The future of the administrative state hangs in the balance. Supreme Court justices will soon decide in a pair of cases whether to reverse a decades-old precedent known as the Chevron deference that would curb federal agencies’ power to regulate everything from Wall Street to the stove in your kitchen. This Washington Examiner series will look at how a departure from this precedent could rip up the regulation nation. Part 1 focused on the underlying court case. Part 2 explored the possible economic repercussions. Part 3 examines what the fallout would be for energy and environmental policy.
The Supreme Court is poised to soon determine whether to overturn or significantly pare back a decades-old court doctrine giving administrative agencies broad discretion to write rules, possibly exposing the Biden administration‘s climate and clean energy regulations to new legal challenges.
At issue is the legal test established by the Supreme Court in its 1984 Chevron U.S.A., Inc v. National Resources Defense Council ruling, which granted administrative agencies authority to interpret and issue rules pertaining to laws passed by Congress, so long as the statutes could be considered ambiguous and the rulemakings considered to be a “reasonable interpretation” of the law.
Supporters of Chevron say that its intent was to give more regulatory power to agencies led by subject-area experts, rather than to unelected federal judges, who serve lifetime terms on the bench.
Legal experts have noted that Chevron is the single most consequential and frequently cited case in administrative law. If this year’s oral arguments were any indication, the Supreme Court’s conservative 6-3 majority is likely to curtail or overturn the 40-year precedent, leaving in the balance the future of major Biden regulations on emissions reductions, climate, and clean energy incentives.
In January, the Supreme Court heard oral arguments for two cases challenging Chevron: Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce, which were brought on behalf of fishermen groups in Rhode Island and New Jersey.
Plaintiffs in both cases challenged the authority of the National Maritime Fisheries Service to require commercial fishing vessels to house and pay the costs for onboard federal observers to monitor their activities and ensure compliance with certain conservation and fishery management standards set by the Department of Commerce.
The court cases in question highlight what commercial fishermen in the Northeast say is a threat to their industry: more frequent government regulations and higher compliance costs.
Commercial fishermen in New England, for example, pay upwards of $700 per day to hire outside observers they are now required to have onboard — a rate that is “actually even more money than most crewmen typically make” in the same period, Dustin Delano, a Maine-based lobster and menhaden fisherman, told the Washington Examiner in an interview.
Delano, who also serves as chief operating officer of the Fisherman Stewardship Association, said he has seen friends forced to shut down their commercial fishing operations after decades due to the financial and regulatory burdens imposed in recent years.
“It’s probably no secret that our fishermen have constantly had to enter lots of regulation — [including actions] we’ve put forth on our own to protect our fisheries,” Delano told the Washington Examiner. “But in more recent years, it would appear that a lot of the government regulation has really been kind of stepped up a notch.”
Overturning Chevron could also undermine some of the Biden administration’s biggest victories. Certain provisions of the Inflation Reduction Act, for example, could be vulnerable to court challenge — including guidance and rulemakings set by the Treasury Department to codify who is eligible for certain tax credits and other clean energy funding.
Many other rulemakings authored by the Environmental Protection Agency and the Interior Department could also be at risk. This includes the Bureau of Land Management’s public lands rule, which is meant to add conservation to the approved list of lease activities under its so-called “multiple use framework” for public lands — effectively putting it on the same footing as fossil fuel production or mining.
The BLM rule is one many legal experts view as vulnerable, depending on how the court rules on Chevron, Tina Van Bockern, a partner at the law firm Holland and Hart, told the Washington Examiner.
“If Chevron deference is gone, how is a court going to look at the challenges to BLM’s claim that it can now lease public lands for what many view as non-use?” Van Bockern said.
“If a court is looking at the Federal Land Policy and Management Act anew, without any deference to BLM’s interpretation of what FLPMA says, then I think it’s going to be hard for BLM to defend its reading in making lands off-limits or authorizing non-use,” she added.
Other Department of Energy and EPA actions could also be vulnerable, including the DOE’s decision to temporarily halt construction of new liquefied natural gas export terminals, and various EPA rules set under the Clean Air Act.
“We could see a narrowing of the way that agencies have been interpreting the language based on the development of science and knowledge over the course of the last 40, 50 years,” said Devon Ombres, the senior director for Courts and Legal Policy at the Center for American Progress, a liberal think tank in Washington.
“If you look at air pollution when the Clean Air Act was written, the science wasn’t what it is now … and if we’re looking at a much narrower definition of air pollution, courts could very easily say, ‘Well, it doesn’t mean methane emissions, because methane emissions were not a known air pollution at the time,'” Ombres told the Washington Examiner.
But critics of the Chevron deference argue it has been a tool used to undermine judicial authority and allow agencies, rather than the court system, to interpret the law.
Others are concerned with the inherent risks of consolidating so much power within administrative agencies, which change hands under each president and, therefore, threaten to create more regulatory uncertainty.
Adam White, a senior fellow at the American Enterprise Institute, wrote in a January article published in the Yale Journal on Regulation that “There may be room for some judicial deference to agencies as they work out the precise meaning of a vague law, at least when the law is new, but eventually the courts must settle the question.”
While the timeline for the high court’s decision on Chevron is unclear, that it will be at least scaled back significantly seems all but a foregone conclusion if justices’ previous remarks serve as any indication.
Justices Clarence Thomas, Brett Kavanaugh, and Neil Gorsuch have all criticized Chevron for its delegation of power to federal agencies to pursue policy goals and “determine the bounds of the law,” as Thomas wrote.
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Gorsuch issued a scathing review of the Chevron deference in a 2022 dissent, saying the doctrine “place a finger on the scales of justice in favor of the most powerful of litigants, the federal government, and against everyone else.”
“Rather than say what the law is, we tell those who come before us to go ask a bureaucrat,” he added.