Chevron Decision and NW Forest Plan

From The Oregonian today….

How a Supreme Court decision could reignite Oregon’s biggest environmental battles


Since the Pacific Northwest’s “timber wars” of the 1990s, the federal Northwest Forest Plan has managed conservation and logging interests in regional forests.

The plan was formulated by a team of scientists from several fields, tailoring their rules to mandates from Congress. The Forest Service announced earlier this year that it was looking to update those rules to meet the growing challenges of wildfire and climate change.

But Oregon environmental advocates say those rules, among many others issued by federal regulatory agencies, could now come under threat. The Supreme Court late last month overturned what’s known as the Chevron decision, a longstanding precedent that lower federal courts should defer to agencies — staffed by experts — on “reasonable” rule changes to enforce legislation.

The ruling effectively means federal regulators will have a harder time defending those rule changes in court. It could also make existing rules easier to challenge.

Daniel Rohlf, a professor of wildlife law at Lewis & Clark Law School, said the reversal of Chevron could be compounded by another lesser-noticed ruling last month — Corner Post Inc. v. Board of Governors of the Federal Reserve System.

He said that previously, there was a six-year statute of limitations for challenging federal regulation, beginning when the regulation was implemented. But now, the six-year clock starts when the regulation begins to affect the entity mounting the challenge.

Rohlf said this means old rules could be opened up for litigation. And he expects future challenges could throw a wrench in an already overworked legal system.

“It’s sort of a full employment act for administrative law practitioners,” he said.

23 thoughts on “Chevron Decision and NW Forest Plan”

  1. I thought that previous decisions had been grandmothered in.. does someone understand that part of the decision better than I do?

    • Dear Sharon,

      The recent Supreme Court ‘Corner Post’ decision allows old regulations to be challenged. Even though that decision involved just a Truck Stop in North Dakota objecting to debit card fees enacted long ago, the decision now allows challenges of old regulations:

      The court reasoned that new businesses that are harmed by old regulations should be able to sue for relief. Hence, Federal agencies can no longer cast their regulations in stone after so many years and never again face challenges to them.

      This has profound implications for the administrative state, probably for the better.

      Gordon J. Fulks, PhD (Physics)
      Corbett, Oregon USA

  2. For many decades, the Chevron doctrine allowed Federal agencies to call the shots on scientific issues where they have expertise. It also made it easy for the courts to adjudicate disputes where the courts had little expertise. This worked well when the agencies not only had considerable expertise but also stayed within the bounds of competent (evidenced-based) science.

    Unfortunately, the unquestioned authority of the agencies led to massive abuses, where political considerations overruled the science. That is where we find ourselves today. Too many Federal agencies (notably the Environmental Protection Agency) are heavily involved in pseudo-science to serve their political masters. In my opinion, the worst case is the EPA’s “Endangerment Finding on Carbon Dioxide.” It was Bad Science from the beginning but very difficult to challenge, because the courts would simply give the final word to the EPA.

    One has to hope that Federal agencies will now have to argue the real science in court, such that those of us who understand it can show where they are wrong. Of course, it will be tough for judges who have no scientific expertise to decide who is telling the truth. But the overreach of the agencies has been soo scientifically egregious in recent years that even the courts should be able to spot it.

    If Federal agencies have to defend their decisions in front of scientists not beholden to them, they may be much more careful to follow the Scientific Method, rather than the nonsense from elaborate computer games (models). We understand the basic flaws in these models that are continually covered up. Models have to be objectively verified against the real world, not taken on faith.

    Gordon J. Fulks, PhD (Physics)
    Corbett, Oregon USA

    • Thanks Gordon: I agree that the Chevron decision will be very interesting to see how it plays out with all of the politicized EPA rulings to date, but it will also be very interesting to see how the ESA may be affected in a hopefully positive manner.

      This is exactly what Eisenhower warned about in his Military-Industrial Complex (which includes ranches, farms, mines and big pharma) speech — that government-funded scientists with “big computers” would begin setting federal policy. Taxpayer-funded computer modeling by so-called climatologists, forest planners, and fish & wildlife biologists is at the heart of a great number of debilitating federal regulations and lawsuits that have done so much damage to our forests, wildlife, and economies the past 30+ years. In my opinion, based on observation and documentation.

      • This is NOT exactly what Eisenhower warned about. I’m copying my response to the last time you brought this up because I think he intended no indictment of “taxpayer funded” scientists outside of the military-industrial complex either:

        I read this article (which I don’t see cited in your article):

        While there are different possible interpretations, I think his initial statement about the corrupting influence of money also underlies his concern for the misuse of science, and there is much more money in the hydrocarbon industrial complex than in environmental non-profits.

        “The science adviser at the time, eminent chemist George Kistiakowsky, said in a later interview with Greenberg that when he questioned Eisenhower about the remarks, the president tried to distinguish between academic research, which he supported, and expanding research by industry and others with military implications that he felt was dangerous.

        “I have no doubt that Eisenhower feared the ‘military-industrial complex,’” Greenberg said, “But I’m not sure that he intended a blanket indictment of science in his reference to the ‘scientific-technological elite’ or that he feared that federal research money would contaminate academic science.”

        • Hi Jon: I’m just going on his actual words, NOT what you “think he intended”:

          “The prospect of domination of the nation’s scholars by Federal employment, project allocations, and the power of money is ever present and is gravely to be regarded.

          “Yet, in holding scientific research and discovery in respect, as we should, we must also be alert to the equal and opposite danger that public policy could itself become the captive of a scientific technological elite.”

          And: “. . . Akin to, and largely responsible for the sweeping changes in our industrial-military posture, has been the technological revolution during recent decades.

          “In this revolution, research has become central; it also becomes more formalized, complex, and costly. A steadily increasing share is conducted for, by, or at the direction of, the Federal government.

          “Today, the solitary inventor, tinkering in his shop, has been overshadowed by task forces of scientists in laboratories and testing fields. In the same fashion, the free university, historically the fountainhead of free ideas and scientific discovery, has experienced a revolution in the conduct of research. Partly because of the huge costs involved, a government contract becomes virtually a substitute for intellectual curiosity. For every old blackboard there are now hundreds of new electronic computers.”

          I think much ESA research of the past 40+ years easily meets this description. Here’s my most recent article on the topic:

          • I don’t think the fact that there are more species listed now than when the ESA was passed is because of “scientific technological elites” rather than new scientific facts about the status of species and how we are affecting them. (And yes, a little prioritization resulting from litigation pressure, which is the way our system works.) But feel free to provide some examples.

            • “Feel free” to provide you some examples of what, exactly? Feel free to post a response.

              And how about those “new scientific facts!?!” Mix science with politics and you get politics. You could start with the voting records of the “elites” Eisenhower warned about. Feel free to check it out.

              • “I think much ESA research of the past 40+ years easily meets this description.” Examples .?. (But this would be two non-biologists arguing about wildlife biology, so maybe outside the scope of this blog.)

                • Spotted owls. LSRs. Streamside buffers. Climate Change. Old-growth. Critical Habitat. All modeled on computers and directly affecting forest management. That should have been obvious.

                  My field involves the documented presence of wildlife, domesticated plants and animals, and people (maybe particularly) in the environment. Which I can match against the modelers’ outcomes and assumptions to gauge their accuracy. Mostly a bunch of anti-management and anti- fossil fuel guys making stuff up if you look at their work in these areas the past 40 years. Backed by lawyers and judges and covered by unwitting taxpayers.

                  • Models are based on empirical data, and should be ground-truthed. To simply say that anything that was based on modeling must be wrong is a weak position. Even weaker to attach their motives.

                    • Even weaker is to put words in my mouth and then refute them. Models are powerful tools when used correctly, which SHOULD include “ground-truthing” but often aren’t. They can’t predict the future, despite ongoing efforts to use them in that capacity. Not sure why you think stated motives are “weak.” When they are an obvious factor in the use or interpretation of a model, it is critical that they be acknowledged.

    • But Gordon, the decision is specifically about agencies doing things when statutes are unclear about their authority. I don’t think plans (NFMA regs) nor projects fit that. I suppose the 2012 Reg could be challenged as there are certain ideas not in the statute.. but those are still ideas and not science.

      • Dear Sharon,

        As a scientist, I am certainly no expert on legal matters. For instance, does the Supreme Court decision apply to some actions of the regulatory state but not to others?

        But from what attorneys are saying, the decision eliminates automatic deference to opinions from experts within an agency, as opposed to those of us not employed by the agency. One attorney for the BLM explained that he often cited Chevron deference to win lawsuits filed against his agency. In the future he will have to argue the merits of the case or some procedural issue like ‘standing.’

        I have to hope that this will reduce the number of bad scientific decisions, because the courts were unwilling to listen to competent scientific logic and evidence. It may also force government agencies to do a better job of the science to avoid being challenged in the courts.

        We shall see.


        Gordon J. Fulks, PhD
        Corbett, Oregon USA

        • Gordon, I think the decision only applies to 1) regulations in which the agency 2) interprets something that Congress was not clear about. And I think even then the language is changing from “defererring to the agencies” versus “respecting” the agency’s conclusions. Most of the forest management litigation we see is about projects, not regulations.

        • Ideally, this is not about science at all. It is about what a law says and was intended by Congress to mean. While that’s not always an easy distinction to make, the courts are not going to look at whether science is good or bad. In the climate change context, for example, a court might only ask whether the agency recognized the weight of evidence presented in support of and against an agency’s conclusion. They should not be getting into whether that weight is scientifically valid or justified.

          • If we are to manage our public resources “scientifically,” then it should be about actual science and not some kind of new law or legal decision. Congress has far more lawyers than scientists and their actions — even if well-intended — seem to reflect that imbalance.

    • Coincidentally, I just sat in on the Montana Supreme Court hearing in Held v. Montana, discussed previously here:
      You’ll note from that post that the court even specifically approved of modeling, and today there was again no effort by the State to deny human/Montana-caused climate change – just an effort to minimize it or put off dealing with it. The justices’ questions suggested a good day for the plaintiff kids.

  3. Republicans began hating the Earth in 1991 after the fall of the Soviet Union when the Red Scare became a new Green Scare.

    So today in the ag portion of the Project 2025 text is an outline for unlimited corporate access to national forests despite a timber glut and sawmill closures. More than even the defense lobby lavishes on politicians the US Chamber of Commerce, Bayer, American Crystal Sugar, the American Farm Bureau Federation and the Koch cabal flood Republicans in congress with cash according to research compiled by the Union of Concerned Scientists.

    Chair of the House Committee on Agriculture, Representative Glenn Thompson (Earth hater-PA), introduced HR 84676, the “Farm, Food and National Security Act of 2024,” in Congress on Tuesday. He leads all comers in campaign cash harvested from the worst offenders. But, in 2023 the Trump-packed SCOTUS reversed environmental protection for a majority of American citizens and enabled the corporatocracy to pollute at will and the two main drivers of wetlands loss in the West are drought and cattle grazing.

    The Forest Service relies on provisions in the emerging farm bill for funding including, “an extension of the Landscape Scale Restoration Program through 2029, providing competitive grants for large-scale forest restoration projects that span across jurisdictions, an authorization for Regional Foresters to appoint individuals to local Resource Advisory Committees enhancing local cooperative resource management activities and provisions in the Wood Innovation Grant Program that would prioritize proposals that include the use or retrofitting of existing sawmill facilities in counties in which the average annual unemployment rate exceeded the national average by more than 1 percent.”

    But now that the Supreme Court of the United States has given President Biden ultimate power over the US Constitution POTUS has the opportunity to order anything he wants including ignoring the Court and the imprisonment of those who would undermine the solidarity of the food chain and a commitment to forest health.

  4. The Northwest Forest Plan is arguably not a “rule” subject to Chevron deference questions. It was a forest plan amendment, and its replacement is likely to be a forest plan amendment (if not a revision). (Same goes for the mature/old growth plan amendment.) The deference question would be about whether it complies with the planning regulations, which is governed by Auer deference (a different Supreme Court precedent). I suppose this could get to the question of whether the planning regulations comply with NFMA, but I think that lawsuit would have already happened by now if it were a plausible case.

    • Or if no decisions had been made in 2012 revisions that caused “people with money to hire attorneys” to think it’s worth the effort to litigate.

      • Keep in mind they thought they had until 2018 based on the APA statute of limitations. I don’t think a facial challenge to a regulation requires a completed revised plan (earlier regs were challenged with no revised plans).

        • Yes, but the question is whether the FS following the reg irritated anyone enough to litigate. Apparently not. So the environmentalists quoted in the article were either a) misquoted by the reporter, b) believe that there’s a chance of someone pursuing litigation. Otherwise the story doesn’t make sense, as our enviro friends know that the Amendment itself is not a regulation covered by the decision.


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