A ruling that could have enormous consequences across the federal government should be coming this month, as the U.S. Supreme Court closes out its October 2023 docket. The decision could kill the court’s 1984 “Chevron deference” doctrine, which says courts faced with statutory ambiguity in a case involving federal agency should defer to the agency’s interpretation.
In the 1984 case, Chevron v. Natural Resources Defense Council, the issue of an Environmental Protection Agency air pollution regulation faced the court, where the Clean Air Act did not define what it meant by the term “source.” The court ruled 6-0 that the agency had more expertise than the courts in making a policy decision. The court found, “When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail.”
Conservatives – led by the influential, right-wing Federalist Society, have long argued that Chevron deference was a mistake, empowering federal overreach. Many observers have predicted that a decision due this month will be a 6-3 rejection of Chevron.
The current case is Loper Bright Enterprises v. Raimondo. Loper is a group of Atlantic commercial herring fishermen. They sued the Commerce department over a rule aimed at preventing overfishing. It requires them to have observers onboard to assure they aren’t depleting the resource, and to pay them about $710 per day. They argue that the rule goes beyond the terms of the Magnuson-Stevens Fishery Conservation and Management Act of 1976 and that the agency’s rulemaking process was flawed. They sued.
The fishermen lost at both the federal district court level and at the U.S. Court of Appeals for the D.C. Circuit. Both courts cited Chevron deference in their ruling. The appeals court ruling was 2-1. Loper appealed to the Supreme Court in November 2022 on two grounds: the agency went beyond what the law required in ordering them to pay for the monitors, and they challenged Chevron. The appeals court ruling was 2-1.
In May 2023, the high court agreed to hear the case, but only the challenge to Chevron. The court heard oral arguments January 17. Paul Clement, former U.S. solicitor general in the second George W. Bush administration argued for Loper, while Biden administration Solicitor General Elizabeth Prelogar represented the Commerce Department.
A majority of the justices seemed ready to jettison the doctrine or at the very least significantly limit it. — SCOTUSblog
Reporting for SCOTUSblog, veteran lawyer Amy Howe wrote, “After more than three-and-a-half hours of oral argument on Wednesday, it seemed unlikely that the rule outlined in that case, known as the Chevron doctrine, will survive in its current form. A majority of the justices seemed ready to jettison the doctrine or at the very least significantly limit it…. Although the doctrine was relatively noncontroversial when it was first introduced in 1984, in recent years conservatives – including some members of the Supreme Court – have called for it to be overruled.”
There is a strong hint of what could be coming. The high court in West Virginia v. EPA, also a significant Clean Air Act case, in June 2022 ruled that the air act did not specifically give the agency authority to regulate carbon dioxide emissions, overturning a major Obama administration initiative. In its 6-3 ruling, the court abandoned Chevron deference, instead enshrining a new term of constitutional art, the “major questions doctrine.” Writing for the majority, Chief Justice John Roberts found that in “certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to ‘clear congressional authorization’ for the power it claims.”
In dissent, Justice Elena Kagan wrote, “The subject matter of the regulation here makes the Court’s intervention all the more troubling. Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening.”
The demise of Chevron could have a major impact on a wide swath of federal agencies active in environmental and energy issues. Among others, these are likely to include the Department of Energy, the Interior Department, the EPA, the Commerce Department, the Treasury, the Federal Energy Regulatory Commission, and the Nuclear Regulatory Commission.
Northeastern University law professor Dan Urman, who teaches courses on the Supreme Court, said, “I think Chevron will either be overturned or severely curtailed, and this essentially could dismantle all sorts of regulations and clog up the courts, because then courts would be tasked with deciding whether an agency rule is reasonable as opposed to just letting the agency decide.”
–Kennedy Maize
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