How Will the Supreme Court’s Chevron Decision Affect Michigan? – Planet Detroit

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Last Friday, the U.S. Supreme Court struck down a principle of federal law that had guided U.S. regulation for four decades, transferring power from the executive branch to Congress and the courts.

By a 6-3 majority, the court overturned the precedent set in 1984 in Chevron v. Natural Resources Council, which held that courts should defer to agencies’ interpretations of ambiguous regulations if the interpretation is reasonable.

“Chevron’s premise is flawed because agencies have no special authority to resolve statutory ambiguities,” wrote Chief Justice John Roberts. “The courts do.”

Experts say the move gives courts broad authority to decide on issues that are often technical, which could give companies and their paid experts an advantage in challenging the regulations. And several cases challenging federal regulators’ authority to limit greenhouse gas emissions from vehicles and power plants could benefit from the Chevron ruling.

“Today’s majority decision will send a powerful shockwave through the legal system, undermining many long-standing constructions of the statutes and threatening the interests of many litigants who have relied on them for years,” Justice Elena Kagan wrote in her dissenting opinion, citing an earlier opinion.

In Michigan, the decision could change air and water permits, under which the U.S. Environmental Protection Agency delegates authority to enforce federal regulations to state regulators. For example, the state Department of Environment, Great Lakes and Energy issues water quality permits for polluting facilities, which could be affected if contaminants like PFAS are no longer federally regulated.

However, Michigan recently repealed its “no more stringent than federal” law, giving lawmakers the authority to create regulations that provide more protection than federal laws and giving the state a potential avenue to address regulatory gaps created by the Supreme Court decision.

Chevron ruling triggers ‘seismic shift’ in environmental regulation

Nick Schroeck, associate dean for experiential education at the University of Detroit Mercy School of Law, told Planet Detroit the ruling represents a “sharp turn” in environmental legislation that fails to recognize the rapid evolution of sources of pollution and technologies to combat them.

“It’s very difficult for the legislative process to identify every eventuality that could arise when you’re doing things like regulating air pollution,” Schroeck told Planet Detroit. “It’s unrealistic to expect that this whole regulatory system can work without a well-functioning administrative state that has the authority to make the right decisions and apply its expertise.”

While Roberts said the ruling is intended to be forward-looking, Schroeck said it could lead to many of the issues being challenged if litigants argue that the rules were derived from misinterpreted statutes.

The Supreme Court may have just made those challenges more likely with its follow-up decision Monday in Corner Post v. Board of Governors of the Federal Reserve, which ruled that the six-year deadline for filing a lawsuit challenging a federal regulation begins when it first affects a company, not when the rule is issued.

David Coursen, a former lawyer for the Environmental Protection Agency, said the Chevron decision places duties on courts that they are fundamentally inappropriate for. He said courts should decide whether agencies have the authority to make regulations, but they should not question those determinations.

“I don’t think the courts are well-equipped to make these kinds of technical determinations, and neither are their officials,” he said.

Coursen said the decision effectively undermines the authority of agency experts who are not paid to make specific decisions, giving more power to experts hired by companies who can argue with the rules.

PFAS regulations and climate action may be at risk

There are several ongoing legal cases that could be affected by the Chevron decision, many of them filed on behalf of Republican-led states that accuse agencies of overstepping their authority in issuing regulations intended to limit greenhouse gas emissions. Some of those cases involve agencies that have used authority granted to them by the Clean Air Act, originally passed in 1970 and amended in 1990, to limit emissions from vehicles and power plants.

Action to address toxic PFAS contamination could be another obvious target for litigation, according to Schroeck. The Environmental Protection Agency has regulated so-called “forever chemicals” in surface waters using its authority under the Clean Water Act, which does not specifically mention PFAS.

However, Schroeck said any law containing some level of ambiguity could result in claims of misinterpretation by a federal agency.

“There’s ambiguity in every case,” he said. “But generally speaking, the agencies have tried to do their jobs, which is to implement the laws that Congress has passed. And sometimes that requires making decisions and expert opinions.”

While some federal judges may decide from a more environmental perspective, most of the work of promoting environmental and climate goals will now be in the hands of lawmakers. Getting new legislation through an often bitterly divided Congress will likely be a challenge. Foundational environmental laws like the Clean Air Act and the Clean Water Act were enacted in the 1960s and 1970s, when such measures enjoyed bipartisan support.

Still, Michigan may be better able to address loopholes in federal regulations than some states. The state has a renewable energy standard to reduce planet-warming emissions from power plants and administers its own wetlands program. Schroeck said that unless state regulations conflict with federal ones, federal courts are unlikely to interfere.

But at the federal level, Schroeck said, the Chevron decision has taken away a lot of power from the state and replacing it will take a huge effort.

“Congress needs to do some really serious legislative work in the next five to 10 years,” he said.