing to uphold that, which they did a couple years ago. I will agree that it's really unfortunate that our system has become so politically polarized that in talking to reporters, they feel like they have a responsibility to identify who appointed the judge when there's a major ruling. My personal view is about half of the 220-plus judges that were confirmed during the Trump administration are really good judges. How can you tell? They were confirmed like 75 to 25 votes in the Senate and they're not the ones that are doing these extreme rulings, but so many of the others were on straight party-line votes, even in the face of unqualified ratings at times and that's why we're at where we are now. On the point with respect to, is this making a difference? Well, sometimes what the Supreme Court's doing is totally symbolic. In the West Virginia versus EPA case, they took the clean power plan, which had never gone into effect because of the Supreme Court's stay, which the Biden administration said, we're never gonna put it into effect, but they want to send a message. We wanna announce the major questions, doctor. We wanna say bad, EPA, and so they did it and in fact, the reason that they initially got the emergency stay was because it was argued this would be so damaging to the economy to reduce coal use to only 25% of electrical generation and in the absence of the clean power plan market forces because we're moving away from coal dramatically, already reduced that to below 20%. So it was completely irrelevant, but in the Sackett case that was decided last year, in one fell swoop, the Supreme Court basically eliminated federal protections for the vast majority of wetlands that is having a real impact on the ground right now and the only way to deal with it is to try to get the states to come and enhance their protection support. I'll just make two really quick points. One, I think a lot of reason why we spent a lot of time in jarkesy focusing on what the founder has meant and wrote about was because the Chief Justice seems to really find that persuasive and he is the sort of keeper of the flame on administrative law in this court and so you have to sort of dig in and deal with that because there are a countless number of cases where he has found that to be persuasive. I'm gonna tell you exactly why the clean power plan stay was put into effect and it's not what you think it is. It was put into effect because at the time the then administrative EPA gave a speech in which she said that all we gotta do about the clean power plan is to get past any kind of stay at the district court, the Federal Court of Appeals of the Supreme Court because just like we had beaten back stays on the mats, the mercury rule, if we can get past the stay, it'll be three or four years before we get to the merits and by then most of the utilities in the country will have already had to comply with this rule even if it's turned out to be invalidated. That enormously annoyed the court undoubtedly. So I think that's a, the clean power plan is a whole kettle of ridiculous fish that I find difficult to- That was 2016. Yeah. And the first compliance deadline was 2030. No, I'm talking, I agree, but the mats rule was why they were- That's because the utilities were doing that anyway. Well- It was only the ones that were never gonna come. No, well, we can have a whole debate about the mats rule because I represent a lot of the utilities that might disagree with that. But the other point is on the district court point, what happens when we do get to district courts on these enforcement cases is the local US attorneys, the local ASUSAs don't try the cases themselves. It ends up being the agency lawyers and somebody may be from the Department of Justice that comes in and the local US attorney's office or sort of local counsel. So I don't think that's a huge impediment to that process going forward. I think that can be managed. Thank you. I wanna thank the audience, both those in person and those of you who are watching remotely for your attention and thoughtful questions. I know we ran out of time and so we'll be able to take those questions with our panelists outside in the corridors and in the agency lobby if you have questions that we obviously couldn't get to today. I especially wanna thank our distinguished panel for sharing their thoughts and perspective on these very timely subjects. Time will tell the ultimate decision the direction the courts will take in their review of cases involving greenhouse gases, interim storage facilities, and a host of other administrative actions. The economic and political significance of congressional delegations will be challenged and the extent to which clear congressional authorization exists for agency actions will no doubt be raised time and again. I have two items as we conclude this session. This is the legal session of the 36th annual RIC. For those of you who plan ahead, next year's RIC, the 37th annual RIC will be held March 11th through 13th, 2025. The ASLBP will rely upon your feedback from today's session in planning for next year's RIC's legal session. So your feedback is important to us. You're invited to scan the feedback QR code and share any thoughts or insights you might have pertaining to this session or to the conference in general. You can also provide feedback through the platform by selecting the feedback tab on the session or by accessing the link from the RIC website. Finally, the ABA section on Environment, Energy, and Resources Nuclear Law Committee and the ABA Infrastructure and Regulated Industry Section Nuclear Law Committee invites all of you to a happy hour in the lobby bar. Our onsite panelists will be available outside this room and in the lobby bar if you have any remaining questions that arose from today's session. So with that, I thank you all for your attendance and we stand adjourned.