Blog By: Phillip Burress
Hidden amongst the many influential (and somewhat controversial) decisions made by the Supreme Court over the summer of 2024 was an administrative law decision that has likely flown under the radar for anyone outside of the legal profession. The U.S. Supreme Court's decision in Loper Bright Enterprises v. Raimondo overturned four decades of court precedent and has forever changed the relationship between businesses and government agencies that regulate them.[i] One of the biggest concerns surrounding this case is how the Environmental Protection Agency (EPA) is going to respond to the death of Chevron deference—a precedent that has been around nearly as long as the agency itself.[ii] Thankfully, the EPA took note of the way court opinion was shifting on Chevron nearly a decade ago and altered their regulations to reflect that.[iii] What does this mean? The death of Chevron deference should not bring about the regulation doomsday many were fearing, but that does not mean such a decision will not substantially affect the EPA for years to come.
The Chevron deference doctrine, a legal analysis designed to judge the validity of a government agency’s interpretation of a law or statute, has been in place since Chevron U.S.A., Inc v. Natural Resources Defense Council was decided in 1984.[iv] The doctrine itself was applied when the legislative branch passed an ambiguous statute, ultimately meaning the legislation passed had not directly addressed the question in dispute.[v] It directed the court to consider the agency’s interpretation of that statute and defer to their interpretation, so long as it was deemed reasonable.[vi] With the reasonableness standard being one of the lowest standards of civil law, this gave immense power in the execution of the statute to the group most qualified to interpret it—the agency responsible for executing it.[vii] Created as a doctrine to uphold the regulations put in place by the Reagan-era EPA’s Clean Air Act, the doctrine quickly grew beyond that and had been cited by federal courts more than 18,000 times before being overturned in June of 2024.[viii]
The Supreme Court overturned this doctrine in Loper because the Justices felt that Chevron deference was inconsistent with the Administrative Procedure Act (APA)—an act Justice Roberts believes instructs the courts to “decide legal questions by applying their own judgment.”[ix] Because of this interpretation of the APA, the Supreme Court believes that it “makes clear the agency interpretation of statutes–like agency interpretations of the constitution–are not entitled to deference.”[x] This understanding ultimately converts an agency regulation’s interpretation into a question of law to be determined by the court, leaving no deference for the agency responsible for executing it.[xi]
Thankfully, agency regulations are not under as direct a threat as many people thought when Loper was decided earlier this year. In a clear response to the shifting of the winds against Chevron, courts and the Department of Justice began reducing their reliance upon Chevron nearly a decade ago.[xii] In fact, environmental law practitioners note that the Department of Justice stopped relying upon Chevron during the Trump Presidency (2016-2020).[xiii] A direct result of this change in approach meant that by the time the Loper decision had been announced in June, 2024, the Supreme Court had not relied upon Chevron since 2016.[xiv]
Viewing this from the standpoint of the EPA, the last case the agency won relying upon Chevron was the aforementioned 2014 case titled E.P.A. v. EME Homer City Generation, L.P..[xv] Since then, regulations and interpretations made by the EPA have been largely statutorily based with one of the most recent examples being in a final rule issued by the EPA in May of 2024.[xvi] The aforementioned rule designated two chemicals as hazardous, relying upon the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) that was passed by Congress in 1980.[xvii] However, even this rulemaking has come under scrutiny by federal courts from challenges made by the U.S. Chamber of Commerce, Associated General Contractors, Inc., and National Waste & Recycling Association.[xviii] While Loper Bright Enterprises may not have as direct an effect on rulemakings relying upon statutory authority, it does open the floodgates for more challenges to the EPA and other government agencies, not only on future rulemakings but also on past rulemakings that had relied upon Chevron.[xix]
The effects a monumental decision like Loper Bright could have on the EPA likely will not be fully understood for years to come. However, it is clear that this decision has forever altered the relationship between government agencies and the businesses and entities they regulate. Considering agencies will be more susceptible to litigation moving forward, agencies will likely have to spend more time finding statutory authority for the rulemakings they publish. While some may view this change as a positive because it gives more power to the courts and requires agencies to find clear and concise authority for their future decisions, this decision has none the less taken the discretion on ambiguous statutes out of the experts’ hands. In addition to taking away discretion, this decision causes delay in agencies publishing rulemakings on issues that might require swift action. The danger in shifting power to those who are not experts in particular areas is a real and looming threat—one that might eventually impact Americans in their everyday lives.
[i] John P. Elwood et al., Chevron Overturned: Impacts on Environmental, Energy, and Natural Resources Regulation, Arnold & Porter (July 2, 2024), https://www.arnoldporter.com/en/perspectives/advisories/2024/07/chevron-overturned-impacts-on-environmental [https://perma.cc/T69J-VBWL].
[ii] Alice C. Hill, The U.S. Supreme Court’s Chevron Deference Ruling Will Disrupt Climate Policy, Council on Foreign Rels. (Aug. 7, 2024), https://www.cfr.org/expert-brief/us-supreme-courts-chevron-deference-ruling-will-disrupt-climate-policy#:~:text=Environmental%20Protection%20Agency%20%28EPA%29%20Administrator%20Michael%20Regan%20anticipates,legal%20challenges%20to%20EPA%20actions%2C%20even%20past%20ones [https://perma.cc/EDC4-QLSH].
[iii] Jean Chemnick, What Chevron’s end could mean for EPA climate regulations, E&E News by Politico (June 6, 2024), https://www.eenews.net/articles/what-chevrons-end-could-mean-for-epa-climate-regulations/ [https://perma.cc/K4CU-TPG8].
[iv] Chevron, U.S.A., Inc v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
[v] Id.
[vi] Id.
[vii] Id.
[viii] Chemnick, supra note iii; Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2307 (2024).
[ix] Loper Bright Enters., 144 S. Ct. at 2249..
[x] See id.
[xi] Nowell D. Bamberger et al., After Chevron: What the Supreme Court’s Loper Bright Decision Changed, And What IT Didn’t, Harv. L. Sch. F. on Corp. Governance (July 18, 2024), https://corpgov.law.harvard.edu/2024/07/18/after-chevron-what-the-supreme-courts-loper-bright-decision-changed-and-what-it-didnt/ [https://perma.cc/GUY3-LJ7Q].
[xii] The impact of overturning the Chevron decision, StanfordReport (June 28, 2024), https://news.stanford.edu/stories/2024/06/stanfords-deborah-sivas-on-scotus-loper-decision-overturning-chevrons-40-years-of-precedent-and-its-impact-on-environmental-law [https://perma.cc/9FPW-565S].
[xiii] Id.
[xiv] Chemnick, supra note iii.
[xv] EPA v. EME Homer City Generation, L.P., 572 U.S. 489 (2014).
[xvi] Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances, 40 C.F.R. Part 302 (2024).
[xvii] Id.
[xviii] Chamber of Com. of the United States of America v. U.S. EPA, No. 24-1193 (D.C. Cir. filed June 10, 2024).
[xix] Loper Bright Enters., supra note ix.