Supreme Court Uses Loper to Limit Regulatory Powers of Executive Agencies

“Gone are the days when agencies simply had to use their knowledge and experience to guess what Congress meant.”

This The six conservative justices of the Supreme Court of the United States (SCOTUS) have once again chosen to ignore decades of precedent – ​​this time in cases Loper Bright Enterprises v. Raimondo ((Catcher) AND Relentless Inc. v. U.S. Department of Commerce (Relentless). The Supreme Court’s decision in both cases put the final nail in the coffin Chevron Respect.

This compliance has played a disproportionately large role in environmental regulation for most of the last half-century. It would be hard to find any significant climate-related regulation in the last 40 or more years that has not benefited from it.

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“Taking down Chevron has been a shared goal of the conservative movement and the Trump administration. They’ve said that over and over again.”

— Mandy Gunasekara

The abolition of respect has long been a conservative goal. Loper is seen as a beginning rather than an end. Mandy Gunasekara, a fellow at the far-right Heritage Foundation and a former EPA chief of staff in the Trump administration, said Drifter decision “creates a huge opportunity to challenge…the regulations. And it could spur additional rush towards restraint of the administrative state on a large scale if the administration changes in November.” (emphasis added)

The name of this deference comes from the 1984 Chevron USA v. National Resources Defense Council (NRDC) ruling, in which the court held that “when a federal statute is ambiguous or unclear, courts should defer to the agency’s interpretation of the law, if that interpretation is reasonable.” This can be seen as creating a rebuttable presumption in favor of federal agencies.

Proponents of this subservience believe that administrative agencies have the necessary collective knowledge and experience—unlike members of Congress and federal judges—to undertake the often years-long rulemaking process. They also believe that the executive branch, unlike the judiciary, is more accountable to voters.

Since the Chevron decision was first announced, the doctrine has been considered settled case law. Its application in 17,000 to 19,000(iii) cases extends far beyond energy and environmental issues to federal regulation in all sectors, including health care, patents, transportation, and national security. In fact, the entire government.

Chief Justice Roberts, writing for the conservative majority, “rejected any suggestion that agencies, rather than courts, are better placed to define what ambiguities in federal law might mean. Even if these ambiguities concern technical or scientific issues that fall within the agency’s area of ​​authority.” (Emphasis added) The chief justice further pointed out that the Chevron case conflicts with the Administrative Procedure Act (APA), which sets forth the powers and duties of federal agencies and courts.

“The principle of judicial humility is giving way to the principle of judicial pride.” ·

—Justice Elena Kagan

Judge Elena Kagan wrote a devastating dissenting opinion, with which Justices Sotomayor and Brown concurred. ‘This is now’courts (not the agency)” This he will exercise power when Congress left room for interpretational discretion.” He goes on to say: “Long-standing precedent in the administrative management center in this way he falls victim a bare assertion of judicial power. The majority despises restraint and clings to power.” (Emphasis added)

Opinions vary on the exact impact of Chevron’s loss of respectability. But most agree that it will have far-reaching practical and political implications for the pace and content of climate policy and regulation in the U.S. Not the least of these effects is the additional time climate-related litigation is likely to take because of the increased caseload of judges — now that the power of administrative agencies has been curtailed.

Influence Drifter decision and “the fate of the regulations will depend on what happens as they start working their way through the courts without Chevron’s protection.” Given the slow pace at which the cases are moving through the courts, it could take years for the impact to be felt Drifter is really famous.

Supreme Court Justice Roberts indicated that the death of deference does not “undermine prior cases that relied on the Chevron framework.” He continued: “The holdings in those cases that specific agency actions are lawful—including the Chevron ruling in the Clean Air Act case—are still subject to a statutory decision despite the change in our interpretive methodology.” (emphasis added)

However, this claim seems rather baseless, considering that the conservative majority had no major problem in erasing 40 years of precedent in Drifter and 50 years for abortion in one fell swoop. Sudden reversals of established precedents are logically opposed to the concept of stare decisis—what came before. In any case, fossil fuel interests will test Roberts’s claim repeatedly in the years to come.

Roberts also pointed out that “even if courts should not defer to an agency’s interpretation of an ambiguous statute, they may take that interpretation into account.” The allusion is to what is known as Skidmore’s RespectAs Bloomberg Law suggests, Skidmore’s Respect is a bit of a misnomer. Skidmore does not force a court to defer to an agency. Instead, the standard “provides that agency rulings, interpretations, and opinions are not determinative of courts but are merely a body of experience and informed judgment to which courts and litigants may properly appeal for guidance.”

Just as important as the decision in Drifter is in itself, the potentially devastating impact of the case is overshadowed by the staunchly conservative Supreme Court’s tendency to strip administrative authority while expanding judicial reach. Before the Loper decision, SCOTUS had suspended President Biden’s freeze on new liquefied natural gas (LNG) export approvals.

The Supreme Court also suspended the actions of the US Environmental Protection Agency “good neighbor plan”to Reduce Nitrogen Oxide Emissions from Power Plants and Industrial Sources,” pending the outcome of a hearing in the United States Court of Appeals.

Decision on Securities and Exchange Commission v. Jarkesydealt a blow to the ability of federal agencies to bring their own cases against polluters and pipeline builders.” The decision “is expected to fundamentally change the role of administrative judges who impose fines and decide disputes at other agencies, such as the Federal Energy Regulatory Commission.” (Politico, paid access) The decisions in those cases reflected the now-familiar 6-3 split between conservatives and liberals on the high court.

Before Loper’s decision, I suggested in a series of articles that Chief Justice Roberts and Justice Barrett might join their liberal colleagues in preserving—if sharpening—deference to both practical and policy concerns and legal principles. Like the other branches of government, SCOTUS has historically low approval ratings. I had identified both justices as the most likely of six conservatives to be concerned about how the Supreme Court was perceived. I was wrong.

The Biden administration was not unaware of the likely outcome of the Loper case when it finalized its rule limiting carbon dioxide emissions from existing coal-fired power plants. The rule applies to existing coal- and gas-fired power plants that plan to remain open after 2039. The rule requires them to reduce or capture 90 percent of their CO₂ emissions by 2032.

The EPA based its argument on “EPA’s traditional approach to setting pollution standards under Section 111 of the Clean Air Act.” It’s unclear whether SCOTUS will agree. Not surprisingly, 27 Republican attorneys general and fossil industry trade groups are in the process of challenging the new rules in multiple lawsuits in federal appeals court in D.C.

If there was ever a question about the impact of Donald Trump’s three nominations to the Supreme Court of the United States (SCOTUS), the answers were given over the past two terms, starting with the repeal of Roe v. Wade which deprived women of constitutional protections preventing them from making their own decisions about abortion, and most recently Drifter.

Ultimately, the problem and solution are political. Hyperpartisanship is destroying US democracy. We live in an era in which finding even broad agreement on basic policy goals has proven impossible. Is it any wonder that Congress cannot pass legislation with enough detail to satisfy conservative lawyers?

Until Both As Republicans and Democrats pledge to transition the country to a low-carbon economy, the cycle of proposed regulations followed by lengthy legal challenges will continue. Drifter This decision made the task easier.

Image Source: Courtesy of Wikimedia

This article was originally published on Civil Notion and Resilience.org