A new slate of environmental rollbacks from the Trump administration are poised to serve as early tests of a recent Supreme Court ruling that limited federal agencies’ power to defend their rules against legal attack.
Over the last few weeks, EPA and the Interior Department have floated rescissions of protections for federal waters, vulnerable species and climate change.
Each proposal presents a dramatic change in position from earlier regulations, and in the absence of Chevron deference — which gave agencies the benefit of the doubt when statutes are unclear — the Trump administration will have to make the case that its approach is the best interpretation of federal law.
“It raises an interesting psychological question as to how Chevron operated,” said Damien Schiff, senior attorney for the Pacific Legal Foundation, which supported elimination of Chevron deference. “When judges deferred under Chevron, how often were they deferring because they thought that was the best interpretation anyway, or how often were they not impressed with the agency’s interpretation but had to defer?”
In some cases, the Trump administration is taking the position that it has no choice but to propose a rollback in light of Loper Bright v. Raimondo — the 2024 Supreme Court ruling that eliminated the Chevron doctrine. The move is in keeping with a White House directive issued in April that called for immediate reversal of rules that do not align with Loper Bright and other recent rulings from the conservative-dominated Supreme Court.
“In effectuating repeals of facially unlawful regulations, agency heads shall finalize rules without notice and comment, where doing so is consistent with the ‘good cause’ exception in the Administrative Procedure Act,” the White House said in its memo.
Environmental lawyers say Loper Bright does not excuse agencies from following the APA, which sets rules for public comment and reasoned decisionmaking on federal regulations.
The APA has been a major stumbling block for President Donald Trump’s deregulatory agenda. A Trump-appointed federal judge in New York, for example, issued an order last month blocking rescission of special protections for young immigrants, finding the administration fell short of its APA obligations.
And the Supreme Court during Trump’s first term struck down on APA grounds an attempt to remove safeguards for people who came to the United States illegally as children.
“I’ve been reading it constantly this year,” Max Sarinsky, legal director at the New York University School of Law’s Institute for Policy Integrity, said of the 2020 Supreme Court ruling. “It anticipates what the Trump administration is doing.”
Changing the way rules are written
The text of the Trump administration’s new rollbacks clearly indicates that federal agencies are preparing to do legal battle over their interpretations of federal environmental laws.
Where once EPA and Interior may have said Chevron allows them to regulate as they see fit, agencies in the wake of Loper Bright are making the case at the top of their draft rules that their approach is the best path under Supreme Court precedent and federal statute.
“The fact that they have to lead with the statute argument shows you the clear impact of Loper Bright,” said Schiff of the Pacific Legal Foundation.
He pointed to Interior’s new proposal to remove blanket protections that automatically apply for plants and animals listed as threatened. The agency said that the long-standing approach does not align with the “single, best meaning” of the Endangered Species Act and instead proposed to create tailored safeguards that could open the door to exceptions to the law’s prohibition against harming listed species.
“Under the Chevron regime, Interior could have toggled to another interpretation, and that would have been upheld,” Schiff said.
In their revised definition of “waters of the United States,” or WOTUS, EPA and the Army Corps of Engineers have made the case that their view on which wetlands are eligible for automatic Clean Water Act protection is the best interpretation of the Supreme Court’s 2023 opinion in Sackett v. EPA, which removed safeguards for most of the nation’s waters.
Without Chevron, legal experts say, the government gets no deference on its reading.
However, Schiff, who argued for the winning side in Sackett, said the Trump administration may get more leeway on its WOTUS definition compared to other rules, because it offers an interpretation of the Clean Water Act’s scope rather than imposing new legal prohibitions.
But not even Chevron could have saved a regulation that ignores the text of a statute, said Jason Schwartz, regulatory policy director at NYU’s Institute for Policy Integrity.
He pointed to the new tailpipe emissions proposal advanced earlier this month by the National Highway Traffic Safety Administration, which he said ignores congressional intent for the government to consider environmental benefits of energy conservation.
“This is a huge legal vulnerability for them,” Schwartz said. “There are words Congress wrote into the statute. They can’t just be ignored. After Loper Bright, the agency doesn’t have as much discretion to read these words however they want.”
Leaning hard on Loper Bright
In most of the Trump administration’s environmental rollbacks, the death of Chevron deference is one of many arguments agencies are using to justify their rescissions.
In at least one proposal, however, it was the only argument.
A notice of proposed rulemaking published earlier this year by Interior’s Fish and Wildlife Service and NOAA Fisheries sought to alter the definition of “harm” to wildlife in an effort to dramatically curtail the reach of the Endangered Species Act.
The proposal would upend a 1995 Supreme Court ruling in Babbitt v. Sweet Home, which rejected a challenge from the timber industry and private landowners against protections for the red-cockaded woodpecker and northern spotted owl. The court relied on Chevron in reaching its decision.
“Under Loper Bright, ‘the question that matters’ is whether ‘the statute authorizes the challenged agency action.’ In other words, does the agency’s regulation match the single, best meaning of the statute?” FWS and NOAA Fisheries wrote in the 11-page proposal. “We have concluded that our existing regulations, which still contain the definition of ‘harm’ contested in Sweet Home, do not match the single, best meaning of the statute.”
The proposal, which has yet to be finalized, would tee up a massive fight over the Trump administration’s interpretation of Loper Bright, which foresaw attempts to undermine prior court decisions that leaned on Chevron.
“[W]e do not call into question prior cases that relied on the Chevron framework,” Chief Justice John Roberts wrote for the majority in Loper Bright. “The holdings of those cases that specific agency actions are lawful … are still subject to statutory stare decisis despite our change in interpretive methodology.”
Environmental lawyers are readying for the fight.
“This is totally wrong under Loper Bright,” Sarinsky of NYU’s Institute for Policy Integrity said of the FWS and NOAA Fisheries proposal. “Loper Bright says very expressly that prior decisions that rested on Chevron deference remain good law.”
