This article was originally published in the Here & There newsletter by Kyle Frost. Here & There is now Mountain Gazette's weekly Thursday newsletter.
What's the deal with "Chevron"
A few weeks ago, you may have seen headlines about the repeal of “Chevron deference” by the Supreme Court alongside social media posts by outdoor activists lamenting the decision because of the potential ramifications that it will have on environmental policy. Since then, things have been pretty quiet on the topic, which makes this a good time to really dig into what happened here and the impacts going forward (and what’s happened already).
The history behind Chevron
Chevron deference was born out of a case regarding the ability of the Environmental Protection Agency (EPA) to establish regulation that allowed states to treat all pollution-emitting devices within the same industrial grouping as though they were within a single "bubble." This was a change in the new Reagan administration EPA from methodologies employed by the previous Carter administration.
The original suit was actually brought by the National Resources Defence Council (NRDC) against the EPA; the NRDC felt that the new administration guidance was in conflict with the stated goals of the Clean Air Act because it allowed states more flexibility in avoiding new permits. Ruth Bader Ginsburg (then a judge in the DC circuit court) ruled in favor of the NRDC, positing the bubble "is mandatory for Clean Air Act programs designed merely to maintain existing air quality," but was inappropriate "in programs enacted to improve the quality of the ambient air." (The Story of Chevron).
Chevron appealed this decision to the Supreme Court, which ruled in 1984. The majority opinion in favor of the EPA was written by Justice John Paul Stevens, and established a two-step framework for courts to use in reviewing an agency's interpretation of a statute:
Step One: If the intent of Congress is clear, that is the end of the matter; the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.
Step Two: If the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.
This decision gave broad deference to government agencies regarding the specifics behind more generic statutes and policies and established the concept of Chevron deference.
The most recent case
Loper Bright Enterprises v. Raimondo, the most recent case before the court, involved a small commercial fishing operation and challenged the requirement that they were responsible for the cost of mandatory environmental monitors (a mandate not explicitly stated in the relevant legislation, and therefore pursuant to Chevron deference).
The Supreme Court ruled 6-3 that courts — not agencies — are to determine all questions of law, including the single best interpretation of ambiguous terms, even if those terms are scientific and technical. This overturned previous precedent regarding Chevron deference.
Why Chevron made sense
Chevron deference made sense because there is a significant amount of expertise that lives at the agency level and not necessarily with the courts. It doesn't make sense for the courts to spend time litigating the specifics of statues they do not fully understand. For example, a PhD in wildlife biology is going to have a significantly better understanding for what the exact approach for management and population levels are for ungulate populations – even if the statute granting them that authority simply says “manage ungulate populations”. Are experts still subject to political persuasions and partisan decisions? Absolutely. But in general, they are almost certainly more informed than the courts on issues of science.
Moving forward, judges will be expected to make rulings on the specifics of complicated statues previously elucidated by experts with decades of experience; I expect to see more and more situations in which the courts make decisions that confuse terms, misrepresent research, or plainly don’t make scientific sense. Just one day before the Chevron decision, the court published an opinion “repeatedly confusing nitrogen oxides (the fossil-fuel-generated pollutants governed by EPA’s Good Neighbor Plan) and nitrous oxide (laughing gas).” (Sierra Club) Justice Kagan used another environmental example to illustrate the dissenting opinion:
“Under the Endangered Species Act, the Fish and Wildlife Service must designate endangered “vertebrate fish or wildlife” species, including “distinct population segment[s]” of those species. 16 U. S. C. §1532(16); see §1533. What makes one population segment “distinct” from another? Must the Service treat the Washington State population of western gray squirrels as “distinct” because it is geographically separated from other western gray squirrels? Or can the Service take into account that the genetic makeup of the Washington population does not differ markedly from the rest?”
She goes on to say that “A court could, if forced to, muddle through that issue and announce a result. But wouldn’t the Fish and Wildlife Service, with all its specialized expertise, do a better job of the task—of saying what, in the context of species protection, the open-ended term “distinct” means?”
Are there any positives?
One way to look at the removal of Chevron deference is actually a weakening of the executive branch. Because much of the policy and statute minutia in government agencies is set by political appointees (from the executive branch), these decisions are by their nature very partisan. This results in flip-flop politics when administrations and agency staffing changes every 4 to 8 years. Specific statutes end up being removed or revised to suit the needs of a Democratic or Republican administration and we continue to whiplash back and forth. So, in some sense there’s a valid reason to make statues more codified and more resistant to massive swings when the opposing party takes office.
What does it all mean?
In practice, even with Chevron overturned, agencies will continue to have some discretion in how to interpret ambiguity in statutes. But, we can fully expect a slew of challenges to existing and new environmental regulations that no longer have the protection of Chevron.
The early signs are that the removal of deference is going to immediately challenge the effectiveness of a slew of outdoor and environmental regulations. The Center for International Environmental Law notes that “The decision is being used to stymie ESG investment regulation, reopen federal waters after an emergency closure to protect North Atlantic right whales, contest solar power facility certifications as a qualifying source of alternative energy, challenge requirements for water heaters to meet efficiency standards, and defend against the use of a tire manufacturing chemical whose runoff caused a “taking” of protected fish species.”
The ruling may also affect new regulations being introduced to address PFAs in our water by categorizing them as hazardous substances. “This unfortunate SCOTUS decision shifts the responsibility for addressing these questions from EPA professionals to ill-equipped courts and will hamstring the EPA’s ability to protect water quality.”
Things aren’t hopeless. The arc of progress continues to swing in favor of renewable energy, and many recent EPA rules, including many climate regulations, have intentionally avoided citing Chevron, and are therefore somewhat insulated from this decision. “Agencies years ago stopped relying on Chevron deference in rulemaking. The court hasn’t upheld an EPA rule on the basis of Chevron since 2014, and it hasn’t relied on the doctrine in any decision since 2016.” (E&E News).
And while decisions may slow down at the federal level, and a patchwork of regulations is not ideal, there’s already precedent for state-level regulations being able to influence decisions more broadly. The “California Effect” refers to California’s ability to pass stringent regulations (often environmental) that cause corporations to modify practices, even on a national or international level (Wikipedia). Regardless of your political affiliation, or whether you agree with particular environmental regulations or not, it makes local and state elections more important than ever when it comes to policies that affect our environment and the outdoors.
