Industry Should Celebrate SCOTUS Decision
The Supreme Court’s overturning of the so-called Chevron deference doctrine in its June 28 Loper Bright decision may be one of the more consequential decisions of the Roberts court, with potential ripple effects extending to every industry that falls under the regulatory purview of government agencies, including the maritime and agricultural industries.
That’s because it trims the claws of the regulatory state. The 1984 Chevron ruling said the courts must defer to an agency’s own interpretation of its rules in cases where the statutory language was ambiguous—as long as their interpretation was “reasonable.” And the lower courts seized on it. What ensued was an uninterrupted 40-year expansion of the powers and prerogatives of federal agencies.
Chief Justice Roberts’ ruling is crystal clear: “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the [1946 Administrative Procedures Act] requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.”
The original Chevron decision in 1984 didn’t even refer to the APA, on which it was supposed to be a gloss. Its assumption that Congress intended agencies, rather than courts, to resolve ambiguities in the law was an enabling fiction that never had a basis in the Constitution, judicial precedent or statutory law. Even its defenders conceded that much.
Loper Bright is the most important of a number of recent Supreme Court cases that have nibbled away at agencies’ unchecked authority to say what their regulations mean, and to impose them without challenge from courts.
Chevron defenders claim its overturning leaves the environment defenseless. But we didn’t have the Chevron doctrine when Congress came together to pass the Clean Water Act in 1970, the framework for all subsequent environmental legislation.
The WOTUS [Waters of the United States] wars were a prime example of “regulatory whiplash.” Far from ensuring legislative consistency, Chevron ended up allowing agencies to change the meanings of regulations according to which party was in power, thus leaving affected parties unsure of their legal standing, rights and obligations. The Supreme Court, which had also created confusion regarding WOTUS through its unfortunate ruling in Rapanos v. United States and Carabell v. United States (2006), corrected that mistake and tried to put the WOTUS wars behind it with its ruling in Sackett v. EPA in 2023.
In her dissent, Justice Elena Kagan argued that Chevron allowed agency experts to fill in the blanks of Congress’ lack of expertise: “The regulatory statutes Congress passes often contain ambiguities and gaps. Sometimes they are intentional. Perhaps Congress ‘consciously desired’ the administering agency to fill in aspects of the legislative scheme, believing that regulatory experts would be ‘in a better position’ than legislators to do so. Or ‘perhaps Congress was unable to forge a coalition on either side’ of a question, and the contending parties ‘decided to take their chances with’ the agency’s resolution. Sometimes, though, the gaps or ambiguities are what might be thought of as predictable accidents. They may be the result of sloppy drafting, a not infrequent legislative occurrence.”
This sounds like Congress throwing up its hands and turning lawmaking over to unelected bureaucrats—precisely the objections raised against Chevron by its opponents. The other danger of this approach is that of allowing or encouraging members of Congress to write deliberately vague and sloppy laws precisely to give agencies more unreviewable powers.
The Chevron doctrine made it much harder for ordinary citizens to challenge agencies, even in clear cases of abuse. We will never know how many citizens surrendered their rights and capitulated, or never bothered launching a challenge, rather than face the legal hurdles and expenses of a prolonged fight with federal agencies.
Contrary to what the White House claims, Loper Bright will not be a “convulsive shock” to the legal system, nor will it open floodgates of litigation. Suing a federal agency remains a momentous decision not to be undertaken lightly. But it does restore a proper division of government powers to Constitutional proportions, and it does make it easier for ordinary citizens to challenge agencies that overreach and abuse their statutory authority.
We agree with law professor Glenn Harlan Reynolds, who wrote, “The upshot [of Loper Bright] now is that if Congress wants agencies to do things, it has to tell them to. If agencies think their statutes are inadequate to their purpose, they can ask Congress to amend them. Rather than a threat to democracy, this is a modest return of decision-making to democratically elected legislators, and out of the hands of unelected bureaucrats.”
