Supreme Court ruling in Chevron case could bring change for tribes

By Mary Annette Pember | ICT

The court’s opinion marks a far-reaching and potentially lucrative victory for business interests and means it could become harder for the federal government to defend its regulations.

While the implications for Indian Country are still unclear, the decision could intensify opposition to tribes setting their own air and water quality standards, approved by the Environmental Protection Agency, or regulating toxic pollution or public health.

“This could be significant when partner federal agencies like the EPA make decisions about water quality issues on tribes that were previously upheld under the Chevron despect standard,” said Angelique EagleWoman, professor and director of the Native American Law and Sovereignty Institute at Mitchell Hamline School of Law. EagleWoman is a Sisseton-Wahpeton Dakota Oyate citizen.

By respecting Chevron’s rights, the federal government could more easily regulate issues related to the environment, public health, workplace safety, and consumer protection, because federal agencies could fill in the details and enact regulations when the law was not entirely clear.

Opponents argued that such deference gave power to government experts when it should be held by judges.

The impact on the Interior Department, an agency that often handles tribal legal issues, would be relatively minor, according to Matthew Fletcher, a law professor at the University of Michigan Law School and author of the Turtle Talk blog. Fletcher is a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians.

“Chevron was originally a sharp cutting tool that the Interior Department never really used except to decide matters against tribal interests,” Fletcher wrote in an email to ICT. “The end of Chevron means relatively little.”

“Less Regulation”

The Supreme Court’s decision to overturn the Chevron ruling means that a system known as the Skidmore deference will once again become the standard, limiting how federal agencies can interpret statutes, EagleWoman said.

“Skidmore is a lower standard,” EagleWoman told ICT. “If a federal judge is convinced that a federal agency made a good decision, they will agree with it, but it gives the judge much more discretion and latitude.”

Fletcher said the decisions varied depending on which appeals court they went to.

“In (Washington, D.C., and the Tenth Circuit, judicial precedent has allowed Indian canons to prevail over Chevron, but in the Ninth Circuit (where most Indian lawsuits are heard), Indian canon has given way to Chevron,” Fletcher said.

“I think now that Chevron is gone, the Indiana canons could move up in the Ninth Circuit,” he said.

The canons of construction law applicable under the federal law of India have long been recognised as fundamental.

According to Meredith Harris of the American Indian Law Journal, “this canon requires that (1) treaties be interpreted as the Indians could understand them; (2) treaties be interpreted liberally in favor of the Indians, with any ambiguities resolved in their favor; and (3) the abolition of tribal sovereignty or property rights be expressed by Congress in clear and unambiguous terms.”

Fletcher warned, however, that the Indian Canons’ chances of survival in the long term were slim.

“The same judges who criticized Chevron are now criticizing the canons arising from the separation of powers between the federal branches of government, from which Chevron originated,” he said.

As he explained, the canons “recognize a limited, subservient role on the Supreme Court, something that those who overturned the Chevron decision oppose.”

EagleWoman agreed.

“We continue to see the U.S. Supreme Court leaning toward less regulation and less respect for science, technical findings and expertise,” she said. “This (Chevron repeal) has the potential to have a chilling effect on federal agency decision-making than we’ve seen in the past.”

She described the court’s decision as shortsighted.

“Repealing the Chevron deference rule will give federal judges more discretion, even though they often do not understand trust relationships,” she said.

Browsing options

It remains to be seen what impact the ruling will have on Indian Country, however, and many organizations declined to discuss the impact on ICT.

Overturning the Chevron ruling could potentially benefit, for example, a lawsuit brought by a coalition of local and regional governments, tribal authorities and Native corporations seeking to overturn new environmental protections for the Alaska National Petroleum Reserve.

The Alaskan Beacon reported on a lawsuit filed by The Voice of Arctic Inupiat against the Department of the Interior and the Bureau of Land Management, in which the plaintiffs claim that Interior regulations restrict oil development and “transform vast swaths of the Alaska National Petroleum Reserve into a de facto environmental protection unit.”

According to Fletcher, the outcome of the case will depend largely on the political beliefs of the judges appointed.

EagleWoman characterized the argument in the Alaska lawsuit as focused more on process than interpretation, but added, “Often lawyers bring whatever comes to mind to the case.”

Attorneys for Voice of the Arctic did not respond to ICT’s request for comment.

“Tsunami of lawsuits”

Environmental and public health advocates say the court’s opinion could ultimately undermine efforts to reduce air and water pollution, restrict the use of toxic chemicals and even confront new public health threats like COVID-19.

The Chevron decision “limits federal regulators to more tools,” said Cara Horowitz, a professor of environmental law and executive director of the Emmett Institute on Climate Change and the Environment at the University of California, Los Angeles, School of Law.

Horowitz called the ruling “another blow to the EPA’s ability to deal with emerging problems like climate change.”

Vickie Patton, general counsel of the Environmental Defense Fund, said: “This undermines the fundamental rights of Americans at the behest of powerful polluters.”

Wyoming politicians celebrated the decision, WyFile reports, as the state has several active lawsuits against federal agencies.

As journalists Mike Koshmrl and Dustin Bleizeffer have written, about 68 percent of Wyoming’s mineral resources are managed by the federal government.

But the ruling doesn’t necessarily give Wyoming — or anyone else challenging the agency’s decisions — a clear path to victory,

“I think (courts) are going to have a hard time with this because they don’t have the expertise to deal with these very complicated, technical aspects of the day-to-day life of the agency,” Shannon Anderson, an attorney with the advocacy group Powder River Basin Resource Council, told reporters.

In a related ruling, the Supreme Court also ruled in favor of a North Dakota gas station that wants to sue over a debit card swipe fee regulation. The court struck down a federal law that sets a six-year deadline for challenging the regulation.

The court also stripped the Securities and Exchange Commission of its main tool for combating securities fraud. The justices ruled in a 6-3 ruling that people accused of fraud by the SEC, which regulates securities markets, have the right to a jury trial in federal court.

The court found that the SEC’s internal procedures were unconstitutional.

In a dissent joined by her more liberal colleagues, Judge Ketanji Brown Jackson wrote about the impact the recent decisions could have on government regulation. The Chevron ruling came in a case known as Loper Bright Enterprises v. Raimondo, which challenged a rule set for fishing companies by the National Marine Fisheries Service.

“The tsunami of lawsuits against agencies authorized by the Court’s rulings in this case (the SEC) and Loper Bright,” she wrote, “has the potential to cripple the functioning of the Federal Government.”

The Associated Press contributed to this report.