Chevron’s Implications for Environmental Law and Regulation

The recent ruling by the United States Supreme Court in the case Loper Bright Enterprises v. Raimondo(1) dealt a major blow to the authority of federal agencies, ending a 40-year-old precedent commonly known as the “Chevron respect.” Drifter has now removed the court order for courts to apply “Chevron “deference” and deferring to agencies on interpretation of ambiguous language in the regulations regarding their authority. While it is unclear what impact this ruling will have on environmental enforcement cases as well as environmental regulation, federal judges will now have the authority to decide what the law means for themselves, expanding the federal court’s role in enforcement actions and policymaking.

This Chevron Doctrine of Respect

“Chevron The doctrine of “respect” refers to the Supreme Court’s ruling in the case Chevron vs. Natural Resources Defense Council,(2) which required judges to defer to federal agencies in interpreting ambiguous parts of the statutes administered by those agencies. If Congress did not directly address the issue, the court was required to uphold the agency’s interpretation of the statute, if it was reasonable.

This Chevron doctrine involves a two-step test.(3) In the first step, courts determine whether Congress has addressed the “precise question in issue.”(4) If the statute is ambiguous, courts proceed to the second step.(5) However, “if the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the clearly expressed intent of Congress.”(6) In the second step, courts defer to the agency if its interpretation of the statute is reasonable.(7) Reasonableness is not a high bar. Typically, if a court finds a statute ambiguous, the agency’s interpretation will prevail. At the time of adjudication, Chevron This doctrine represented a shift in jurisprudence from the interpretive authority of courts, which had historically determined “what the law is”(8) to the benefit of executive branch agencies.(9)

Rejection Chevron

IN Loper, owners of a New England fishing company filed suit against the National Marine Fisheries Service (“NMFS”).(10) The Magnuson-Stevens Act establishes catch limits to prevent overfishing and requires fishing boats of a certain size to carry a government-approved inspector to monitor compliance.(11) Fishing companies pay the cost of these inspectors—more than $700 per day—but Loper Bright Enterprises argued that NMFS lacked the authority to compel the companies to do so.(12) The district court disagreed, reasoning that Congress left the issue open for the agency to decide.(13) Application ChevronThe district court upheld NMFS’s interpretation that the boat owner should pay. A federal appeals court affirmed that decision.(14) The plaintiffs then appealed to the Supreme Court, which announced in May 2023 that it would hear the case.(15) On June 28, 2024, by a vote of 6-3, the justices reversed their landmark 1984 decision in the case Chevronmaintaining that Chevron deference is contrary to the Administrative Procedure Act, a federal law that sets forth procedures that federal agencies must follow and instructs courts to review the actions of those agencies.(16) In writing the majority opinion, Chief Justice John Roberts also rejected any suggestion that agencies, rather than courts, were better equipped to determine what ambiguities in federal law might mean, calling the doctrine “fundamentally flawed.”(17)

What’s next?

This Chevron The doctrine has come under considerable criticism in recent years from opponents of the doctrine, who have argued that it allows agencies to impose burdensome restrictions and rules that were not authorized by Congress and that it places a higher burden of proof on the regulated community in defending against enforcement actions. While this ruling will undoubtedly lead to increased judicial interpretation where there are ambiguous provisions, deference will continue to play a role in judicial analysis for at least two reasons. First, the Supreme Court in Drifter pointed out that previous cases in which reliance was placed on Chevron would not be overturned. Specifically, “(p)ledging Chevron cannot constitute a special justification for reversing” the decision upholding the agency’s action “because the precedent relied on, Chevron is at best merely an argument that the precedent was wrongly decided,” which is not sufficient in itself to invalidate the case.(18) Accordingly, any environmental regulation previously found to be reasonable under Chevron respect will not be automatically revoked. Second, empirical research suggests that regardless of Chevroncourts continue to be more willing to defer to agency action when environmental scientific expertise is required.(19) We can therefore continue to expect courts to pay some deference to agencies, particularly when the issues require highly complex and technical expertise.

Application

Looking ahead, those in the regulated community who wish to challenge agency regulations or enforcement actions may be much more likely to do so in court. Chevron will give judges greater latitude in reviewing agency decisions and enforcement actions interpreting environmental statutes. In doing so, the ruling opens the door to challenges to many of the rules related to environmental documents and policies issued by the Environmental Protection Agency (“EPA”) and state agencies regarding air and water quality, climate change, and other environmental and public health policies, and the EPA will likely have greater difficulty defending enforcement actions and rulemakings. The ruling also places a greater burden on Congress to be more specific in developing environmental legislation.

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(1) Entry of Loper Bright. w. RaimondoNos. 22-451 and 22-1219, 2024 U.S. LEXIS 2882 (June 28, 2024).

(2) Chevron, USA, Inc. v. Natural Resources Defense Council, Inc.467 U.S. 837 (1984).

(3) ChevronUS$467 for 843.

(4) ID.

(5) ID.

(6) ID. on pp. 842-43.

(7) ID. at number 844.

(8) Marbury v. Madison5 U.S. 137, 177 (1803).

(9) Cass R. Sunstien, Law and Administration After Chevron90 Columns. Polish: PWN Scientific Publishing House, Warsaw 2007, 2085–88 (1990); Linda Jellum, The Fall of Chevron: A Review of Chevron from Infancy to Old Age59 Admin. L. Rev. 725, 728–29 (2007).

(10) Entry of Loper Bright. w. RaimondoNos. 22-451 and 22-1219, 2024 U.S. LEXIS 2882 at *18 (June 28, 2024).

(11) See Magnuson-Stevens Fisheries Conservation and Management Act, 16 U.S.C. §§ 1801-1804 and next.

(12) Loper Bright Joins Inc. v. Raimondo Case45 F.4th 359, 373 (D.C. Cir. 2022).

(13) Loper Bright Joins Inc. v. Raimondo Case544 F. Supp. 3d 82, 127 (DDC 2021).

(14) Loper Bright Joins Inc. v. Raimondo Case45 F.4th 359 (D.C. Cir. 2022).

(15) See Jane Thomas, “Is Chevron’s Respect in Recent Days?”, Blank Rome Observing trends in energy, chemistry and the environment (September 18, 2023), energytrendswatch.com/2023/09/18/chevron-deference-in-its-last-days/#more-1211.

(16) Entry of Loper Bright. w. Raimondo2024 US LEXIS 2882 at *38.

(17) ID. at 14.

(18) Entry of Loper Bright. w. Raimondo2024 US LEXIS 2882 at *61.

(19) Jason J. Czarnezki, An Empirical Study of Court Decisions, Statutory Interpretation, and the Chevron Doctrine in Environmental Law79 U. Colo. L. Rev. 767, 771 (2008).