The Supreme Court doesn’t have to end Chevron. Here are 3 of its options.

By Pamela King | 06/05/2024 01:44 PM EDT

While the doctrine is unlikely to remain intact, it might not disappear when the justices decide its fate this month.

A statue and columns at the U.S. Supreme Court

The Supreme Court will soon rule on the Chevron doctrine. Francis Chung/E&E News

Sometime this month, the nation’s highest bench will seal the fate of a legal theory that for 40 years has helped federal agencies defend their rules in court.

In a pair of cases expected to be decided by the end of June, conservative lawyers have asked the Supreme Court to overrule the Chevron deference, one of the most frequently cited doctrines in legal battles over regulations.

During oral argument in January, some of the court’s more moderate members appeared unlikely to vote to overturn the doctrine, which gives legal leeway to agencies like EPA to reasonably interpret their regulatory power when federal laws are unclear.


That doesn’t mean Chevron will stay intact. Legal observers expect that any changes implemented by the conservative-dominated Supreme Court would significantly weaken the doctrine, effectively erasing a tool that has helped expert regulators win in court.

“One thing is certain,” said Lisa Heinzerling, a law professor at Georgetown University, during a recent event hosted by Resources for the Future. “We cannot expect — and agencies working on rules now cannot expect — courts to defer to them in the future in the way that they deferred under Chevron.”

Here are three ways the justices could scale back Chevron without upending the doctrine:

1. They could say silence is not uncertainty

In their initial petitions to the Supreme Court in the Chevron cases, conservative challengers asked the justices to either overrule the doctrine or “at least clarify” that silence in a federal law does not create ambiguity that requires courts to defer to agencies.

The two cases currently before the court contend that a lower bench wrongly applied Chevron to find that NOAA Fisheries could require herring vessels to pay up to 20 percent of their revenue for onboard monitoring to prevent overfishing. Conservative challengers say the statute at the center of the lawsuits — the Magnuson–Stevens Fishery Conservation and Management Act — requires industry to foot the bill only in very narrow circumstances, and caps those costs.

Beyond those provisions, they said, the law is silent on the matter.

Justice Clarence Thomas asked Solicitor General Elizabeth Prelogar during arguments in January how the court should distinguish delegations of authority from silence in a statute.

She responded that the Supreme Court case that established Chevron — a 1984 legal battle over EPA air regulations that environmentalists lost — specifically mentioned statutory silence as one of the prerequisites for deciding whether to defer to an agency.

While legal observers say a narrow ruling limiting Chevron’s use in cases of statutory silence would be less disruptive than a total ending of the doctrine, they would expect such a decision to launch a new set of legal questions.

Critics of federal rules will then look to “characterize everything as silent,” said David Doniger, senior attorney and strategist at the Natural Resources Defense Council.

2. They could set a higher threshold for Chevron analysis

The justices could limit Chevron’s application by finding other ways to create a tougher hurdle for judges to clear before they use the doctrine in the first place.

Chevron analysis involves two steps. First, a court must determine that a federal law is unclear. Second, the court must decide that an agency has reasonably interpreted its power in light of that statutory uncertainty.

In a 2017 analysis of the doctrine published by the Michigan Law Review, legal scholars found that only 30 percent of Chevron cases are decided at step one, with federal agencies winning about 40 percent of the time. Of the 70 percent of cases that advance to step two, agencies prevail nearly every time.

Chief Justice John Roberts, who as one of the conservative majority’s more moderate members is frequently a deciding vote in close cases, has previously written that courts are too quick to let agencies decide what authority Congress has given them.

In 2022, Roberts authored the landmark climate ruling West Virginia v. EPA, which used the “major questions” doctrine to say that agencies must have specific permission from Congress to regulate economically and politically significant issues. The theory has been referred to as a Chevron “step zero,” or an additional question that judges must answer before deferring to an agency.

Roberts has written in previous Chevron cases that courts are too quick to yield to agencies without first deciding that deference is warranted. The Supreme Court doesn’t have to overrule the doctrine in order to make that principle clear, said Jonathan Adler, a law professor at Case Western Reserve University.

“In other words, a doctrine that focuses on delegation as the source of deference — as opposed to mere ambiguity — would likely do the trick,” he wrote in a recent blog post, “but this requires clarifying how many understand Chevron.”

3. They could send a message to lower courts

No matter the specifics of their ruling on Chevron, the justices’ decision on the doctrine this month could have a chilling effect on its use in lower courts.

While it has been nearly a decade since the Supreme Court last applied Chevron, federal appellate and trial court judges still use the doctrine frequently, as they did in the herring fishery cases that are now before the justices.

During arguments, even some conservative members of the court seemed hesitant to break from 40 years of precedent to strike down a doctrine they have stopped using.

Prelogar urged the justices to use the Chevron cases as a “reminder” to lower courts about the limits of the doctrine. She pointed to her office’s analysis of the Supreme Court’s 2019 decision in Kisor v. Wilkie, which set limits on but avoided overruling Auer deference, a doctrine that relates to agencies’ reading of their own ambiguous regulations.

“After Kisor, lower courts granted Auer deference far less frequently,” she said, “so I think it can matter and that lower courts can get that kind of message if you’re worried about it.”

The Supreme Court’s next opinion release day is Thursday. The justices are expected to issue decisions through the end of June.

Reporter Robin Bravender contributed.