2025 Annual Litigation Trends Survey confirms an unpredictable regulatory landscape after Loper Bright

Regulated businesses have experienced marked uncertainty since the United States Supreme Court upended the Chevron doctrine in Loper Bright Enterprises v. Raimondo on June 28, 2024. This landmark decision changed the regulatory landscape tremendously by holding that courts should no longer defer to federal agency interpretations of ambiguous statutes, as previously mandated in 1984 under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. Instead, post-Loper Bright, courts are called to make their own independent determinations of “the best reading” of statutory text—regardless of agency interpretations.

The Norton Rose Fulbright 2025 Annual Litigation Trends Survey gauged uncertainty post-Loper Bright

The Norton Rose Fulbright 2025 Annual Litigation Trends Survey reflects just how widespread this uncertainty is being felt. The survey finds that 73 percent of all respondents subject to US regulations, including in-house counsel and litigation leaders, anticipate greater uncertainty in regulated industries. This reported uncertainty stems from concern that—without the agency’s interpretation to rely on—there will be conflicting interpretations of the same statute, rule or regulation across different judicial circuits or districts, making it difficult for businesses to comply with such statutes, rules or regulations.

The survey reflects further concern that Loper Bright will generate an influx of litigation against agencies, overwhelm the courts and make it more difficult for companies to keep up with regulatory changes and, importantly, settle cases efficiently. The Norton Rose Fulbright survey reports that in 2024, the average number of regulatory proceedings per respondent grew from 3.9 to 4.4, with more respondents involved in at least one regulatory proceeding in 2024 (70 percent) as compared to those in 2023 (61 percent). Respondents found that the new regulatory landscape contributed to the increased difficulty in reaching settlements.

As a new administration reshapes the regulatory landscape and courts begin to review petitions against federal agencies that implicate Loper Bright, the outlook for the interplay between courts and regulatory rulemaking may come into focus or prove increasingly murky.

Many circuits have ruled that an agency’s interpretation of the federal statute at issue is the “best reading,” relieving some uncertainty post-Loper Bright

Six months after Loper Bright was decided, most, if not all, circuit courts have heard cases challenging agency interpretation. The majority of cases, including in the Second, Third, Fifth, Sixth, Ninth, Eleventh and DC Circuits, have upheld the agency’s interpretation of the statute at issue. Although these courts independently determined “the best reading” of the statute, the outcomes were the same as if the overturned Chevron doctrine was applied.

Still, there are a number of decisions—such as in the Fourth, Fifth, Sixth, Eighth and Eleventh Circuits—in which the court held that its independent statutory interpretation differed from the agency’s reading. While the relatively fewer number of such decisions deviating from agency interpretation may signal that there will be more consistency in the regulatory landscape than many worried, it remains too early to know for sure.

The Sixth Circuit provided one of the earliest examples of a post-Loper Bright court discarding an agency’s interpretation and narrowing agency control

On January 2, 2025, the Sixth Circuit provided one of the earliest decisions applying Loper Bright in In re MCP No. 185, in which the court unanimously rejected the Federal Communications Commission (FCC)’s 2024 order that broadband internet service providers offer a “telecommunications service” under the Telecommunications Act of 1996 and therefore may be subjected to the FCC’s net-neutrality policies.

The court used “traditional tools of statutory construction” and found that broadband internet service providers merely offer an “information service” under the act and therefore the FCC lacks statutory authority to impose more stringent regulations applicable to telecommunications companies against these providers, such as net-neutrality rules. The court analyzed the ordinary meaning of the language Congress adopted in the statute and cited dictionaries from the time the act was written. The court also looked to Congress’ stated purposes in the act and analyzed the history of broadband internet and held that all three considerations, text, purpose and history, pointed towards information service classification.

In sum, the court’s “best reading” of the statute conflicted with the agency’s previous interpretation, narrowing the FCC’s control over broadband internet service providers. This decision therefore provided insight into how courts will analyze future petitions against federal agencies and what the effects may be if the agency’s reading is not the “best reading.”

In addition, the court directly addressed uncertainty concerns post-Loper Bright. The court suggested that the Loper Bright doctrine can create more certainty for regulated businesses because it disallows a “flip-flop,” or change, in administration to implicate deference to a different interpretation of the same federal statute. The Sixth Circuit reiterated that, as stated in Loper Bright, older cases applying the Chevron doctrine are still subject to stare decisis even though the methodology of statutory interpretation has changed. However, the court did not opine on the potential impact of different jurisdictions interpreting the same federal statute differently. Such possible circuit splits may require resolution by the Supreme Court.

Takeaways applicable to businesses that deal with regulatory interpretation

Going forward, as the new administration’s approach to regulation takes shape, regulated businesses will need to be vigilant in watching both the rulemaking process and the judicial decisions applying Loper Bright to be informed of “the best reading”—and therefore the only permissible interpretation—of ambiguous, applicable statutes.