US Supreme Court Sets Stage for Industry Lobbyists to Write Health, Safety and Environmental Rules • Kentucky Lantern

​​The United States Supreme Court just ended something called the Chevron subservience, Loper Bright Enterprises v. Raimondo, Case No. 22-451. Should You Be Worried? Unfortunately, yes, the Supreme Court just threw our protections under the bus. Here’s How.

In 1984, in the Chevron case, the Supreme Court held that when an agency’s implementation of a federal statute is reasonable, the agency is entitled to deference. This is true even if other interpretations could be made.

This happens a lot—in environmental protection, food and drug safety, occupational health and safety, consumer product safety, you name it. The statute directs the agency to “protect human health, safety, and the environment” or something like that. The agency has to implement that standard. It does that by issuing a regulation.

That means jumping through hoops. The regulation must be published as a draft. The agency must explain the science, technology and costs it considered and solicit public comments, then respond to those comments, all before issuing a final regulation. If the regulation is challenged, a court will review it to see if it meets federal standards. Even if the court were to write a different regulation, the agency’s decision would be treated with deference, according to Chevron. When in doubt, the agency prevails.

You might think that’s unfair, but consider this: Career public servants are tasked with reviewing the science, technology, and costs of a proposed regulation, drawing on their academic credentials and professional experience. They spend months, sometimes years, making their recommendations. If Chevron’s deference disappears, what happens next? What if the reviewing court simply substitutes its own deference for the agency’s?

A reviewing court may reject: Excuse me, Congress, I’m coming back to you to clarify the standards. All of them. For everything. Good luck to us while Congress figures this out. Protection delayed is protection denied.

Or the review court could appoint a special judge to advise the court on issues of science, technology, and cost. The special judge will likely come from regulated industries whose day job is to lobby on behalf of those industries—including fighting new regulations. Will the special judge support the agency or the regulated industries? If you didn’t trust government officials to protect you, try trusting lobbyists.

Oh, you say, but our Kentucky agencies will take matters into their own hands. No. Kentucky statutes often have a “no more stringent than” requirement. If federal regulations are in limbo in Congress, they’re in limbo here. And if lobbyists wrote the federal regulations, guess what the state regulations say. Even in the absence of federal regulations, the General Assembly routinely vetoes agency regulations without writing any legislative standards to replace them.

The Supreme Court tries to justify its decision as a simple distinction—courts interpret the law, agencies apply the facts. I wish it were that simple.