Supreme Court Puts a Limit on Federal Regulators. What Happens Now?

In 1984, the Supreme Court issued a unanimous ruling in favor of the Environmental Protection Agency’s (EPA) Clean Air Act regulations. The EPA regulations allowed states to treat all pollution from a single group of industries as a single source of pollution for regulatory purposes. A group of environmental groups challenged the rule, arguing that it allowed facilities to operate that emit pollutants that would not otherwise pass regulatory review.

It was a technical exercise in statutory interpretation — but the long-term impact of the case had little to do with pollution or the intricacies of the Clean Air Act. The decision included: Chevron USA Inc. v. Natural Resources Defense Council, Inc., was a small revolution in administrative law.

Under the Administrative Procedure Act (APA), which governs regulatory agencies, courts are required to resolve disputes with agencies by interpreting the relevant statutes themselves. However, Chevron created a new standard: If a statute was ambiguous, courts had to defer to the agency’s interpretation. This became known as the “Chevron respect.”

Chevron deference seemed reasonable enough at first glance. The regulatory provisions and the rules that flow from them are quite complex, it was thought, and require specialized knowledge to understand them. Courts were instructed to defer to agency interpretations because agencies have technical staff with subject-matter expertise.

But over time, Chevron deference became a mechanism for expanding the authority of executive agencies. If an agency wanted to take some action that was not expressly authorized by statute, agency lawyers could hunt for an apparently ambiguous statute and then tell the courts that the agency’s new, extrastatutory authority stemmed from the vague language of the law.

Courts, designed in part as a check on the executive’s excessive powers, tied their hands. Bureaucratic power expanded over the next four decades Chevron because the courts were required to accept the agency’s interpretation.

Control Chevron deference ended this summer. In a 6–3 decision written by Chief Justice John Roberts, the Supreme Court reversed Chevronstating that it violates the APA. Writing on behalf of the majority in the case Loper Bright Enterprises v. RaimondoRoberts wrote that the statute “requires courts to exercise their independent judgment in deciding whether an agency acted within its statutory authority.” Furthermore, “courts may not rely on an agency’s interpretation of the law merely because the statute is ambiguous.”

What comes next? The most likely immediate result is a modest reduction in executive overreach, as agencies no longer feel emboldened to justify questionable actions on the basis of statutory ambiguity. In some cases, courts may still give agency interpretations a thumbs up. Case Western Reserve University law professor Jonathan Adler noted that the ruling does not require judges to ignore agency interpretation; it merely removes the requirement to refer to them when the underlying provision is ambiguous and the interpretation is justified. Loper Bright, in Adler’s view it eliminates Chevroncourt requirements respect and replaces it with judicial law respect.

In the long run Loper LightThe greatest impact may be on Congress. To some extent, the expansion of executive power, which Chevron enabled came at the expense of the legislative branch. In recent decades, Congress has sometimes chosen to shift its constitutional responsibilities to executive agencies, giving them the authority not only to execute laws but also to create them through the rulemaking process. After all, agency rules are not suggestions or guidelines—they have the force of law, just as laws passed by Congress do. But unlike laws passed by Congress, voters do not have direct access to the bureaucrats who write the rules. Loper Light should, or at least could, help restore some democratic accountability to the federal government.

But does Congress really want to take back the power it has given to the executive branch? In a July panel on the effects of Loper LightPat Toomey, a former GOP senator from Pennsylvania, has suggested that some in Congress may not want that accountability; it could hurt them at the ballot box. In government, the desire for power often coincides with a determination to avoid accountability.

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