Supreme Court Overturns Chevron Doctrine
Implications for Climate and Conservation
EPA Ruling. © Adam Zyglis, The Buffalo News, NY
Editors’ Note: The recent decision by the United States Supreme Court to overturn the Chevron doctrine has broad and frightening implications for the conservation goals of Wildlands, Woodlands, Farmlands, and Communities. To achieve our vision, land conservation and government regulation must work hand in hand. This decision severely limits the latter. To offer readers a better understanding of this, we asked Professor Patrick Parenteau, a legal scholar, to interpret the decision for us.
What Happened
On June 28, 2024, by a 6-3 vote along partisan lines, the Supreme Court issued a pair of decisions in Loper Bright v. Raimondo and Relentless Inc. v. Department of Commerce to overturn the landmark 1984 ruling in Chevron v. Natural Resources Defense Council, which established the doctrine that courts must defer to agency interpretations of ambiguous statutes where such interpretations were deemed reasonable, grounded in solid science, and in furtherance of legislative objectives.
Chevron has been cited over 16,000 times—the most of any administrative law decision in history—and has had an enormous impact in shaping modern environmental law as well as many other areas of federal regulation including food safety, labor relations, and financial markets.
Ambiguity is inherent in environmental law because of the complexity and uncertainty of the subject matters involved. Congress cannot foresee all future threats to public health and ecological integrity at the time statutes are being drafted. Nor does it have the expertise to spell out in detail everything agencies must do to abate pollution, conserve natural resources, recover endangered species, stabilize the climate, and a host of other things necessary to maintain a livable planet for this and future generations.
For these reasons, Congress wisely chose to delegate broad authority to expert agencies like the Environmental Protection Agency when it began enacting the nation’s landmark environmental laws starting in 1970 with the National Environmental Policy Act and Clean Air Act, followed by myriad laws addressing water quality, endangered species, toxic substances, hazardous waste, public lands, oceans, and much more. Though most of these laws have not been updated since the 1990 amendments to the Clean Air Act, they still provide the regulatory framework for much of the federal government’s response to the climate and biodiversity crises that Congress could not have foreseen decades ago.
When the text of these laws is vague and Congress’ intent is unclear, the question becomes who decides what the law means. Under the Chevron doctrine, the answer was that the agency interpretation should stand so long as it is reasonable. The rationale is that in the face of ambiguity, expert-staffed agencies, which are accountable to an elected president, are better able than federal judges to make policy decisions.
In his majority opinion in Loper Bright, Chief Justice Roberts flatly rejected this rationale. Instead, he said that courts “must exercise their independent judgment” and “may not defer to an agency interpretation of the law simply because the statute is ambiguous.” In the chief justice’s view: “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”
In a forceful dissent, Justice Kagan pointed out that Chevron had been the law of the land for 40 years and “has served as a cornerstone of administrative law.” Kagan said the Court has now “flipped the script” and turned a “rule of judicial humility” into “a rule of judicial hubris.” She warned that overturning Chevron would be “a massive shock to the legal system.”
What It Means
The first question raised in the wake of Loper Bright is what happens to all the rules and decisions that were upheld based on Chevron. Chief Justice Roberts attempts to quell concerns by observing that the doctrine of statutory stare decisis applies, and that reliance on Chevron itself is not a “special justification” for overruling prior rulings upholding agency interpretations. While somewhat reassuring, this does not entirely foreclose attempts to invalidate rules already on the books. Moreover, in another case decided this term called Corner Post v. Board of Governors, the Court ruled that the six-year statute of limitations governing lawsuits against the government is not triggered until the party seeking to challenge the rule has been injured. This opens the door to challenges to rules adopted decades ago.
Another question is whether Loper Bright eliminates judicial deference to and respect for agency decision-making. Roberts’ opinion leaves undisturbed judicial deference to agency rulemaking based on factual determinations and technical judgments, where there is a clear delegation from Congress. For example, under the Endangered Species Act the decision to list a species as threatened or endangered must be made “solely on the basis of the best scientific and commercial data available” to the Secretary of Interior. At several points in his opinion, Roberts refers to what is known as “Skidmore deference,” a reference to the 1944 Supreme Court decision in Skidmore v. Swift, which held that deference to agency interpretations, though not binding, may have significant persuasive force, particularly where they rest on facts within the agency’s expertise or were issued contemporaneously with the statute and remained consistent over time.
Another factor to consider is the maxim, “What’s sauce for the goose is sauce for the gander.” This means that the “no deference” standard can cut both ways. For example, environmental advocates might be able to challenge agency interpretations that seek to weaken protection, something we saw with the first Trump administration and might see again depending on the outcome of the November elections. Overall, however, the loss of Chevron deference in close cases will more likely result in weaker rules and decisions dealing with the twin crises of climate disruption and biodiversity loss, neither of which are comprehensively addressed in the existing body of federal regulatory law.
A final point about the impact of Loper Bright is that it cannot be viewed in isolation. Examining Loper Bright in the context of other recent rulings like West Virginia v. EPA and Sackett v. EPA reveals a clear pattern of decisions whereby the conservative majority of the Supreme Court aims to rein in agency authority and to require Congress to be more explicit in its delegation of regulatory powers. For example, with West Virginia v. EPA striking down EPA’s clean power plan, the Court invented the “major questions doctrine,” barring agency rules that the Court believed would have “vast economic and political significance” requiring more explicit statutory authority. This is an unprecedented assertion of judicial power demanding that Congress change the way it has traditionally delegated authority to implement complex environmental programs. Opponents of climate and environmental regulations have seized on the vague contours of the major questions doctrine to challenge dozens of rules, and have found sympathetic judges in the ultra conservative Fifth Circuit and elsewhere. The adoption of the major questions doctrine could prove to be more dangerous than the dissolution of the Chevron doctrine.
What Comes Next?
The cumulative effect of the Supreme Court decisions in Loper Bright, West Virginia, Sackett, and Corner Post, with more to come next term, is to destabilize federal environmental law and hamstring the regulatory authority of federal agencies to protect the public and the environment. Yet the problems are not going away. In fact, they are getting worse. Damage from climate disruption is accelerating, and scientists warn that we are approaching dangerous tipping points from which we may not be able to recover. Conservation biologists warn that we could lose over a million species this century unless drastic action is taken to conserve and restore the ecosystems on which they depend. According to the Centers for Disease Control and Prevention, PFAS, PFOA, and other “forever chemicals” have been detected in the blood of 97% of Americans. Microplastics are environmental pollutants that prevail in the oceans, remote islands, and polar regions, presenting a major emerging threat to ecosystem integrity around the globe. And so on.
Dangerous, life-threatening chemicals are abundant in our environment, and federal regulatory authority is now much more complicated. Photo courtesy of New Hampshire Department of Environmental Services.
Quitting is not an option. What is needed is a new game plan to tackle these problems. It involves five major components. First, Congress must do a better job of writing the laws and making clear what the intent is and what authority it is giving to agencies, and with what limits, to guard against abuse. This is easier said than done, and, given our current bitter partisan divide, it is unrealistic to expect major changes anytime soon. But environmental advocates must continue to develop solutions to the problems we face, to build coalitions to support the changes we need, to draft the legislation required, and to be ready when the opportunity arises to lobby for stronger new laws. To take one example, Congress could amend the Administrative Procedure Act (APA) to make it clear that courts must defer to reasonable agency interpretations of ambiguous statutory language. This would have the effect of overturning the Loper Bright decision as that ruling was based on the current language of the APA. Congress has the constitutional authority to define the jurisdiction of the lower federal courts and to limit the scope of their review of agency actions.
“The cumulative effect of the Supreme Court decisions in Loper Bright, West Virginia, Sackett, and Corner Post, with more to come next term, is to destabilize federal environmental law and hamstring the regulatory authority of federal agencies to protect the public and the environment.”
Second, agencies must do a better job of building administrative records that will withstand the closer scrutiny that a more conservative federal judiciary is bringing to bear. This means carefully developing the facts and evidence to support what is being proposed, but even more importantly explaining how the agency’s interpretation is the “best reading” of the statute in question, how what is being proposed is consistent with the way the agency has always interpreted and applied the law, how it fits squarely within the agency’s “wheelhouse” of expertise, how it can be implemented without undue economic cost on regulated entities, and whether it will in fact produce net economic benefits for the nation. In its new greenhouse gas regulations for coal fired power plants and tailpipe standards for cars, the EPA has already incorporated the lessons of the West Virginia decision and is not counting on Chevron deference. Time will tell if it will be successful in the litigation working its way through the courts.
Third, states must step up to fill the gaps created by deregulation at the federal level. Nowhere is this more obvious than with the dramatic reduction in the scope of the geographic jurisdiction of the Clean Water Act because of the Sackett decision. The EPA estimates that over half of the nation’s wetlands are no longer protected, including thousands of miles of ephemeral and headwater streams deemed critical for water quality and ecological integrity. Some states have moved to strengthen their laws, while others have moved in the opposite direction. The same political divide that is preventing meaningful legislation at the national level is present at the state level with “blue” states stepping up and “red” states stepping back. Fixing that problem is not going to be easy and will require a grassroots effort over a much longer period. This effort clearly has its limits, as individual states are powerless to deal with interstate pollution problems and have limited ability to deal with global problems like climate disruption and biodiversity loss. There are also constitutional limits, namely the dormant commerce clause, on what states can do to “export” their laws to regulate activities in other states. For example, in North Dakota v. Heydinger the Eighth Circuit struck down Minnesota’s renewable energy requirement because it attempts to control business that takes place beyond state borders.
“Quitting is not an option. What is needed is a new game plan to tackle these problems.”
Fourth, the nonprofit community must shoulder a greater burden of taking action to conserve critical natural resources like forests, wetlands, grasslands, and farmland that serve as habitat for imperiled species and act as sinks to sequester carbon. These efforts begin at the local level but must be connected to statewide and regional organizations that serve to build a landscape level approach to conservation. A new architecture must be built that resembles a latticework of groups working collaboratively to achieve long-range goals of sustainability with attention to the needs for creating economic opportunities that leave no one behind. Groups that are closest to the ground are in the best position to bridge the political divide that exists between urban and rural populations.
Fifth, the philanthropic community must step up its financial support of nonprofit groups and others working hard to save the planet. The Nature Conservancy has calculated that $700 billion is needed to reverse the global biodiversity crisis. Yet nature conservation is still only the fifth biggest area for philanthropic giving. Studies show that philanthropy can be the catalyst for leveraging greater amounts of funding from private investors and governments. The funding gaps for climate mitigation and adaptation are even greater. The global consulting firm McKinsey estimates that nations should be spending $9 trillion per year on mitigation to achieve the goal of net zero carbon emissions by 2050. The United Nations Environment Program estimates that countries may need to spend up to $300 billion annually by 2030 and $500 billion by 2050 on climate adaptation, but current funding is 5-10 times less than that. Philanthropy cannot bridge this gap, but it can help, and it will be especially critical in helping the most vulnerable communities prepare for and adapt to the unavoidable impacts of heat waves, wildfires, floods, landslides, and the other onrushing impacts of climate disruption.
“A new architecture must be built that resembles a latticework of groups working collaboratively to achieve long-range goals of sustainability with attention to the needs for creating economic opportunities that leave no one behind. Groups that are closest to the ground are in the best position to bridge the political divide that exists between urban and rural populations.”
Conclusion
All is not lost. There is still time to turn things around. The Supreme Court is making it harder for environmental agencies to do the work that is needed, but it is also creating opportunities for others to step up and find new ways to combat pollution and biological impoverishment. There is much to do and no time to waste, but the rewards are well worth the effort. And our kids and grandkids will thank us.
Patrick A. Parenteau is Emeritus Professor of Law and Senior Fellow for Climate Policy in the Environmental Law Center at Vermont Law School. He formerly served as Vice President for Conservation with the National Wildlife Federation, Regional Counsel to the New England Regional Office of the EPA in Boston, and Commissioner of the Vermont Department of Environmental Conservation.