Tagged In: democracy, Environmental Policy, Law Center, Public Lands
Chris Tavenor, General Counsel, July 10, 2024
This post was drafted with the support of OEC Legal Intern Megan Mettler
On June 28, 2024, the U.S. Supreme Court short-circuited the power of U.S. public agencies to create policies designed to protect the environment and human health. Through Loper Bright Enterprises v. Raimondo, the Court overturned a 40-year-old case called Chevron v. NRDC, which had established foundational regulatory principles for how civil servants create regulations to protect the public from air pollution, water pollution, and beyond. By overturning what is known as “Chevron deference,” the Supreme Court sided with polluters instead of the people of the United States.
Over the course of the past few decades, the Chevron deference doctrine has delegated broad powers to our nation’s federal public agencies. The U.S. Supreme Court consolidated two cases before it—Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce. Both cases were brought by commercial fishing groups challenging the actions of the National Marine Fisheries Service (NMFS). The recent decision by the U.S. Supreme Court eliminates Chevron deference, a foundational legal principle designed to ensure our civil servants in public agencies are able to use their expertise to protect the environment and human health—among many other goals.
Named after the landmark 1984 case Chevron v. National Resource Defense Council, the Chevron deference outlines a clear test for judges to determine whether a public agency is acting how Congress intended it to. The test provides two questions:
1. Is the law in question ambiguous?
2. Is the agency’s interpretation reasonable?
Previously, answering yes to both of these questions required the court to defer to the agency’s interpretation of the law. The idea here is that experts at public agencies are better suited to make policy choices in their designated industry than federal judges; thus, a fair, impartial judge should recognize that expertise and defer to the civil servant’s judgment.
Loper Bright and Relentless Inc. presented the Court an opportunity to uphold Chevron deference, clarify its application, or overturn it entirely. Unfortunately, the U.S. Supreme Court sided with the polluting industries and other corporate interests seeking to diminish the power of public agencies.
Both cases challenged the National Marine Fisheries Service’s interpretation of a specific law: the Magnuson-Stevens Act. The Magnuson-Stevens Act is the binding legislative law regarding the management of marine fisheries in U.S. waters. The lower courts applied the Chevron deference framework in both of the cases, found that the agency’s interpretation of the law was reasonable, and upheld the interpretation, rejecting the claims of the fishing companies.
After the commercial fishing groups appealed their cases to the U.S. Supreme Court, the justices heard oral arguments for both cases together because both companies made the same arguments to invalidate Chevron deference.
During oral argument, some justices expressed concerns about how overruling Chevron would impact the courts. These concerns included how the courts would be encroaching on the policy role of public agencies, who employ expert civil servants in their respective field and may be in the best position to interpret the statutes governing their work. For example, experts at the U.S. EPA, who are tasked with protecting the air and water of the American people, are best situated to interpret environmental laws like the Clean Air Act and the Clean Water Act.
The Court’s decision impacts the ability of our public agencies to achieve their missions. Environmental policy will feel this impact strongly, as will many other issue areas. Let’s consider a few examples.
Overturning Chevron deference hinders the power of agencies to consider conservation and climate impacts of oil and gas projects and leases. Fossil fuel companies will likely target the expert work of civil servants at agencies like the Department of Energy, Bureau of Land Management, and other agencies who have started considering climate change in decisions.
The Bureau of Land Management in particular has unveiled its proposed Conservation and Landscape Health rule, which designates “conservation” as a use of public lands. With the overturning of Chevron, fossil fuel companies might target this rule, leaving our public lands vulnerable to additional drilling. Ohio’s only national forest is already a target for oil and gas development.
Other public agencies have started (correctly) accounting for climate change as a key impact when conducting environmental assessments. However, the National Environmental Policy Act doesn’t specifically name climate change as a concern they should address. Under the ruling in Loper, some courts might decide agencies can’t interpret the National Environmental Policy Act to allow for review of climate impacts or other similar issues.
These policies, designed to benefit the environment and the people of the United States, are now at threat because judges deferred to the demands of corporations. But it also gives unnecessary power to judges when they should instead be fair, impartial arbiters of justice. As Justice Jackson said during oral argument, ridding our legal system of Chevron deference could put judges in the position of “uber legislators.” Courts will become policymakers, making the ultimate decision on how a law should be interpreted even if there are several reasonable interpretations among experts.
The U.S. Supreme Court’s decision in Loper and Relentless Inc., in overturning Chevron deference, perfectly exemplifies why we need reform at the U.S. Supreme Court. Amidst controversial conflict of interest scandals, we continue to see the Court make decisions siding with polluters over the needs of the people. Without Chevron deference, civil servants, experts in regulatory implementation, will have to defend every decision as the “correct” way to read a law, in fear that a court decides it knows better.
With the Court’s decision, Ohioans should pay attention. And when they talk with their elected officials, when they talk with their friends and family about the impact of the Courts in our lives, they should consider how the U.S. Supreme Court just stripped away the ability for civil servants, who have studied to become experts in their field, to make important decisions designed to protect people and the environment. The Court has risked key environmental protections for us all.
