The Supreme Court is set to decide the fate of a landmark administrative law case, Chevron v. Natural Resources Defense Council,[1] during the 2023 term when it hears Loper Bright Enterprises v. Raimondo[2] and determines whether Chevron should be overruled.[3]
Chevron, in which the Supreme Court upheld a regulation from the Environmental Protection Agency (“EPA”) under the Clean Air Act, was first decided in 1984.[4] This decision introduced the famous “Chevron two-step,” which is a test used when the court is reviewing an agency’s construction of a statute that the agency is charged with administering.[5] Under this test, the court first looks to see whether Congressional intent on the question at issue is clear.[6] Chevron’s importance is derived from the second step of this test, which grants deference to an agency’s reasonable interpretation when a statute is ambiguous.[7]
The decision has been particularly helpful for environmental regulations. The Chevron doctrine became a key legal defense in agency’s environmental rules.[8] Administrators that try to tighten environmental regulations can usually find some room in the statutory language to do so.[9] However, not everyone was pleased with this decision. In the years following, several current conservative Supreme Court justices criticized Chevron deference and the decision.[10] Justice Thomas called it a “serious separation of powers issue,”[11] and Justice Gorsuch wrote that “under Chevron…courts are not fulfilling their duty to interpret the law.”[12]
On May 1, 2023, the Supreme Court granted certiorari to hear Loper Bright Enterprises v. Raimondo.[13] Loper is a case brought by a group of commercial fishing companies and involves a challenge to a rule issued by the National Marine Fisheries Service, which requires the fishing industry to pay for the costs of observers who monitor compliance with fishery management plans.[14] The case is a direct challenge to Chevron. The second question of the writ asks, “Whether the Court should overrule Chevron or at least clarify that silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”[15] Administrative law scholars say to expect narrowing, if not an outright overruling, of Chevron when the Supreme Court decides Loper.[16]
This outcome could be particularly problematic for the environment. A gridlocked Congress that is unable to pass laws has left agencies like the EPA to craft environmental regulations and protections.[17] Stripping the agencies of their deference could lead to legal and administrative chaos.[18] An important part of Chevron is its recognition that agencies are better equipped to understand and handle issues that come with the area they are regulating; they are subject-area experts.[19] For example, the EPA scientists are better equipped to determine how much a state may need to curb their air pollution than a judge would be.[20] Throwing complex environmental decisions to a huge federal court system with judges of diverse ideologies, especially when judicial appointments have become increasingly partisan leading to an even wider range of viewpoints, could result in a hodgepodge of judges who are not environmental experts or scientists each deciding “which reasonable interpretation is their preferred reasonable interpretation.[21] Further, courts are already flooded with cases, and stripping agencies of their power could lead to overwhelmed judges having more cases added to their busy dockets.
The Supreme Court may land a huge blow to environmental protections by stripping agencies of their Chevron deference, but it will ultimately depend on the Supreme Court decision in Loper.
[1] Chevron v. Nat. Res. Defense Council, Inc., 467 U.S. 837 (1984).
[2] Loper Bright Enterprises v. Raimondo, SCOTUSblog, https://www.scotusblog.com/case-files/cases/loper-bright-enterprises-v-raimondo/ (last visited Oct. 28, 2023).
[3] Id.
[4] Chevron, 467 U.S. 837.
[5] Id.
[6] Id.
[7] Id.
[8] Josh Gerstein and Alex Guillen, Supreme Court Move Could Spell Doom for Power of Federal Regulators, Politico (May 1, 2023, 1:26 PM) https://www.politico.com/news/2023/05/01/supreme-court-chevron-doctrine-climate-change-00094670.
[9] Brian Palmer, Thanks, Chevron?, NRDC (Aug. 5, 2015) https://www.nrdc.org/stories/thanks-chevron.
[10] See, e.g., Michigan v. Envtl. Prot. Agency, 576 U.S. 743, 761 (2015) (Thomas, J., concurring); Guiterrez-Brizuela v. Lynch, 834 F.3d 1142, 1153 (10th Cir. 2016) (Gorsuch, J., concurring).
[11] Michigan v. Envtl. Prot. Agency, 576 U.S. 743, 761 (2015) (Thomas, J., concurring).
[12] Guiterrez-Brizuela v. Lynch, 834 F.3d 1142, 1153 (10th Cir. 2016) (Gorsuch, J., concurring).
[13] Evan Nelson, et al., Chevron Deference Running on Fumes?, Holland & Knight (May 19, 2023) https://www.hklaw.com/en/insights/publications/2023/05/chevron-deference-running-on-fumes.
[14] Amy Howe, Supreme Court Will Consider Major Case on Power of Federal Regulatory Agencies SCOTUSblog (May 1, 2023, 11:54 am) https://www.scotusblog.com/2023/05/supreme-court-will-consider-major-case-on-power-of-federal-regulatory-agencies/.
[15] Supra, note 2.
[16] Ufonobong Umanah, Expect Narrowing of Chevron Doctrine, High Court Watchers Say, Bloomberg Law (Oct. 10, 2023, 5:00 AM) https://news.bloomberglaw.com/us-law-week/expect-narrowing-of-chevron-doctrine-high-court-watchers-say.
[17] Gerstein, supra note 5.
[18] Jeff Turrentine, What Happens If the Supreme Court Ends “Chevron Deference”?, NRDC (June 21, 2023) https://www.nrdc.org/stories/what-happens-if-supreme-court-ends-chevron-deference.
[19] Id.
[20] Id.
[21] Id.