Case: 25-7831, 03/10/2026, DktEntry: 81.1, Page 23 of 43
not permitted to “defer[] to an agency’s conclusion that state law is pre- empted.” Id. at 576. Separate caselaw also taught that Courts should be “reluctant to find” preemption in areas “traditionally governed by state law.” CSX Transp., Inc. v. Easterwood , 507 U.S. 658, 664 (1993); accord Altria Grp., Inc. v. Good , 555 U.S. 70, 77 (2008). Of course, even after Loper Bright , there may be times when an agency’s opinion about statutory meaning carries “particular ‘power to persuade.’” 603 U.S. at 402 (quoting Skidmore v. Swift & Co. , 323 U.S. 134, 140 (1944)). But such power depends on the circumstances. The persuasiveness of an agency’s opinion involves various factors including “the thoroughness evident in its consideration, the validity of its reason- ing, [and] its consistency with earlier and later pronouncements.” Id. at 388 (quotation omitted). Agency interpretations “issued contemporane- ously with the statute at issue, and which have remained consistent over time, may be especially useful in determining the statute’s meaning.” Id. at 394. By contrast, agency positions “developed during the course” of litigation are naturally more questionable. See Alaska v. Fed. Subsist- ence Bd. , 544 F.3d 1089, 1095 (9th Cir. 2008). Along similar lines, when an agency opines on preemption “without offering States or other
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