SCOTUS Could Strip Agency Power
Air Date: Week of January 26, 2024
If the Supreme Court were to overturn the forty-year-old Chevron doctrine, it could allow for a reduction in the power of federal agencies like the EPA. (Photo: Thomas Hawk, Flickr, CC BY NC 2.0)
Two cases in front of the Supreme Court are looking to restrict federal agency power by overturning the longstanding Chevron Doctrine. Pat Parenteau, emeritus Professor at Vermont Law School, joins Host Aynsley O’Neill to explain how this could limit the ability of federal agencies to set strong environment and climate regulations.
DOERING: From PRX and the Jennifer and Ted Stanley Studios at the University of Massachusetts Boston, this is Living on Earth. I’m Jenni Doering.
O’NEILL: And I’m Aynsley O’Neill. The majority conservative Supreme Court made waves in 2022 when it overturned Roe v. Wade, throwing out a legal precedent that had protected reproductive rights for nearly fifty years. And the Court has signaled its interest in reversing other established precedents, including one that could bring major consequences for climate and environment. On January 17, two cases were heard in the Supreme Court, both of which proposed overturning the longstanding Chevron doctrine. The country’s highest court had adopted it back in the 1984 case, Chevron v. Natural Resources Defense Council. Pat Parenteau is an emeritus professor at Vermont Law School, and he says the doctrine has guided federal regulatory law for decades.
PARENTEAU: The Chevron doctrine basically says, when Congress writes laws that have some ambiguous terms, in other words, terms that are vague and not precise enough, that agencies like EPA that are interpreting those statutes have some discretion. And as long as their interpretation is reasonable, the Chevron doctrine says courts must defer to the agency's interpretation. And that has been the law for 40 years. And it has been the source of considerable agency authority to deal with problems that Congress did not, and frankly could not, have anticipated many years ago when these laws were originally enacted. If you think about air pollution, water pollution, climate disruption, you know, all of these things have come into focus over the years. And the statutes that were written in the 1970s don't always anticipate those. So the doctrine has been a bulwark of environmental protection for 40 years, and it's now on the line in the Supreme Court.
O'NEILL: So this doctrine has been instrumental in upholding a range of environmental protection rules. But from what I understand, environmentalists were not exactly thrilled about the Chevron doctrine when it was first adopted. Why was that?
PARENTEAU: Well, because it cuts both ways. You see, if an agency, let's take, for example, the prior administration under Trump, that was rolling back environmental protections across the board, you see, that doctrine also applies to agencies that are undercutting or weakening environmental protections. And environmental groups have lost a number of cases, because the courts deferred to an agency's interpretation, even though the interpretation was not as protective of public health and the environment as it might otherwise have been.
O'NEILL: Talk to me about these two cases that the Supreme Court heard. What's going on that's bringing it back up now? What are the arguments for overturning a 40-year-old doctrine?
PARENTEAU: Right. Well, the cases themselves are surprising because they deal with so little. They both involve the requirement in the offshore fishing industry to have monitors on the boats to make sure that fishing boats are not exceeding their catch quotas, because overfishing is a major problem. So the controversy here is over who has to pay for having these monitors on board. The National Oceanic and Atmospheric Administration adopted a rule saying the vessel owners must pay for these monitors. That's what the fishing industry is objecting to. And the statute involved doesn't speak directly to this question of who pays for the monitors. And that's the narrow legal question that's presented in the case. But you see, it's a very, what I would characterize as a "small potatoes" kind of problem. And yet, it's one that the Supreme Court has decided to use as a vehicle to reevaluate the Chevron doctrine. We know that several justices, led primarily by Justice Gorsuch, have had their eye on overturning the Chevron doctrine for many years. They've written about it. Gorsuch has filed dissenting opinions in cases saying we should directly address this and overrule Chevron. So the conservative justices have been waiting for an opportunity to decide once and for all whether the Chevron doctrine will remain as it has for 40 years, or perhaps whether some form of it will remain, albeit one that's significantly modified.
O'NEILL: And Pat, can you explain to me the why somebody would want to overturn this Chevron doctrine? What would be the consequences if it were to be thrown out?
PARENTEAU: Well, I think the industry critics and challengers believe that the agencies are overreaching, and that isn't just the industry. That's a lot of Republican state attorneys general. They're the ones that have been leading the charge against federal authority and particularly environmental regulations. So there's a feeling out there, among what I would say, anti-regulatory forces, that without Chevron, they'll be more successful in challenging, for example, EPA, but other agencies. In this case it’s NOAA, you know, protecting marine mammals and fish, but it could be the Department of Interior protecting endangered species, a number of different agencies that have come under fire. And getting rid of Chevron, these opponents of federal regulation believe, will make it harder for these agencies to restrict activities that people don't want to have restricted.
O'NEILL: So we've seen the conservative Court take down some pretty foundational environmental protections over the last year. We always talk about Sackett versus EPA, which seriously endangered wetland protections in the country. To what extent do you think the Court is likely to continue that trend of chipping away at environmental protection?
PARENTEAU: Yeah, there's no indication that this Court has changed its attitude or view, the majority of the Court, towards not just environmental regulation—I think the bigger picture here is that this Court simply believes agencies across the board have gone too far, that they're asserting authority that only the legislative branch should assert. It's not clear that they're correct, that these burdens that are being imposed by regulation are unjustified. In fact, study after study shows that they are economically justified, that by protecting public health, you have less medical costs, you have less lost time from jobs, you have cleaner air, cleaner water, less cost of treatment for pollution, etcetera. But nevertheless, it's pretty clear that the conservative justices do adopt that worldview, that agencies have too much power. And they are going to cut back on that when they get cases before them like these two cases that are pending today. Like the West Virginia case where they struck down EPA's authority to regulate greenhouse gases from power plants, like the Sackett case you mentioned, where the Court for the first time dramatically reduced protection for wetlands and streams all across the United States. The pattern here is crystal clear: no environmental regulation that comes before this Court is going to emerge unscathed. It may not even emerge still functional. This Court seems to be on a mission to roll back federal regulation.
O'NEILL: And, Pat, if this Chevron doctrine gets thrown out, what would be replacing it?
PARENTEAU: There's another doctrine that we lawyers call Skidmore. And this doctrine basically says, agency interpretations of vague or ambiguous statutes will be given the deference they deserve. In other words, it's what Justice Kavanaugh called, “the power to persuade, not the power to control.” What that means is, if an agency's articulation of its reasons for taking the action it's taking are convincing enough to the courts, then their interpretation will be given some weight. It simply won't be controlling in the way that the Chevron doctrine has required, right? And so what that means practically, think about this for a minute. There are 800 federal judges in the United States right now. If you've removed a rule which is pretty straightforward, if the agency's interpretation is reasonable, you'll have to accept it, and they're going to replace that with individual judges deciding for themselves what these words mean—maybe they'll give the agency some deference or some weight, maybe they won't. Think about the chaos that could create. And if you think about who has appointed many of these judges, former President Trump has appointed over 300 federal judges, of course, including three Supreme Court judges. So I think it's not too hard to say you're going to see a lot of conflict in the lower courts as a result of this decision, because the people that are challenging Chevron aren't going to be satisfied once they do away with the doctrine. They're immediately going to be challenging each and every rule that comes down the pike. And there are many in the pipeline right now with the Biden administration trying to correct what the Trump administration had done.
O'NEILL: So how is this decision going to affect pending cases that are right now trying to challenge the Biden administration's environmental agenda?
PARENTEAU: Right, well, there's a raft of them. The Biden administration is having to replace the old Clean Power Plan that regulates greenhouse gas emissions from power plants. That's in the final stages of being adopted. We know that's going to be challenged. So that's one. Another one is the methane rule, which regulates methane emissions from the oil and gas industry—that’s being challenged. Another one is yet another Clean Water Act rule, which gives states the authority to veto federal permits and licenses for pipelines and other infrastructure where it's damaging or potentially damaging water quality, beneficial uses of water wetlands and so forth. The Endangered Species Act rule that the Department of Interior is adopting to correct what the Trump administration tried to do. All of these rules are in litigation or about to be in litigation. So all of these different cases are going to involve controversial interpretations that could go one way or the other. And if you're just going to leave it to individual judges to make that decision, we're surely going to see inconsistencies, conflict, and uncertainty going forward.
O'NEILL: Pat Parenteau is an emeritus professor of law at Vermont Law School. Pat, as always, thank you so much for your time today.
PARENTEAU: Thanks, Aynsley. It's always good to be with you.
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