I’ve been out hobnobbing with the Coastal Elite at a Breakthrough conference and visiting family, so I’m way behind…
Chevron case
I’m puzzled by the news coverage of this case. It’s always interesting to try to narrow the gap between what news sources tell us and our own lived experience. Here’s an example from CBS:
Proponents of the doctrine have argued that agencies have the expertise and experience to address gaps in the laws enacted by Congress, especially when it comes to administering programs that serve broad swaths of the population. Overturning Chevron would make it more difficult for the federal government to implement the laws passed by Congress, its backers warned.
Kagan, in dissent, accused the conservative majority of usurping the power the legislative branch gave to agencies to make policy decisions and putting judges in the center of the administrative process on all manner of subjects.
“What actions can be taken to address climate change or other environmental challenges? What will the nation’s health-care system look like in the coming decades? Or the financial or transportation systems? What rules are going to constrain the development of A.I.?” she wrote. “In every sphere of current or future federal regulation, expect courts from now on to play a commanding role.”
The Biden administration urged the Supreme Court to leave Chevron deference intact, calling it a “bedrock principle of administrative law.” Justice Department lawyers argued that the framework allows experts at federal agencies to interpret statutes, and have said they, not judges, are better suited to respond to ambiguities in a law.
Hmm. judges in the “center of administrative processes on all manner of subjects.” You mean like whether BLM used the appropriate air quality model in its EIS? Or whether the scientific findings of effectiveness of certain forests treatments are controversial? It’s hard to imagine them being more involved than they already are. But maybe our federal lands litigation is unique. Here’s NRDC:
Sometimes Congress is purposefully inexplicit in order to give the subject-area experts space to decide how best to implement a regulation. For example, an agency made up of occupational safety specialists should already be well equipped to decide how to handle the technical, nuts-and-bolts aspects of imposing workplace protections—rules about equipment usage, say, or the need for periodic employee rest breaks—without the meddling of judges. And given the complexity of weather patterns, EPA scientists are better equipped than judges at determining how much a state should curb its air pollution in order to protect people living in other states downwind.
It’s hard not to read this and add “and Forest Service experts are better than federal judges in determining how to protect people from wildfires.” I guess, according to NRDC, judges only “meddle” when they get involved with NRDC-approved agencies like EPA.
The only thing I could think of was that the Chevron case related specifically to “interpreting statutes” and maybe that’s not exactly what judges in our kinds of cases are doing. When the article says:
limiting the framework would threaten the ability of federal agencies to craft regulations on issues like the environment, nuclear energy or health care.
It seems like judges already get involved when groups litigate regulations (which they do regularly). When folks don’t like proposed regulations, they often say that they are going against the statute at issue.
Hopefully one of legal folks out there can explain this in layperson’s language and give us some ideas of what changes we might expect. Personally, I think it would be a good use of time for legal and agency folks to review any proposed statutes for Possible Problematic Ambiguities with an eye to correcting any problems before they start.
Overturning Chevron won’t allow plaintiffs to bring entirely new kinds of cases (legal term: causes of action) that they aren’t bringing already. What it does is lowers the burden of proof required for a court to find that that an agency’s interpretation of an authorizing statute is unreasonable. Whereas before that was very difficult to prove because courts were supposed to almost always defer to the agency’s interpretation, now it’s easier to do.
One area I see this making a difference almost immediately is with the recently filed challenges to the BLM’s conservation rule. The State of Utah and other plaintiffs will have a much easier case to make that just because FLPMA is general and vague in giving the BLM authority to manage land for “multiple use and sustained yield”, doesn’t mean the BLM can interpret it to confer the authority to count non-use as use and issue “conservation leases” to third parties to allow them to prevent other uses of land, when there is no such authority mentioned in the statute.
Thanks, Patrick! This is helpful. Could you explain what the test used to be “agency’s interpretation is unreasonable” vs. what it is now?
I think the conservation rule is probably a good example.
Why exactly will it be easier? As in “it used to be that plaintiffs needed to prove x now they only need to prove y.”
I agree Patrick, and hope it puts an end to runaway Rule-making by bureaucrats who are never elected to anything! With this Court, I see a continuing emphasis on “sensible” Law, pulling back on under more of the Constitutional umbrella. And, with a Trump Presidency, conservatives can remain in majority for a long time. Will overturning Chevron (if you can call it that) start an avalanche of new filings? Doubt it; but, it will be a win for the keeping the makings of Law with Congress, I hope…..
Jim, I saw somewhere the argument that bureaucrats are accountable to the Prez who is elected and the judges are not elected nor accountable, so it’s bad. Which is kind of funny from the environmental law perspective which is all about judges making decisions. When I argue “not a good place for technical disagreements”, I’m wrong, but when they argue it.. they’re right! So confusing.
I have a quick question. Would this ruling have an impact on local zoning laws or local counties that are trying to dictate land use private land
This was a ruling on the Administrative Procedure Act, which applies only to federal agencies.
we need to open state lands get rid of all the permits to use them get rid of the angels landing, lottery BS with all the rules and ways to tax the public to use what’s rightfully theirs
Readers with a taste for masochism can read the original 1984 Chevron decision here:
https://casetext.com/case/chevron-inc-v-natural-resources-defense-council-inc-american-iron-and-steel-institute-v-natural-resources-defense-council-inc-ruckelshaus-v-natural-resources-defense-council-inc
As can be seen in part II of the opinion, the so-called Chevron doctrine emerged from Justice Stevens’ effort to make sense of decades worth of prior Supreme Court opinions concerning judicial review of agency actions. The Supreme Court today overruled Chevron, but did not touch (as far as I know) any of those earlier cases – they are all still, at least in theory, good law. So federal judges from now on face the task of reinterpreting this jenga tower of old cases without letting the result look too obviously like Chevron. It seems like federal judicial resources could probably be put to better use.
As for federal agencies in the near term, I agree that regulations are the agency actions most exposed to new litigation risks. For sub-regulatory actions (e.g. timber sales, special use permits) I suspect the effect of today’s decision will be limited. Biden’s regulations are at greater risk, but so too will be Trump’s deregulatory actions, should he return to office. The safest prediction might be yet more crowded federal dockets for the next few years.
Thanks, Rich! “Chevron gave federal agencies room to interpret ambiguous or unclear laws and instructed the courts to defer to these interpretations as long as they were reasonable understandings of the law.” from an HCN article. https://www.hcn.org/articles/supreme-court-curtails-agencies-ability-to-enforce-regulations/
So now the courts don’t have to defer to agencies, regardless of whether they are reasonable interpretations or not? Because I could argue the reasonableness of many things on both sides, so it seems like that was ultimately up to judges already.
A bittersweet outcome for the fed agencies is that their interpretation will be “respected” by the federal courts. Is that kind of like the end of a date when the statement “I will respect you in the morning” is issued?
I concur, Rich…if anyone thinks a federal judge has room on their docket to take on more of these cases, they have not been paying attention.
I have never posted a comment on this platform, but read with interest everyone’s take on current events. Steve Wilent might recall me from a decade past during NAFSR commo from an email diatribe I sent his direction with the complete congressional FOIA, sent USPS, covering the 2000 roadless area conservation FEIS.
Patrick McKay’s observation is likely most critical at this time with UT-WY challenge of BLM’s conservation and land health rule alongside Interior WO preferred alternative (outside Cooperating Agency) of BLM’s Rock Springs FO changes for that RMP to meet mandated EO directions.
In the meantime, and what some folks might be ignoring in these questions of authority is the new way federal land agencies are to perform their annual stewardship land audits by de-recognizing federal lands in a non-monetary fashion through categorization due to take final effect FY 2026.
Sharon, you are a great moderator and many of us “outside the box” types, and/or from the “outside looking in” crew certainly have come to appreciate.
Thank you.
The LOPER opinion can be found here for anyone interested:
https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf
Randy, thank you for the kind words! What exactly do you mean by:
“In the meantime, and what some folks might be ignoring in these questions of authority is the new way federal land agencies are to perform their annual stewardship land audits by de-recognizing federal lands in a non-monetary fashion through categorization due to take final effect FY 2026.”
Please give us more context and cites. I don’t even know what a “stewardship land audit” is ???
Good morning Sharon,
I will get back with all of the cites that you can research and read the progression of the auditing method. The process has been developing since the late 1990’s with NRDC, Sierra Club, and numerous other outfits commenting throughout as far as my keeping track of how federal owned lands audits go. One must remember that bank loans to private entities are sometime qualified by uses of federal loans. This audit process has been up for public comment, mostly in GAO notices. This year is the first year it is to be utilized in OMB guidelines.
I was going to paste the schedule here but it didn’t work so bear with me. These quotes are from the guideline discussions and 2022-23 proposed changes prior to going to OMB:
“…in cases where land has multiple uses, none of which is predominant, a description of the multiple uses should be presented. The appropriate level of categorization of stewardship land use should be meaningful and determined by the preparer based on the entity’s mission, types of stewardship land use, and how it manages the assets.”
So, BLM final land health rule is construed by some to be administratively worded to make ACEC determinations go to the top of the list to be “predominate” in federal land planning for multiple-uses…
“…Stewardship land and permanent land rights should be assigned to one of three sub-categories based on predominant use and reported in estimated acres of land.” … therefore “…An asset’s predominant use should be consistent with the entity’s authorizing legislation but may not always be consistent with the original intent or reason why the asset was initially acquired.” …
“The financial statement balance sheet should reference a note that discloses information required…about Stewardship land and permanent land rights but no asset dollar amount should be shown. Existing disclosures should continue during the transition period through fiscal year 2025 and cease in …2026.”… “…duplication of information, such as statements explaining how stewardship land relates to the entity’s mission or its SL policies and procedures, should be avoided and…remain as basic during the transitional period.”.
The last two quotes appear to directly coincide with Loper/Reliance opinion where the Court wrote the following (next paragraph) and should make a researcher wonder why the last quote above directed agencies as to what to avoid in their system of audit reporting when it boils down to, “entity’s mission or its SL policies and procedures”.
From the Loper/Reliance opinion:
“As Chief Justice Marshall declared in the foundational decision of Marbury v. Madison, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” 1 Cranch 137, 177. In the decades following Marbury, when the meaning of a statute was at issue, the judicial role was to “interpret the act of Congress, in order to ascertain the rights of the parties.” Decatur v. Paulding, 14 Pet. 497, 515.”
“The Court recognized from the outset, though, that exercising independent judgment often included according due respect to Executive Branch interpretations of federal statutes. Such respect was thought especially warranted when an Executive Branch interpretation was issued roughly contemporaneously with enactment of the statute and remained consistent over time. The Court also gave “the most respectful consideration” to Executive Branch interpretations simply because “[t]he officers concerned [were] usually able men, and masters of the subject,” who may well have drafted the laws at issue. United States v. Moore, 95 U. S. 760, 763. “Respect,” though, was just that. The views of the Executive Branch could inform the judgment of the Judiciary, but did not supersede it. “[I]n cases where [a court’s] own judgment . . . differ[ed] from that of other high functionaries,” the court was “not at liberty to surrender, or to waive it.” United States v. Dickson, 15 Pet. 141, 162.”
This final audit guideline effort had a panel of 7 or 9 members and of those participants, 2 agreed with direction the audits were taking overall, but dissented in having federal owned lands agencies from de-recognizing stewardship lands. As well, this could add to the multiple-uses administration conundrum brought forth by BLMs final rule. And, we shouldn’t forget the SEC’s failed attempt at creating National Asset Companies. The audits appear to require federal agencies to categorize federal owned lands under a “predominate use” that adds to the question of administrative deference to law with “respect” for federal agency rulemaking versus an agency’s interpretation of law such as by example Taylor Grazing Act or administration of herd management areas such as defined(?) for wild horse or burros.
While I am getting you the websites links, below is a quote from one of the panel members as concerns categorizing and de-recognizing public domain lands as those lands were FLPMA-NFMA defined after 1975:
“…that this Statement does not include an option to classify land acreage as having multiple uses and that this Statement would require reporting and auditing that has not been demonstrated to be cost-beneficial.”… “Over two thirds of all of the Government’s land is required by law to be managed under principles of multiple use. Requiring agencies to specify a single predominant use for multi-use land would put large land management agencies in the untenable position of having to identify and report a predominant use for land that is inconsistent with the use of the land as specified by statute.”
Regards,
Sharon,
Following might be considered a primer; just going back to 2005 or so.
I brought this “predominate use” used in a “sub-categorical” approach to auditing up to certain members in Congress last year due primarily to USFS proposed rule: Carbon Capture and Storage Exemption footnotes at https://www.govinfo.gov/content/pkg/FR-2023-11-03/pdf/2023-24341.pdf
Below are just a few of the federal auditing weblinks that I hope will work for you:
http://files.fasab.gov/pdffiles/handbook_sffas_29.pdf
“Specifically, this standard requires additional reporting disclosures about entity stewardship
policies and an explanation of how heritage assets and stewardship land relate to the mission of
the entity”
http://files.fasab.gov/pdffiles/handbook_tr_9.pdf
“This technical release is intended to assist federal entities in reporting information on heritage
assets (HA) and stewardship land (SL) in accordance with new federal accounting standards.
Federal entities are required to report descriptive, non-financial information on HA/SL as basic
information in their financial reports, in accordance with Statement of Federal Financial
Accounting Standards (SFFAS) 29, Heritage Assets and Stewardship Land.”
(This next URL is a type of ‘redline’ document similar to what CEQ-NEPA Phase 2 published during that comment period for reviewers to compare old against new)
https://files.fasab.gov/pdffiles/handbook_sffas_59.pdf
The new verbiage portion and changes created in SFFAS 59 will be in the initial pages of the document. Stewardship and Heritage lands begins bottom of page 13. As well, you can go to page 50 for the board approval notes and then on page 53, Appendix B begins the illustrations of sub-categorizing lands for predominate use with Agency X, Bureau A or B, Department A or B and Agency 1 or 2 illustration and explanations followed by what is and is not allowed during the transition years 2022-25 to effective date 2026.
Be aware of the ending paragraph on page 53…”Certain agencies indicated that substantial acres of federally-owned land are or can be subject to multiple, concurrent uses for different purposes, on both perpetual and periodic bases. As such, in these cases, complying with this Statement’s requirement to assign a single “predominant use” could be cost-prohibitive, precipitate undue preparation burden, and result in reporting that is not reasonably reflective of the land’s actual use.”
https://fasab.gov/accounting-standards/document-by-chapter/
This link will take you to the Federal Accounting Standards Advisory Board handbook by chapter and statement of federal financial accounting concepts so you don’t have to search individually all of the footnotes to links that are no longer available.
https://www.gao.gov/products/gao-24-106986
GAO’s FY2024-25 audit procedures for gov’t land and report at this link https://www.gao.gov/assets/d24106986.pdf
https://crsreports.congress.gov/product/pdf/R/R42346
CRS federal land ownership report for your reference
And, just for good measure – “values” – https://www.fs.usda.gov/ecosystemservices/
More than you wanted can be found at
https://www.whitehouse.gov/wp-content/uploads/2023/05/A-136-for-FY-2023.pdf
This is OMB/White House Circular 136-a
Based on some of your previous posts, might be of interest to you as far as deferred maintenance…
https://www.gao.gov/assets/870/865801.pdf
https://www.gao.gov/assets/d24107234.pdf
Please keep up the good works.
Cheers,
Randy, would you please consider submitting a post that tell the story of the federal accounting standards? I think it’s kind of buried here in the comments.
Sharon,
Along with your last thought, this subject has been fairly well buried in the annals of federal owned lands audit guideline changes by GAO and Board members prior to OMB adoption; in my instance, stewardship and heritage lands, not PP&E. I do not know how to tie this in a nice bow for a post on your site at this time other than for folks to research the cites I gave. When it becomes final for FY2026 and federal owned lands and “uses” are de-recognized in their respective sub-categories, and the outcomes of recent federal owned lands and regulation litigation become apparent, I would be able to place it in a nutshell and would present the issue to you at that time if I am still with the quick. That should answer your question. Please read on if you care to – it might seem a jumbled mess:
More so, the issue has been made all the more difficult to ferret out all of the reasoning (other than cost-cutting) because of current federal regulations now under litigation, proposed and final federal tax methods (brought forth with P.L. 117-169, the Inflation Reduction Act (IRA)) and litigation brought about recently pertaining to P.L. 117-58, in the original 2000+ page, and over 500 amendments covering legislation back to the late 1860’s and known as a “once in a lifetime” opportunity, introduced in the U.S. House as, “Investing in a New Vision for the Environment and Surface Transportation in America Act” (INVEST act), where after the U.S. Senate renamed it Infrastructure Investment and Jobs Act (IIJA) for political reason while parring it down to 1025 pages.
I brought this subject up in the wrong venue as you suggest. I am not educated but for FS example started out in younger years with RARE I, RARE II, 1984 WY-UT Wilderness Act, the reasoning behind why Chief of USFS brought about an 18-month road moratorium during efforts to overhaul all FS planning and new definitions to avoid the necessity of a dreaded RARE III “study” for the roadless area rule, based, I think, on a brilliant (my personal opinion) NRDC attorney’s legal analyses prepared for the Clinton Admin, Podesta, et al, and to bringing FS use of 404F permit across millions of acres, rather than project level, to COE attention (2001?) on the B-T, Shoshone, and Med-Bow. Just so you are aware, for about 43 years I was a small business entrepreneur with less than 10 employees who was always caught in the middle and on the receiving end of federal regulations.
When BLM came up with the land health and conservation rule defining mitigation…easement, claims that FLPMA mandated BLM to conclude conservation/preservation (ACEC in principle) as a multiple-use merely by using a categorical exclusion, alongside NEPA phase 2, IRS new rules affecting the taxing of conservation easements and a plethora of other rules from EPA based on IIJA, I came back out of the closet because some of the policy seemed to directly advance “de-recognizing” federal owned lands away from the multiple-uses agencies while giving credence to BLM’s new rule…and then Loper (Chevron) came back around.
For a bit more than an decade I requested clarification of the direction I was reading in the GAO documents about federal owned lands de-recognition, sub-categorizing, and non-monetizing from the perspective of pre-1976 ‘rights’, permits, allotments, to congressional staff and rec’d no concrete answers. I wondered under which sub-category these would be classed. For instance, if a grazing allotment was at “rest” after a fire or drought, would it be “restoration/preservation/conservation/economic/recreation” or what and given the vast acreages, how would an agency auditor know the difference or perhaps the consequence(s) to the public depending on the sub-category applied.
Federal lands impact real property value, and larger bank loans to operators on and across federal owned lands generally require long-term assurance of that. There is litigation brought forth due federal agency mandates from the IIJA, the IRA, and various EOs. For instance, although Farm Bureau and National Cattleman Beef Assoc, Public Lands Council, and others lobbied for either the IIJA or other legislation that mandates federal agencies/bureaus into revised policy and new rulemaking, these organizations are now suing EPA and other federal bureaus or agency/department and/or petitioning congress to save them from aspects of legislation they lobbied for but did not read the entire bill they lobbied for.
Time will tell what impact “de-recognizing” and auditing in a non-monetary fashion federal owned lands will have, and if I get a firm handle from bankers and CPAs in the private sector relative to GAO’s guidelines, I’ll include that as well and I hope in a manner that is more informative and not so discombobulated or perhaps disruptive to readers.
It seems to me a shame though that bureaucratic bean-counters, that likely wouldn’t know checkerboard lands from a chessboard, appear to be putting federal owned lands administrative agents between a rock and hard place.
Sorry for the ramble,
Here’s the 114-page opinion(s), which I have not read. https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf
The Syllabus is only 8 pages; what I get from that is that this Court rejected a uniform deferential standard to use to review compliance with the APA. However, courts may still decide that an agency has discretion to regulate if that is (in a court’s view) a “reasoned” interpretation of the law applied to a certain set of facts. “An agency’s interpretation of a statute “cannot bind a court,” but may be especially informative “to the extent it rests on factual premises within [the agency’s] expertise.””
Of course I disagree with your premise that the courts are already too “involved” in public lands decisions (and we’re not talking about the number of lawsuits here). They are not allowed to substitute their judgment for the agencies on factual questions, and were (under Chevron) not allowed to do so for their interpretation of ambiguous laws. Now they can do the latter, although it’s hard for me to see how this is actually going to work in practice. Without new lines being drawn (by the courts if not Congress), it seems like almost any attempt by an agency to interpret a law will be worth a lawsuit to see if the courts think something different than the agency did (so more court involvement from a numbers standpoint). And more forum shopping to get a judge that would do that. Or maybe the main idea is that agencies will be intimidated into not trying to regulate.
I ran across one commentator who brought up land management agencies in an interesting way:
“On the other hand, there are a number of federal agencies, like the U.S. Forest Service and the Bureau of Land Management, which manage most of the federal public lands, that have been largely captured by the entities they regulate—timber companies, mining interests, etc. These agencies often seek Chevron deference for pro-development and pro-extraction rules and decisions. Many of our community partners in those circumstances might well be happy to see Chevron gone.”
https://law.stanford.edu/2024/06/28/stanfords-deborah-sivas-on-scotus-loper-decision-overturning-chevrons-40-years-of-precedent-and-its-impact-on-environmental-law/
But of course, now that might depend on the judge. The Supreme Court apparently welcomes more business: “we see no reason to presume that Congress prefers uniformity for uniformity’s sake over the correct interpretation of the laws it enacts.” And the Court would like us to believe this: “Courts interpret statutes, no matter the context, based on the traditional tools of statutory construction, not individual policy preferences.”
A Washington Post article discussed the difference between interpreting the law and drawing factual conclusions, a distinction that the Supreme Court does make: “The EPA assesses the health risks posed by specific chemicals by interpreting scientific studies, not by interpreting ambiguous statutes, said Madeleine Boyer, a principal at the firm Beveridge & Diamond who represents clients in the chemical industry. Chevron “isn’t intended to address the deference that should be given to an agency’s interpretation of its own facts and science,” Boyer said.” (And what courts do in these cases is determine whether the reasoning was arbitrary (based on the facts in the record), and not whether the decision is correct.)
A number of things:
1) For readers just joining the broadcast, “The syllabus is the only 8 pages” is a laugh line. We lawyers probably should get out more often.
2) Chevron was decided in 1984, an era in which conservatives wanted to impose “judicial restraint” on supposedly liberal judges. Chevron is one element of that project. In 1984, Justice Stevens was still a mainstream conservative Republican (a fact apparently unknown to the Loper industry amici).
3) The Loper case in essence replaced the clear/ambiguous standard of Chevron with the law/fact distinction. On issues of fact, the agency wins. On issues of law, the judges decide.
This distinction is trivial when the case involves the neighbor’s dog digging up your flowerbed. But it isn’t at all obvious in most federal land management questions worthy of discussion.
4) I don’t know if it’s a good or bad thing that the federal judiciary is largely devoid of federal land management experience. But it appears to be an unassailable fact. Maybe we should set up a monolith somewhere? At least it would get press.
If I got out more often I would understand what you mean by “laugh line?” I did want to reword the following sentence though: “this Court rejected a uniform deferential standard to use to review an agency’s compliance with a law because that would violate the APA.”
Boyer’s comment is kind of funny because I actually don’t observe “isn’t intended to address the deference that should be given to an agency’s interpretation of its own facts and science,” that specific deference occurring in practice.
The Stanford prof has hit on something valuable, though. In the eyes of Big Environment, there are good agencies like EPA who regulate things, and bad agencies like FS and BLM who do things or permit others to do things. When they try to unleash good agencies, it’s difficult not to unleash bad agencies, and vice versa. This dichotomy also occurred with the use of data. Big E considers EPA the main event, and the doing agencies are an afterthought.
I don’t necessarily buy your “Big E” abstraction but I agree with the distinction you’re making. There are primarily regulatory agencies, and laws which authorize them to regulate the public, usually businesses, and there area primarily action agencies (add Army Corps, FERC, Fed Highways) with laws that authorize them to take actions, subject to public participation. The land management agencies (and maybe others) also issue regulations that regulate themselves, and how they deal with the public, such as the Planning Rule. Maybe that distinction would make a difference in how deference is applied by courts.
If you read the decision, though, as with what kind of data agencies use in making decisions, all agencies have to be dealt with the same way. If you defer to one, you must defer to the other. If a certain data quality is needed for one, then the same is needed for the other. Of course judges are biased, and make decisions based on their internal proclivities. They’re not going to write in a decision “FS if you were the EPA I’d respect your decision but since you are you… not so much. I think you’re a pack of ravenous jackals lusting after the blood of Mother Gaia.” 😉
Well, let’s keep an eye on how this plays out in public lands cases. The courts really shouldn’t matter to factual determinations other than ruling that an agency was arbitrary in the way it considered the facts. This is more about whether the law lets an agency do something at all. North Dakota likes it: https://kfgo.com/2024/07/06/supreme-court-ruling-bolsters-north-dakota-cases-ag-wrigley-says/. There may be some benefit from the political influence on agency decisions being on a judicial appointment cycle rather than an election cycle?
This ESA case provides and interesting look at how a now member of the Supreme Court used Chevron glady – and the dissent shows how regulatory decisions will be attack.
https://www.cadc.uscourts.gov/internet/opinions.nsf/8742C5E9288E37A585257A5D004E6E7C/$file/11-5128-1389720.pdf
This judgment by a decidedly conservative court will drive a tremendous number of new lawsuits on all manner of fed regs, incl land mgmt agencies. The thing that concerns me now will be venue shopping, especially looking for courts packed with ultra-conservative ideologues who know little, nor care little about the env. If you thought env cases seeking the 9th Cir was wrong, get ready for retribution.
Jim, here’s my view.. 1) as I understand it, it’s not retroactive. 2) Going forward People Who Want to Litigate will have, as part of their kitchen sinkery of claims. In our world I don’t think it will cause new lawsuits.
Here’s some additional thoughts from the Center for Biological Diversity on how the Loper opinion might affect public land management.
https://www.msn.com/en-us/news/other/wyoming-pols-celebrate-chevron-s-fall-it-might-not-be-the-win-they-think/ar-BB1peKhJ?ocid=BingNewsVerp&apiversion=v2&noservercache=1&domshim=1&renderwebcomponents=1&wcseo=1&batchservertelemetry=1&noservertelemetry=1
It’s possible, he said, that the court’s decision will ultimately have the effect of strengthening some environmental laws, though it could be “many years” before the true consequences are made clear.
“Some laws — like the Endangered Species Act — are actually very clear and very strong and have a very obvious meaning,” Hartl said. “Myself … and other organizations would actually argue that, if anything, the Fish and Wildlife Service has interpreted the [Endangered Species Act] weaker than what the law actually requires.”
As courts, instead of federal agencies, take more of a role interpreting environmental statutes, the strengths of the laws themselves may become more important, he said. To illustrate the point, Hartl compared the National Forest Management Act with the Federal Land Policy and Management Act. The former, which is considered a stronger law, governs U.S. Forest Service lands while the latter, perceived as weaker, has bearing on Bureau of Land Management property.
“So the loss of Chevron may make it easier to have protections for Forest Service lands than BLM lands,” Hartl said.
(The article generally suggests that that we won’t see a lot change in the outcomes of court challenges to agency regulations, but that a lot of plaintiffs will try.)