The Real Goal of Taking Down Chevron: Suppressing Agency Rulemaking

This article was reprinted from SciLight, an independent science policy publication on Substack.

The last few weeks have been difficult for the U.S. legal framework for protecting public health and safety and making science-based decisions. In a series of truly problematic decisions, the ultraconservative majority of the U.S. Supreme Court has ensured that the difficult task of regulatory agencies in protecting the public interest will become even more difficult, if not impossible in many cases.

Their June 28 decision destroyed the “Chevron Deference,” the ability of agencies to rely on reasonable interpretations of Congress’s mandates based on their own expertise. Instead, the argument is that Congress should be more transparent about its mandates, and if it isn’t, the courts should decide what the best interpretation of the statutory mandate is, not the experts at the agencies. And when in doubt, the agencies should look to Congress for clarification. Sure. That will work…

Most of the commentary I’ve read, including posts by my colleagues on Scilight, has focused on the fact that the reversal of the Chevron precedent means that courts no longer have to defer to the technical interpretations of agency experts to satisfy the agency’s statutory orders. As a result, judges with no expertise in the merits of the case will be deciding the technical details and best approach to a vast range of issues involving public health, environmental protection, public safety, environmental protection, and more.

To be clear, according to Chevron, judges were advised to defer to agency experts on technical issues if their interpretation of the law was, in the judge’s opinion, “reasonable.” In other words, judges already had a lot of discretion in how they considered expert evidence. But now they don’t even have to consider deferring to agency expertise. Some will, some won’t, most likely. The result is more inconsistent rulings and more confusion about what a given legal order means in practice.

Of course, that also means there’s an even greater incentive for those who don’t like a particular rule to challenge it in court, appeal it, and appeal it again. After all, without any guiding precedent, you might just find a judge or appellate panel all too ready to dismiss the opinions of those with scientific and technical knowledge and experience and replace them with their own views.

This means that virtually every regulation of private actions that are supposed to serve the public good will be delayed, delayed, and delayed. More work for overburdened courts. More confusion for those trying to comply with regulatory rules. Fewer actions that truly serve the public interest, not private interests, business interests, or monetary interests.

It is easy to see that this is the true intent of the Supreme Court’s Chevron ruling. It is also the intent and consequence of the ruling blocking the use of administrative law judges by the SEC—and probably by extension other agencies. And indeed the intent of the presidential immunity case, which seems so completely at odds with our constitutional democracy. Political consequences aside, if the president and his appointees are immune from the consequences of improper, even illegal, meddling in the agency’s operations, is the board liable at all? If the president orders the agency to violate its statutory mandate, who is liable?

I really have no idea and no way of knowing until it happens – and it will…

What activities should an agency expert perform?

I don’t pretend to have a law degree, but I am a scientist and a policy practitioner. In other words, I have spent most of my career researching, reviewing studies and analyses, and interpreting the scientific evidence that informs environmental policy. And as an agency official, I have made and signed off on regulations issued under the agency’s statute. In my case, the agency was NOAA, and its policy was the protection and management of living marine resources. That included the policy that was at the heart of the cases that went to the Supreme Court and led to this terrible overturning of precedent. At issue was whether the agency should require fishermen to pay the cost of on-board observers who were placed on their vessels to monitor and report on bycatch of species that were not intended to be caught by the fishermen under their fishing permits. That bycatch includes other species of commercial value, as well as protected and endangered species such as whales and turtles.

Congress mandated that bycatch be minimized and that protected species not be taken. Congress also authorized the use of observers. However, Congress decided not to pay the costs of some observers and to pass them on to the companies operating the fisheries. And in large fisheries like Alaska, the costs are borne by the fishing companies. However, Congress did not say that fishermen should pay the costs in this particular Atlantic herring fishery, even though that fishery is quite profitable and has been since the herring stocks recovered from massive overfishing—a story for another time.

So as an agency official, when an agency doesn’t receive funds for observers but is required to reduce bycatch, what are the options? Ignore the bycatch reduction requirement? Ask the fishing vessels to pay the costs? Close the fishery? A “reasonable” interpretation, but I suppose perhaps not the only one, is that fishermen bear some of the costs (note: in neither case do they bear the entire cost, even though they are the ones who affect the public resource).

Does anyone seriously think that going back to Congress and asking them to more clearly define who should bear the costs is an option if you are going to do your job of fulfilling mandates already written into law? As far as I understand it, Congress can barely agree to fund the government and pay the already outstanding bills! The issue of observer costs has been around for decades. Should the agency simply wait for Congress to be “clear” and in the meantime maybe all the whales, turtles and dolphins will be killed? Other fisheries will lose out due to herring bycatch…

Now that all pretense of respect for expertise has disappeared, what will officials do? They will likely be even more cautious. Move more slowly. Let the courts decide the highly technical issues. After all, the highest court in the land just said to hell with your expertise and common sense!

Deregulation Successfully Completed! Ticked Off!

Make no mistake, this was a long-term strategy not to make agency decisions more efficient, but to make them much harder. To make regulation harder so that companies have even more freedom. It’s the big companies and the army of lawyers who already have the upper hand over any regulatory control. Now that hand could be even bigger.

And who loses? Well, you guessed it. Everyone else.

The court does not make esoteric rulings that have no meaning to most people. They take a chainsaw to our health, safety and environmental protection system.