Roaming Dogs Get Their Fence
Your preference on (Chevron) deference depends on your frame of reference.
"Power tends to corrupt, and absolute power corrupts absolutely". - Lord Acton
One of our favorite internet legends about American environmental regulatory overreach dates back to 1997. When we first read the story, we were sure it was fake. Snopes, who rates it as “True,” summarizes the attempted enforcement action against a Michigan landowner as follows:
In July 1997, one of Stephen Tvedten's neighbors noticed flooding on his property and traced it back to a dam on Tvedten's stream. The neighbor complained to the Michigan Department of Environmental Quality (DEQ) on 28 July 1997, and five months later the agency responded with a letter to the offending landowner. The letter, from David Price, a local Michigan DEQ official, was blunt: The "construction and maintenance of two wood debris dams across the outlet stream of Spring Pond" was "unauthorized" because "a permit must be issued prior to the start of this type of activity." The letter ordered Stephen Tvedten, the landowner, to "cease and desist" under penalty of "elevated enforcement action.”
Mr. Tvedten’s cleverly written response became an instant internet legend. We have yet to find a more entertaining use of homophones (“dam” and “damn”) to tell off an environmental regulator who deserved it (and doubt we ever will). For the unfamiliar, we won’t spoil it (link here), but tease you with an excerpt of Tvedten’s response the Michigan DEQ:
I am the legal owner and a couple of beavers are in the (State unauthorized) process of constructing and maintaining two wood "debris" dams across the outlet stream of my Spring Pond. While I did not pay for, nor authorize, their dam project, I think they would be highly offended you call their skillful use of natural building materials "debris." I would like to challenge you to attempt to emulate their dam project any dam time and/or any dam place you choose. I believe I can safely state there is no dam way you could ever match their dam skills, their dam resourcefulness, their dam ingenuity, their dam persistence, their dam determination, and/or their dam work ethic.
Such is the absurdity of the current administrative state. It is demonstrably not limited to the federal government.
In the years between the Great Depression and World War II, Roosevelt’s New Deal expanded government into ever more areas of American life, creating more federal agencies with increasing power to intrude into all manner of private activity. The growing administrative state was the cause of enough concern that in 1946 Congress passed the Administrative Procedures Act (APA). Last month, the APA played a critical role in the Supreme Court’s decision to set aside a forty-year precedent-setting legal doctrine.
That ruling puts legal brakes on overreach by federal agencies, which has significant implications for U.S. Environmental Protection Agency (EPA).
Among other characteristics, the present Supreme Court has shown a willingness to do two things. The first is to challenge the long-standing doctrine of “stare decisis” which, simplified, means to “stand by things decided,” cautioning that long-standing rulings should be left alone (e.g., Roe v. Wade). And the second is to reign in the Administrative State.
So, it was not a complete surprise when the Supreme Court did both, ruling along ideological lines in a 6-3 vote to throw out a forty-year standing legal doctrine. What is the “Chevron doctrine”? What did the Supreme Court find in “Loper Bright Enterprises v. Raimondo”? And what are the implications as respects EPA?
We begin with a brief overview of the “Chevron doctrine.” Since the 1980s, courts have evaluated agencies’ interpretations of statutes deferentially under the doctrine, named after the 1984 case from which it emerged. In that case, the Natural Resourced Defense Council (NDRC) sued EPA over its interpretation of the Clean Air Act (CAA) in relation to stationary sources of regulated emissions (not CO2). The Supreme Court ruled in favor of EPA, deferring to its reasonable statutory interpretation, giving rise to the common description of the legal doctrine “Chevron deference.”
In Chevron v. NRDC, the Supreme Court set up a two-part test. Under the first part, the Court decides whether the statutory language clearly delegates Congress’ authority to the agency. If so, the agency’s interpretation prevails, and the question is ended. If not, the Court determines whether the agency’s interpretation is reasonable (“permissible”) and, if so, the Court must defer to the agency’s interpretation, even if the Court would come to a different conclusion using its traditional tools of statutory construction.
The petitioners in the recent case are two fishing businesses, Loper Bright Enterprises and Relentless Industries. The Supreme Court consolidated the cases because they both presented the same legal question regarding the Chevron doctrine.
The federal statute at issue was the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act, or MSA). The MSA authorizes the National Marine Fisheries Service (NMFS, a federal agency within the U.S. Department of Commerce’s National Oceanic and Atmospheric Administration, or NOAA) to require that certain vessels carry – and pay for - observers to enforce the Service’s regulations.
But the MSA only specifies that U.S. vessels must pay for those observers in two articulated circumstances a) harvest in the Pacific Northwest (not at issue in this case), or b) or harvest with specific quantity limits. The payments are capped at 2% of the former and 3% of the latter.
The agency actions leading to this case occurred in 2020. That’s when the NMFS promulgated a rule requiring Atlantic herring fishing vessels to pay for observers with no payment cap. Effectively, NMFS took it upon itself to decide that the statutory authority granted by Congress under the MSA in specific areas could be applied to others Congress had not explicitly authorized. Loper and Relentless sued, arguing that the statue did not give the agency the power to require them to pay for observers.
In both cases, for a variety of reasons, the lower courts upheld the agency’s interpretation, deferring under the Chevron doctrine. That brought the cases to the Supreme Court.
On June 28th, the Supreme Court overruled the Chevron doctrine. In the majority opinion, written by Chief Justice John Roberts, the Court ruled that the doctrine violates the APA, which says that Courts shall decide all relevant questions of law and interpret Constitutional and statutory provisions, not agencies. The majority noted that the courts have carefully considered agencies’ views on the meaning of laws without giving them deference as to actual legal interpretation (and, as such force of law), under another legal doctrine known as Skidmore deference.
The Court said that the Chevron doctrine could not be squared with the APA and, as such, that it was bad law from the start. It noted that agency expertise and preferences can and should inform the Court’s decision, and that under Skidmore the Court will give that expertise appropriate weight. But it rejected the argument that such subject matter expertise requires deference to agency interpretation of statutes.
In the Loper decision this Court once again took on the “guardrail” principal of stare decisis. The Court said that stare decisis could not save Chevron because the doctrine was wrong from the start. As Roberts noted in the majority opinion (emphasis added):
“It reshaped judicial review of agency action without grappling with the APA, the statute that lays out how such review works. Chevron defies the command of the APA that ‘the reviewing court’—not the agency whose action it reviews—is to ‘decide all relevant questions of law’ and ‘interpret . . . statutory provisions.”
Finally, the majority noted that Chevron was unworkable. Due to its defining feature - identifying statutory ambiguity - the Court has been forced to clarify and tinker with it repeatedly. The majority opined this has only exacerbated its ambiguity and unworkability, and fostered conditions contrary to the type of stability on which parties before the Court rely to produce readily foreseeable outcomes.
However, the Court noted that its decision to overrule Chevron “does not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite the Court’s change in interpretive methodology.”
Justice Kagan wrote the dissent for the minority. She argued Chevron is proper, and that Congress implicitly empowers agencies to fill in statutory gaps, which are inevitable as a practical matter (editor’s note: it is fair to question how much of this is intentional, lazy, ignorant, or malevolent). Kagan also argued that the APA itself is unclear about judicial deference to agencies. Her opinion rightly notes that if Congress had wanted to fix Chevron due to concerns with regulatory overreach, it has had every opportunity to do so. Finally, in her dissent Kagan takes strong issue with this Court’s roughshod treatment of stare decisis, in this case as well as in other decisions it has rendered since 2016.
The implications of the Supreme Court’s Loper decision are both doctrinal and practical. As a legal doctrine, Chevron is gone. More broadly, the decision signals that the Court is doctrinally unafraid to reign in the power of Administrative Statism, in this case drawing a line in the sand that stops agencies from becoming de facto lawmakers by virtue of their interpretations of ambiguous statutes. The Loper decision stops forty years of the Chevron doctrine sanctioning agency mission creep by putting statutory interpretation squarely back in the hands of the judiciary.
In terms of the practical applications for environmental and energy policy, the Left and the Right are jumping up and down over the Loper ruling for opposing reasons. Libertarians and Conservatives rejoiced, generally feeling the Chevron doctrine was a court sanctioned legal cover for EPA EcoStatism™ run amok, an invitation for the agency to aggressively interpret statutes in its own self-interest, and for Congress to avoid doing its job.
EPA actions have provided no shortage of granular examples supporting this view. As one example, puddles in your backyard will not be as easy for EPA to declare “Waters of the United States” under the Clean Water Act, thereby prohibiting the freedom to use your property as you see fit. After Loper, agencies like EPA will now have less incentive to overreach and face a higher hurdle attempting to do so.
Any ruling from this (read: conservative) Supreme Court that cuts into the State’s ability to tighten the noose around energy use, industrialization, consumption, capitalism, and free markets in the name of saving the planet and humanity is bound to result in shrieks that the sky is falling. As usual, our environmentalist non-profit friends and those in the legacy media did not disappoint in their response to the Loper decision (examples here, here and here).
Loper means Congress will actually have to do its job, write laws with greater precision, and make delegations of authority to agencies (including what is clearly outside that delegation) more explicit in the statutes. EPA will have to work harder to make their case, and in a manner consistent with tools of statutory interpretation, not an administration’s predilections. And the Courts will still defer to EPA’s expertise under the long-standing Skidmore doctrine, but the judiciary will have the final say in matters involving statutory interpretation.
In our view, the Loper Court got it right. We are a nation governed by the rule of law, not the whim of elected officials or unelected heads of federal agencies. If those officials, agency heads and/or the public do not like the outcome of those laws, they have the tools necessary to change them.
The Constitution and the APA clearly and unequivocally place the job of interpreting laws in the sole domain of the judiciary, not in the hands of elected officials or unelected bureaucrats. As a matter of law, Courts interprets statutes, not agencies.
In reality, Chevron is and has been, like other areas where the law intersects with environmental, energy and economic policy: put simply, your preference on deference depends on your frame of reference (point of view). Consider the following:
A 5-4 liberal Court ruled that the Army Corps of Engineers was not entitled to Chevron deference in its 2006 ruling that the Corps had overstepped its authority defining “navigable waters of the U.S.” in Rapanos v. U.S. Red team cheers, blue team screams.
A 5-4 liberal Court effectively ignored Chevron deference (see Justice Scalia’s dissent) when it was convenient, ruling along ideological lines that EPA could not defer making a determination whether CO2 constitutes an air pollutant under the Clean Air Act in Massachusetts v. EPA (2007). Blue team celebrates, red team howls.
The current 6-3 Loper Court in 2024 overrules Chevron altogether. Red team ecstatic, blue team despondent.
Substack writer Oliver Bateman wisely noted “We must ensure that in our quest to rein in unaccountable bureaucrats, we don't simply empower unaccountable judges.” We concur, but unfortunately that is not where the problem ends.
We close by noting the real conundrum that is the true elephant in the room here: which branch of government holds the ultimate power over these sorts of energy and environmental legal issues likely matters little if all three branches are terminally infected with neo-Malthusian or EcoStatist™ ideology (or worse, both).
Eliminating EPA’s authority to interpret statutes and putting that power squarely back in the hands of Congress is not a panacea to bad legislation if the Congress and the agency are cut from the same rotten ideological cloth. A conservative Supreme Court is powerless against bad laws passed by a Congress devoid of any understanding of physics, environmental science, and economics as long as those laws are within the confines of the Constitution.
Loper will not stop EPA from attempting to overreach its authority under “progressive” administrations. Or stop a “progressive” Congress from passing environmental and energy-related laws that constrain the economy and free markets, reduce living standards, and reduce or eliminate affordable, abundant, on demand energy. Or, ironically, stop future “progressive” Supreme Courts from someday overturning Loper, despite the very stare decisis doctrine over which the minority scathes the majority in its dissent.
So, in the wake of Loper, you are going to have to trust Marjorie Taylor Greene and Alexandria Ocasio-Cortez to write smarter, more precise environmental and energy laws. And trust Mitch McConnell and Nancy Pelosi to put their best intellectual efforts into reconciling MTG’s and AOC’s smarter, more precise work. And trust this 6-3 conservative Court – or a future 6-3 “progressive” Court (or maybe a 9-3 leftist Court?) to interpret those laws as cases and controversies arise. And how could that not work out better than EPA’s “Clean Power Plan” or “Waters of the U.S.” ruling?
Roaming dog federal agencies got a fence. But if you want all the dogs to stay in the fence, you are going to need to maintain it.
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Excellent work. Your fears are extremely valid. The apathy of the general public will continue until the lights are turned off. Fortunately people like you are making an effort to educate and inform them. Too bad their biggest worry is how much is gas, the drive thru was busy, when does the game start….. so frustrating
Excellent, thorough yet succinct, explanations.
As has been the case for a hundreds years, give or take, the federal government, and increasingly state governments, have become behemoths too big to succeed.
I know voting for and commenting about and writing to various congress critters does little these days but put one on "a list", but any candidate who runs on a "program to fix", an "agency to secure" versus the wholesale reduction of government is not for the people, and will never get my support.