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.
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 ???