If the wind blew through Homer City, Pa. – once the home of the largest coal-fired power plant in Pennsylvania – it might have carried the smoke in many directions. It might have polluted Ohio, or Maryland, or West Virginia. It might have ended up in New York.
Who has the power to regulate emissions that harm residents of neighboring states? A judge? The state of Pennsylvania? Or the federal government?
In 2014, the Supreme Court ruled that the federal government, through the Environmental Protection Agency, had the authority to take the reins.
In her opinion, Supreme Court Justice Ruth Bader Ginsburg ruled, in effect, for the experts.
She drew on a legal doctrine known as Chevron deference, in which the courts deferred to the determinations of experts in federal agencies to create regulations in cases in which the laws were unclear or ambiguous.
Last month, the Supreme Court scrapped that practice. The justices handed that authority to judges instead of experts.
“The disappearance of Chevron makes things a little more difficult for the good guys.”
– David Vladeck, professor, Georgetown University Law Center
Eliminating the requirement for judges to defer to agency expertise leaves “a huge gap for mischief,” said David Vladeck, a professor at the Georgetown University Law Center.
“Air emissions, federal lands, federal lands offshore, PFAS cases, perchlorate cases, all of those, I think, might be in jeopardy,” Vladeck said.
“I do think there’s a lot at stake, and the disappearance of Chevron makes things a little more difficult for the good guys.”
Senate Democrats try to restore Chevron
This week, several Democrats in the U.S. Senate introduced a bill to restore the role of federal agencies in regulation.
The Stop Corporate Capture Act would codify Chevron deference and shift the power to make rules back to federal agencies. Further, it would allow agencies to reinstate rules that are rescinded by Congress, require rule-making participants to disclose industry ties and create an “Office of the Public Advocate” to bring the public into the process.
A press release from the office of Sen. Elizabeth Warren, D-Mass., said that “the Supreme Court’s overturning of Chevron undermines our government’s ability to promote worker safety, ensure clean air and water, and protect consumers.”
The bill was first introduced in the U.S. House by Rep. Pramila Jayapal, D-Wash., in 2022.
Ending four decades of regulatory power
In the four decades preceding the recent Supreme Court decision, judges deferred to the authority of federal agencies to determine how to interpret the intent of Congress.
In 1984, in Chevron v. Natural Resources Defense Council, the Court adopted that doctrine to resolve a dispute over an interpretation by the Environmental Protection Agency. The Supreme Court allowed the EPA to define a “stationary source” of air pollution, even though the statute did not specifically define it.
Earlier this year, in two cases, the Court took up the question of whether to maintain the Chevron doctrine.
Both cases, Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo, involved commercial fishing companies that challenged a rule by the National Marine Fisheries Service.
According to SCOTUSblog, the marine service required the herring industry “to pay for the costs . . . associated with carrying observers on board their vessels to collect data about their catches and monitor for overfishing.”
Chief Justice John Roberts wrote that Chevron deference conflicts with the Administrative Procedure Act and that Congress expects courts to “handle technical statutory questions.”
In a case that involves assessing the smoke blowing out of Homer City (E.P.A. v. EME Homer City Generation, L.P.), that approach would have meant that a judge, instead of EPA scientists, would have reviewed extensive scientific documentation.
A similar case included evidence about 2,500 wind flow patterns. Without Chevron deference, a judge – trained in law, but not in the assessment of wind currents – could have decided whether the Homer City plant was endangering the health of people in New York City or Connecticut or Pittsburgh.
Ruling on science from the bench
The question now: Will judges continue to listen to scientists and other experts in federal agencies?
Experts in environmental law said that in some cases, judges will continue to listen to agency experts. In other cases, they will rule without deferring to that expertise.
“It’s unlikely that we’re in a situation where federal jurists are just throwing out all expertise.”
– Dan Snyder, director, environmental enforcement project, Public Justice
“I think there are two sides to this coin,” said Daniel C. Snyder, director of the environmental enforcement project at Public Justice.
“I think it’s unlikely that we’re in a situation where federal jurists are just throwing out all expertise altogether,” said Snyder, who also litigates Freedom of Information Act cases for U.S. Right to Know.
Court watchers from public interest groups fear that losing the legal safety net of the courts’ deference to regulators will empower judges to impose ideological rulings in environmental and health cases.
Judges aren’t always well-equipped to deal with complex science.
“Judges are generally generalists,” said Allison Zieve, director of the litigation group for the nonprofit public interest organization Public Citizen, which has litigated Freedom of Information Act cases for U.S. Right to Know.
“They hear whatever case comes before them, all sorts of cases.”
For example, she said, “they don’t have a ton of experience with the Motor Vehicle Safety Act.”
The judges’ lack of scientific expertise went on display in June when the Supreme Court corrected an opinion that contained the wrong scientific terminology.
In a Supreme Court ruling on emissions-control measures of nitrogen oxides (Ohio v. Environmental Protection Agency), the opinion, written by Justice Neil Gorsuch, referred to “nitrous oxide” – also known as laughing gas.
“They issued this opinion,” Snyder said, “the Supreme Court, with its clerks and all of its cite-checking that’s supposed to be going on – and they had laughing gas in there.”
Regulators retain some power
The ruling that struck down Chevron deference does not affect all decisions by federal agencies – particularly in matters such as expertise on the safety of consumer goods.
Zieve said that the ruling does not address the Food and Drug Administration’s determination of a drug’s effectiveness or the Department of Transportation’s decision on the safety standard for a particular airbag.
“It doesn’t deal with those types of expert decisions,” Zieve said.
However, she said, “in less specific areas of expertise,” such as issuing regulations on how to implement a statute for air quality standards, the power in those determinations now goes to the judges.
“It’s easier now for them to impose their policy preferences rather than having the agencies do that,” she said.
To some extent, because of uneven application of Chevron deference in recent years in different courts, the new ruling may not amount to a seismic shift in the decisions they make.
“In some courts,” Zieve said, “like the federal court in DC, the judges will apply Chevron deference regularly. But in other courts, like in Texas 5th Circuit, the judges haven’t been using Chevron deference anyway.”
Rather, she said, “the judges are just holding regularly that the agency was wrong.”
Snyder said that as judges signal whether or not they will defer to agency recommendations, lawyers may ramp up the process of forum-shopping, or selecting courts that may be more amenable to accepting agency interpretations.
Snyder described forum-shopping as “a tried-and-true litigation strategy.”
One possible remedy: Drafting clear legislation
Congress can intervene as well.
In addition to passing legislation to restore the Chevron doctrine, legislators can specify, in individual statutes, that federal regulators have the power to interpret the law.
““Congress has never had to legislate with this in mind before. They’ll have to adapt.”
– Allison Zieve, director, litigation group, Public Citizen
“I think one thing Congress can do, going forward, is to be as specific as it can about the decisions that it expects can be made at the agency level,” Zieve said.
“Congress has never had to legislate with this in mind before. They’ll have to adapt.”
Until that happens, Snyder, for one, looks forward to the fresh challenge.
“From the public interest bar, it’s somewhat exciting,” he said. “A new opportunity – the Supreme Court basically wiped Chevron from the slate, and we have a clean slate now.
“Who knows what’s going to happen?”
Some legal analysts have suggested that the Supreme Court, having made such a drastic shift in its approach, may give agencies more leeway as new cases challenge the ruling.
As to whether that outcome is likely, the jury is out. While Snyder said that new cases may chip away at the decision, Zieve is less optimistic.
“I don’t see any chance of the Supreme Court walking back in the future. The decision was very clear,” Zieve said.
“I’m quoting from the Court: ‘Chevron is overruled.’ ”
