Supreme Court may overturn major environmental precedent this week

By Pamela King | 06/25/2024 01:29 PM EDT

Here are five things to know about the Chevron doctrine and the consequences of its potential demise.

The U.S Supreme Court is seen on June 14.

The Supreme Court. Mariam Zuhaib/AP

As the Supreme Court approaches the final opinion release dates of its term, environmental and administrative lawyers are waiting with bated breath to learn the fate of a legal doctrine that federal agencies have used since the Reagan administration to defend themselves in court.

In two of the term’s most closely watched cases — Loper Bright v. Raimondo and Relentless v. Commerce — the justices have been asked to overturn the 40-year-old Chevron doctrine, which says judges should generally defer to agencies’ reasonable interpretations of their powers when Congress has been unclear.

The justices could decide the cases by the end of this week.


While Chevron is not inherently ideological, it has become a target for some members of the high court’s conservative supermajority, who have called for the doctrine’s demise.

The court has options to weaken Chevron short of overturning it, but Loper Bright and Relentless are part of a broader set of recent cases in which the justices have sought to diminish the power of expert agencies.

Legal observers expect that whatever conclusion the justices reach in the cases, the Chevron doctrine is unlikely to emerge intact.

Here are five things to know about the court’s forthcoming Chevron ruling:

1. Ending Chevron would be a blow to policymakers

While the Supreme Court originally conceived of Chevron to uphold a Reagan-era EPA air pollution rule, the doctrine reaches far beyond environmental regulations.

Chevron is also a tool that agencies like the Occupational Safety and Health Administration can use to curb workplace injuries, the Department of Transportation can leverage to back vehicle safety requirements and the Food and Drug Administration can call on in its approvals of life-saving medicines.

The American Cancer Society and other groups have told the Supreme Court that overturning Chevron would cause “tremendous disruption … to the stability of this country’s health care system generally, and to the health and wellbeing of the patients and consumers we serve.”

Proponents of Chevron note that several industries — the energy, tobacco and agriculture sectors, to name a few — are pressuring the justices to overturn the doctrine, in the hopes that it will weaken the federal government’s hold over them.

The U.S. Chamber of Commerce, which filed an amicus brief last year on behalf of business groups, said the courts’ modern application of Chevron is a “distortion” of the doctrine and subjects industry to the whims of whomever occupies the White House.

“Businesses cannot effectively plan for the future when agencies are free to unilaterally change the basic rules at any time,” the Chamber wrote.

2. Enviros are asking SCOTUS to uphold their loss

The lawyer who argued for the losing side in the original Chevron case has been asking the Supreme Court to keep his defeat in the lawbooks.

In February 1984, David Doniger of the Natural Resources Defense Council appeared before the justices to make the case that EPA under the Reagan administration was unlawfully treating manufacturing plants within the same complex as a single entity for air permitting.

The Supreme Court disagreed, finding that EPA’s approach was a fair reading of ambiguity in the Clean Air Act.

Nearly 40 years later, Doniger filed an amicus brief saying that while he thought the court reached the wrong conclusion on the Reagan-era EPA rule, its reasoning was sound.

“We are the party that lost Chevron,” Doniger and another NRDC attorney said in the brief in Loper Bright.

They later added: “We nonetheless recognize the broader values that Chevron’s judicial review framework serves, and what could be lost without it.”

3. Conservatives used to like Chevron

Chevron was a unanimous, 6-0 decision led by Justice John Paul Stevens, a Republican-appointed judge who was frequently a swing vote in cases during his tenure on the Supreme Court.

Even some of the court’s most conservative members were initially drawn to the doctrine as a method to check judicial activism against Republican administrations.

After joining the court in 1986, Justice Antonin Scalia sang Chevron’s praises.

“In the long run, Chevron will endure and be given its full scope,” Scalia said in a 1989 speech at Duke University School of Law, because “it more accurately reflects the reality of government, and thus more adequately serves its needs.”

Toward the end of his time on the Supreme Court, however, Scalia’s views on Chevron shifted, and he refused to use the doctrine to defer to the Obama administration in consequential environmental cases.

Legal observers note that while conservatives in recent years have turned away from Chevron — so much so that the Supreme Court hasn’t used the doctrine in nearly a decade — it could be a useful tool for future Republican administrations seeking to roll back federal regulations.

4. EPA has recently backed away from Chevron

Knowing that Chevron has recently fallen out of favor with the Supreme Court, EPA and other federal agencies have steered away from citing the doctrine in their rules or using it to defend themselves in court.

When the Obama administration issued its 2015 Clean Power Plan, EPA cited Chevron as the basis for interpreting the Clean Air Act to allow the agency to require the utility sector to shift from coal-fired power to renewables.

After the Clean Power Plan was invalidated by the Supreme Court in the 2022 case West Virginia v. EPA — even though the regulation had never officially gone into effect — the Biden administration released a narrower version of the rule earlier this year.

Chevron was nowhere to be found in the text of the Biden rule.

“We haven’t seen administrative decisions [that heavily rely on Chevron] for a long time,” Doniger said during a recent event at NRDC headquarters. “Instead they say, ‘This is what we think is the correct meaning of the statute.’”

“And of course, that doesn’t bind the courts,” he said. “The courts can say, ‘Nope, you got it wrong.’”

5. But the doctrine still helps agencies win in court

Despite the Supreme Court and the federal government’s slow walk away from Chevron, the doctrine isn’t dead.

In Loper Bright and Relentless, two separate federal appeals courts applied Chevron to uphold a NOAA Fisheries rule that requires herring fishing vessels to pay the salaries of onboard monitors — to the tune of 20 percent of the operators’ revenue — to prevent overcatch.

The case illustrates that the doctrine is still alive and well in the lower courts, and legal research shows that when judges apply Chevron in cases, agencies tend to win.

Conservative lawyers have argued in Loper Bright and Relentless that the Supreme Court must set the record straight for the lower benches.

“Today, the Court seemingly has such intense misgivings about Chevron that it no longer cites it even when it would seem to govern,” they wrote in a brief filed last year.

“Because Chevron remains on the books, however,” they continued, “administrative agencies continue to churn out regulations premised on aggressive, newfound readings of statutes, and lower courts continue to feel obligated to afford agencies ‘Chevron deference’ unless and until this Court explicitly says otherwise.”

The Supreme Court’s next scheduled opinion release date is Wednesday. The justices typically issue all of their opinions by the end of June, but there’s a chance they could release some decisions early next week.