How SCOTUS gutting Chevron could haunt Republicans

By Pamela King | 05/16/2023 01:26 PM EDT

The Supreme Court’s move to hobble agencies like EPA could undercut the Biden administration’s climate agenda — and GOP presidents who might seek to unwind it.

The U.S. Supreme Court.

The Supreme Court. Francis Chung/E&E News

The Supreme Court’s revisit of a key legal defense for federal environmental rules may not just spell trouble for Biden’s climate ambitions — a Republican president with different objectives could face similar obstacles.

A future president keen to walk back climate regulations could find their hands tied by the absence of the Chevron doctrine, a 40-year-old legal precedent that says courts should defer to agencies’ reasonable interpretation of ambiguous statutes.

The Supreme Court has signaled that it could do away with — or at least narrow — its long-standing approach to agency deference as soon as next year.


“It’s like a judicial power grab,” said Mona Dajani, a partner at the law firm Shearman & Sterling LLP. Should the Supreme Court overrule Chevron, the outcome of litigation over federal rules would “be based on whatever the judge hearing the case decides,” she continued. “And then it becomes very difficult to even deregulate.”

During Donald Trump’s presidency, EPA and other federal agencies rolled back scores of Obama-era environmental rules. But deregulatory efforts sometimes take the form of new, narrower agency rules that can be subject to their own legal challenges — as the Trump administration encountered repeatedly over the former president’s four years in office.

Although Chevron has recently fallen out of favor with conservatives, even Republican administrations can benefit from a judicial system that is inclined to say that federal agencies, not courts, are best-equipped to interpret their congressionally delegated authority to offer a new environmental regulation — or wipe one from the books, said Pat Parenteau, professor emeritus at the Vermont Law and Graduate School.

He pointed specifically to the Trump administration’s efforts to whittle down rules governing power plant emissions and states’ roles in water permitting decisions — both of which suffered legal stumbles before they were revisited by President Joe Biden’s EPA.

“I think there’s a fair chance Chevron deference would have upheld both of those Trump rollbacks,” Parenteau said. “So why not keep it around?”

The question of whether Chevron should be overturned arises in Loper Bright Enterprises v. Raimondo, a dispute over a NOAA Fisheries rule requiring herring fishing vessels to pay for third-party monitoring of their hauls. A lower court upheld the rule on Chevron grounds, and the fishing industry petitioned the nation’s highest bench to reverse the decision.

In a May 1 order, justices said they would take up the case — but not the question of whether NOAA Fisheries has the statutory authority to create a rule requiring the fishing industry to pay the salaries of on-board monitors. They instead limited their review to the question of whether they should overrule or clarify Chevron’s reach.

The case, which is expected to be argued this fall and decided by summer 2024, follows another recent case in which the Supreme Court declined an opportunity to overturn Chevron. In the months since that ruling, Justice Neil Gorsuch, one of six members of the court’s conservative majority, rebuked his colleagues for leaving Chevron available to the lower courts.

Several groups, including the property rights-focused Pacific Legal Foundation, filed supporting briefs asking the justices to grant the Loper Bright petition, instead of adding it to the court’s long list of rejected cases.

The Pacific Legal Foundation, which is behind another major Supreme Court environmental case on the scope of the Clean Water Act, focused its arguments on the judiciary’s “vertical split” over Chevron. While the doctrine has lain dormant in the Supreme Court, lower benches — as in the Loper Bright case — still frequently use it to uphold federal rules.

Whether a diminished Chevron doctrine would handcuff deregulatory efforts is a “nuanced question,” said Will Yeatman, senior legal fellow at the Pacific Legal Foundation.

Because companies that find themselves subject to new environmental regulations must pay to follow those rules, they generally view those compliance expenses as sunk costs. The business community often bristles against deregulatory pushes that allow new companies to enter the market without the financial burden of complying with now-defunct rules, Yeatman said.

The sheer volume of regulatory efforts compared to deregulatory ones means that Chevron’s demise would more frequently affect efforts to write new environmental rules, he said.

“In practical reality,” he said, “there’s a lot less significant deregulatory efforts — no matter who the president is — than there are regulatory efforts.”

Chevron’s evolution

In Chevron’s early days, even conservative Supreme Court justices sang its praises.

The court’s 1984 decision establishing the doctrine in Chevron v. Natural Resources Defense Council — which rejected environmentalists’ challenge to a Reagan-era EPA air quality rule — was unanimous.

And the late Justice Antonin Scalia, one of the court’s staunchest proponents of limited agency powers, was a fan of the Chevron doctrine, which he viewed as a check on judicial activism.

But today, at least three of the Supreme Court’s conservative justices — Gorsuch, Clarence Thomas and Samuel Alito — have signaled that they want to kick Chevron to the curb. And it has been years since the court has used the doctrine to uphold a federal rule.

Triggers for the conservative justices’ change in attitude toward Chevron may include a shift away from the view of federal agencies as havens from political influence or the occurrence of dramatic regulatory swings between the Obama, Trump and Biden administrations, court watchers say.

The doctrine has even captured the attention of Republicans in Congress who are advancing legislation to get rid of the deference standard.

“There can be wild changes in what agencies do based on nothing more than an election, so you just don’t get any continuity,” said David Driesen, a law professor at Syracuse University.

He also highlighted the court’s recent willingness — now that it has a solid six-member conservative majority — to take dramatic action that would have once seemed unthinkable, such as its 2022 decision to overturn Roe v. Wade, upending nearly 50 years of precedent protecting the legal right to an abortion.

“One of the conservative values has always been judicial modesty,” Driesen said. “This court has abandoned that in so many ways, it’s difficult to count.”