by Ann E. Marimow (Washington Post) The Supreme Court on Friday curtailed the power of federal government agencies to regulate vast swaths of American life, overturning a 40-year-old legal precedent long targeted by conservatives who say the government gives unaccountable bureaucrats too much authority.
For decades, the court’s decision in Chevron U.S.A. v. Natural Resources Defense Council directed judges to defer to the reasonable interpretations of federal agency officials in cases that involve how to administer ambiguous federal laws.
Writing for the majority in the 6-3 ruling, Chief Justice John G. Roberts Jr. said that framework has proved “unworkable” and allowed federal agencies to change course even without direction from Congress.
The court is finally ending “our 40-year misadventure with Chevron deference,” Roberts said, reading parts of his opinion from the bench.
The court’s three liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — dissented, with Kagan writing that the majority has turned itself into “the country’s administrative czar,” taking power away from Congress and regulatory agencies.
“A rule of judicial humility gives way to a rule of judicial hubris,” she said, reading part of her dissent from the bench.
The precedent, established in 1984, gave federal agencies flexibility to determine how to implement legislation passed by Congress. The framework has been used extensively by the U.S. government to defend regulations designed to protect the environment, financial markets, consumers and the workplace.
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Supporters of Chevron, including environmental groups, labor and civil rights organizations, and the Biden administration, told the court that Congress often writes broad statutes to give government experts the leeway to address emerging complex problems. Overturning or scaling back the legal precedent, they said, will hamstring and weaken federal agencies and shift power to the courts and Congress.
Opponents of Chevron, in contrast, told the court that the framework unfairly tips the scales in litigation by requiring judges to systematically favor government regulators over those challenging burdensome regulations. Chevron has allowed federal agencies to flip-flop and impose different rules each time a new administration takes over, they said, leaving judges with little choice but to defer to the changing interpretations of agency officials. READ MORE
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- SCOTUS delivers another blow to Biden’s EPA (Politico Energy Podcast)
- Chevron Overturned by the Supreme Court: The Impact on Energy (Kilpatrick Townsend & Stockton)
- Supreme Court Overturns Chevron Doctrine: What it Means for Climate Change Policy (Inside Climate News)
- Rejection of the Chevron Doctrine Casts Uncertainty on Future Climate Action (Environmental and Energy Study Institute)
- Good Neighbor Plan for 2015 Ozone NAAQS (U.S. Environmental Protection Agency)
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- Supreme Court Tosses Chevron Doctrine -- Supreme Court Overturns Legal Doctrine; Decision Could Benefit Farmers (DTN Progressive Farmer)
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- Chevron’s first solar casualty (Politico's Power Switch)
- EPA lost big at the Supreme Court this term. There’s more to come. -- The justices aren’t shying away from rebuking federal regulators for overstepping their authority. (E&E News Greenwire)
- Supreme Court ruling may threaten role of science in U.S. rulemaking: Decision to abandon Chevron doctrine could have far-reaching implications for many government programs (Science)
- Chevron Reversal Could Impact EPA Clean Air Rules (Energy.AgWired.com; includes AUDIO)
- Post-Chevron era tests courts’ readiness to tackle science: An error in a recent Supreme Court ruling on an EPA smog regulation raised questions about the ability of courts to handle technical information. (E&E News Greenwire)
Excerpt from Politico's Power Shift: Environmentalists are particularly concerned that the 6-3 decision to toss the Chevron doctrine — one of the most widely cited precedents in the court’s history — could undercut a flurry of ambitious rules from the Biden administration to slash planet-warming pollution.
The ruling “undermines vital protections for the American people at the behest of powerful polluters,” said Vickie Patton, general counsel for the Environmental Defense Fund, in a statement.
For 40 years, the Chevron doctrine directed courts to defer to federal agencies’ readings of unclear statutes, as long as those readings are reasonable. The idea was that agency staff, including scientists and economists, had more expertise than judges in interpreting abstract concepts such as “in the public interest.” But conservative legal theorists have argued it’s an abdication of judicial responsibility.
And while Chevron has fallen out of favor in recent years with the conservative-dominated Supreme Court, lower courts have still used it to uphold agency rules. Until now.
...
But some environmental advocates say they are less worried about climate regulations, which they say are on strong legal footing without relying on the Chevron doctrine.
While the fall of Chevron marks a major victory for conservative activists whose mission has long been to shrink the federal government’s power, it could also stymie the next president’s agenda no matter who wins the White House this fall.
“A new administration won’t be able to adopt an alternative interpretation of a statute and expect judicial deference if a prior court has ruled another way,” said Cary Coglianese, a regulatory expert at the University of Pennsylvania Carey Law School.
Life after death: While the court’s decision marks a major blow to agencies’ authority, it may not be permanent. The court did not overturn the doctrine on constitutional grounds. That means Congress could step in and reinstate it, Coglianese said. READ MORE
Excerpt from Kilpatrick Townsend and Stockton: The Loper decision does not retroactively overturn all the cases where Courts have relied on Chevron in making determinations aligned with the underlying agency determination, but it does endanger them. Chief Justice Roberts specifically mentions that any such cases are still subject to statutory stare decisis, but there is nothing further in the opinion to protect prior court precedent affirming agency positions based on Chevron.
This all means, in the case of energy regulation, that past Court precedent affirming agency decisions based on the Chevron Doctrine, such as in SEIA v. FERC, et al. (commonly referred to as the “Broadview” case) are at risk of being overturned on these same bases. The death of Chevron and subsequent regulatory changes will greatly affect regulation of all industries in the U.S., with energy being no exception.
Footnotes
1 Available here: https://www.cadc.uscourts.gov/internet/opinions.nsf/8B5F05D6EC9CBEF38525895600546F39/$file/21-1126-1985837.pdf READ MORE
Excerpt from Inside Climate News: “To the extent that Congress and the Executive Branch may disagree with how the courts have performed that job in a particular case, they are of course always free to act by revising the statute,” Roberts wrote.
But Congress has backed away in recent decades from substantive stand-alone bills like the Clean Air Act, and has included much of its recent health and environmental decision-making in must-pass budget legislation that can leave lawmakers’ intent subject to interpretation. Experts say the end result of the decision to overturn Chevron will be increased power for the courts and less for the executive branch.
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Ironically, the 1984 case articulating the deference principle, Chevron v. Natural Resources Defense Council, was an anti-regulatory decision. In that case, a unanimous court upheld a Reagan administration air pollution regulation that environmentalists challenged as too weak.
That rule was issued by an Environmental Protection Agency then led by the late Anne Gorsuch, a fierce opponent of regulation. Her son, Supreme Court Associate Justice Neil Gorsuch, today wrote a lengthy concurring opinion affirming the wisdom of sweeping away the Chevron precedent, finding the reason in the roots of common law, from ancient Roman law to the efforts of King George to control the American colonies.
“Today, the Court places a tombstone on Chevron no one can miss,” Gorsuch wrote. “In doing so, the Court returns judges to interpretive rules that have guided federal courts since the Nation’s founding.”
...
In the years since Chevron was decided, courts invoked the doctrine repeatedly to uphold regulations that industries chafed at, making the case one of the most-cited in administrative law (it appears in more than 41,000 cases, according to Google Scholar.) Advocates of unfettered industry began to view the legal principle as a tool of government overreach, and called for the courts to abandon it.
No one articulated that view more memorably than Gorsuch when he was a federal appeals court judge, just months before he was hand-picked by the conservative Federalist Society to be President Donald Trump’s first addition to the Supreme Court.
“What would happen in a world without Chevron? If this Goliath of modern administrative law were to fall?” Gorsuch wrote in a 2016 immigration case. Congress would write laws, agencies would “offer guidance on how they intend to enforce those statutes,” and judges would “exercise their independent judgment” on those laws, not bound by what agencies said they meant, he wrote. “It seems to me that in a world without Chevron very little would change—except perhaps the most important things.”
Chevron’s Climate Stakes
When it comes to President Joe Biden’s effort to put a national climate policy in place, the most important things may well be the outcomes of a slew of lawsuits filed against the Environmental Protection Agency and other federal agencies in the past year.
These lawsuits, most of them in the names of Republican-led states that have been joined by fossil fuel industries, essentially accuse the agencies of overstepping their legal authority with regulations to curb greenhouse gas emissions or otherwise address climate change.
...
The agencies in most cases are applying broad legal authority Congress gave them years before the dangers of climate change were fully recognized or even contemplated. The EPA’s regulations to cut carbon pollution from the nation’s two leading sources—vehicles and power plants—are based on the Clean Air Act, passed in 1970 and amended in 1990. The Securities and Exchange Commission is seeking to standardize corporate disclosure of climate risks by relying on Great Depression-era laws that require publicly traded companies to fully inform investors of factors that could affect their financial conditions.
In some cases agencies have more explicit direction from Congress than others—for example, the Clean Air Act provisions on vehicles are more specific than those governing power plants. But in virtually all pending challenges to Biden policy, foes have identified what they see as legal ambiguities, or faults in agencies’ interpretation of the law.
“It’s very hard to write statutes in technical, controversial areas and not have a shred of ambiguity,” said Lisa Heinzerling, a professor at Georgetown Law School, in an interview prior to the decision. “Even if someone is really trying to be careful, people with enough money and enough lawyers can, after the fact, really bring ambiguity out of something that was intended to be clear.”
Now that Chevron has been overturned, the Supreme Court has placed the onus squarely on judges to interpret regulatory law, which typically involves application of science and knowledge of the latest technological advances.
In a scathing dissent, Associate Justice Elena Kagan said the court had removed “a cornerstone of administrative law,” upending the structure that supported much of the federal government’s functions.
The Chevron doctrine “has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”
Contrary to Roberts’ view, Kagan said that Congress has assigned federal agencies to address interpreting the law in regulatory areas, which often involve scientific or technical subject matter. “Agencies have expertise in those areas,” Kagan wrote. “Courts do not.” Now she said such decisions will be made by courts that have no political accountability and no proper basis for making policy.
“A rule of judicial humility gives way to a rule of judicial hubris,” she wrote.
...
On Thursday, in a 5-4 opinion by Gorsuch, the Supreme Court put a hold on the EPA’s effort to address the difficult problem of smog-forming pollutants that drift across state lines, saying the agency had not adequately explained how it would address the cost-effectiveness of the “Good Neighbor” program over time. (Associate Justice Amy Coney Barrett broke from other conservatives in a dissenting opinion, warning the court was downplaying the EPA’s role under the Clean Air Act and leaving “large swaths of upwind States free to keep contributing significantly to their downwind neighbors’ ozone problems for the next several years.”)
Especially relevant to climate law was the court’s 2022 decision in West Virginia v. EPA case, written by Roberts and also settled 6-3 with Republican-appointed justices in the majority. In that case, the Supreme Court set a new standard of skepticism for federal agency authority on “major questions” of national importance, throwing out the Obama administration’s approach for cutting carbon emissions from power plants.
That case, and now the loss of Chevron deference, could well tip the balance against climate policy in the courts, experts say. A case in point is the litigation (Loper Bright Enterprises v. Raimondo, and Relentless, Inc. v. Department of Commerce) that was before the court, brought by fishing operations against the agency charged with enforcing fishing law in U.S. waters, the National Marine Fisheries Service, or NMFS.
For three decades, NMFS has had a program of putting scientific observers on board fishing vessels to prevent overfishing and ensure compliance with other federal laws, like those to protect endangered species. Lack of observer coverage has been a chronic problem in the underfunded program and in 2020, to increase coverage to address strain on the important Atlantic herring fishery, in part due to climate change, NMFS set new rules requiring that the fishing operations pay the cost of the observers.
The fishing operations ended up being reimbursed for 100 percent of their costs (about $30,000), but the Supreme Court did not focus on such details. Instead, it focused on what it viewed as the correct roles of agencies, Congress and the courts. Roberts wrote that it was an error for courts to give the executive agencies the benefit of the doubt whenever there was a question of the law’s meaning.
“By forcing courts to instead pretend that ambiguities are necessarily delegations, Chevron prevents judges from judging,” Roberts wrote.
Tara Brock, Pacific legal director and senior counsel for the advocacy group Oceana, said the result would be less monitoring of the industry at a time when more is needed.
...
In the majority opinion, Roberts, addressing a problem that some legal scholars have warned about, said that the court was only overturning Chevron, not the tens of thousands of cases that relied upon it. The decision does “not call into question prior cases that relied on the Chevron framework,” he wrote. “The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology.”
Although those old cases may stand, the Supreme Court has made clear that in new cases—including those already making their way through the courts on Biden’s climate policy—federal courts, not the regulators, should decide what the law means. READ MORE
Excerpt from Reuters: While the ruling from the nation's highest court could make it harder for federal agencies to defend stringent regulations around a variety of environmental, healthcare and other laws, the attorneys told Reuters that Biden’s efforts to slash planet-warming greenhouse gas (GHG) emissions from cars and trucks could be particularly vulnerable.
That’s because the rules target mobile sources of greenhouse gas rather than stationary ones like power plants, even though environmental laws are ambiguous on whether regulators have the mandate to do that.
"There have been longstanding debates about whether and to what extent the (U.S. Environmental Protection Agency) has the authority to regulate emissions from mobile sources," said Sherry Jackman, an environmental litigator and compliance counselor at Greenberg Glusker in Los Angeles.
...
David Pettit, senior attorney for climate and energy with the Natural Resources Defense Council, predicted that critics would use the Chevron decision to launch new attacks on vehicle rules that regulate greenhouse gases.
"One of the ways that industry, particularly the oil industry, is going to try to use the Chevron decision is to say that EPA did not have the legal ability to decide that the Clean Air Act covers GHG emissions from mobile sources, because it doesn't say that in the Clean Air Act," Pettit said.
...
Interest groups including automakers, oil companies, corn and soybean growers have already launched myriad administrative and legal challenges to the Biden administration's plan to cut vehicle emissions, arguing that the rules would force everything from passenger cars to 18-wheelers to go electric.
They have had success watering down EPA tailpipe emissions rules in the past and some of their challenges are still pending and could be subject to the Supreme Court's Chevron decision. READ MORE
Excerpt from Axios: Justice Elena Kagan, in a dissenting opinion, wrote that the ruling Friday was "yet another example of the Court's resolve to roll back agency authority, despite congressional direction to the contrary."
- "Congress knows that it does not — in fact cannot — write perfectly complete regulatory statutes," she wrote. "It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court."
- She warned the decision "is likely to produce large-scale disruption."
- "In one fell swoop, the majority today gives itself exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law."
- "The majority disdains restraint, and grasps for power."
Context: The ruling marks another major victory for conservatives, who for decades have sought to limit the federal government's ability to regulate businesses.
- In the wake of the court's ruling, it's expected that more federal rules will be challenged in the courts and judges will have greater discretion to invalidate agency actions.
- The decision comes one day after the Supreme Court curtailed federal agencies' use of administrative law judges in another blow to the administrative state.
...
- Under Chevron deference, courts would defer to how to expert federal agencies interpret the laws they are charged with implementing provided their reading is reasonable — even if it's not the only way the law can be interpreted.
- It allowed Congress to rely on the expertise within the federal government when implementing everything from health and safety regulations to environmental and financial laws.
Zoom in: However, Chevron was challenged in two separate cases over a National Marine Fisheries Service regulation meant to prevent overfishing on commercial fishing vessels.
- Fishing companies challenging the regulation claimed the doctrine violated Article III of the Constitution by shifting the authority to interpret federal law from the courts to the executive branch.
- They also claimed it violated Article I by allowing agencies to formulate policy when only Congress should have lawmaking power.
The other side: The government argued that the doctrine had safeguards within it that prevented agencies from usurping Congress's lawmaking authority.
- It noted that Chevron only applied to ambiguous text in laws passed by Congress and instances in which lawmakers had given interpretive authority to an agency.
- The doctrine was also necessary to limit federal judges' abilities to make public policy when they may not have the expertise to do so and aren't subject to democratic accountability, the government said.
Between the lines: Lawyers who worked pro bono to represent fishing companies involved in the cases are also staff attorneys for Americans for Prosperity, a libertarian political advocacy group funded by billionaire Charles Koch, the New York Times reported earlier this year.
- The political network associated with Charles Koch and his late brother, David Koch, have long championed efforts to get cases before the Supreme Court that, if decided in their favor, would roll back the federal government's regulatory powers.
- The Koch network also successfully attracted Supreme Court Justice Clarence Thomas, who voted against the doctrine, to speak at at least one of its donor events in 2018, ProPublica reported last year.
- It's unclear who purchased Thomas' flight to the 2018 event, as he never reported it in his annual financial disclosure form. Thomas has attended at least two of such events in past years.
The big picture: In recent years, Chevron had fallen out of favor of the conservative-majority Supreme Court, which had declined to apply it or cite it in cases which it may once have applied.
- The ruling comes as some federal judges have taken a more active role in overruling agency expertise.
- For example, Texas District Judge Matthew Kacsmaryk last April paused the FDA's original 23-year-old approval of the abortion pill mifepristone in a case that's now to be decided by the Supreme Court. READ MORE
Excerpt from Politico's Power Switch: The law in question — the Public Utility Regulatory Policies Act — required utilities to buy power from small energy projects under certain circumstances. Qualifying projects cannot produce more than 80 megawatts of power.
While the Broadview solar project is capable of producing more, it sent no more than 80 megawatts to the electric grid. So the Federal Energy Regulatory Commission said that counts, and the D.C. Circuit relied on the Chevron doctrine to defer to FERC’s interpretation.
The ruling was heralded as a major victory for the solar industry and an important legal precedent to help clean energy developers sell more power to the grid — a major Biden administration climate goal.
But with Chevron gone, the D.C. Circuit must now rethink its ruling. It could reverse course and rule that utilities do not have to buy power from the Broadview project.
Joel Eisen, a law professor at the University of Richmond, told Niina another option would be for the court to greenlight the project using a different legal rationale, such as something called Skidmore deference. Under Skidmore, a court can defer to an agency’s long-standing interpretation of statutes. READ MORE
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