CRS Identifies Recent Trade Case Decided Under Chevron Following Loper Bright
The Congressional Research Service on July 26 released a report breaking down appellate decisions issued in recent years applying the U.S. Supreme Court's now-defunct Chevron standard of deference. The high court swapped this standard for a requirement of de novo review of federal agencies' interpretations of ambiguous statutes in Loper Bright v. Raimondo (see 2406280051).
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The report said that over the 40 years it was in place, Chevron was applied "tens of thousands of time" by the Supreme Court and appellate courts, all of which deferred to agency interpretations of ambiguous statutes. However, Chevron citations dwindled in recent years, the report noted, though it's seemingly "likely that some of these agency interpretations will be revisited post-Loper Bright," the report said.
This may take the form of live lawsuits filed prior to the Loper Bright decision or new cases "challenging agency regulations that were upheld by some reviewing courts under Chevron step two, in which the new plaintiffs argue that the agency interpretation is not based on the best reading of the governing statute."
The report highlighted one trade-related decision, decided by the U.S. Court of Appeals for the Federal Circuit in 2022, Shanxi Hairu Trade Co. v. U.S. In it, the appellate court sustained the Commerce Department's use of adverse facts available to set the all-others rate in an antidumping duty review on steel nails from China.
Using Chevron, the Federal Circuit said "the statute was silent with regard to the use of AFA-based margins" and that Commerce reasonably said AFA rates would avoid manipulation of the AD rates. The court also upheld the agency's factual findings that the companies under review engaged in a "fraudulent transshipment scheme" and impeded the review by providing "unverifiable information."