WASHINGTON ― The headlines in the wake of the U.S. Supreme Court decision in Loper Bright Enterprises vs. Raimondo were unequivocal: The Chevon doctrine had been overturned, ending court deference to federal agency expertise in interpreting vague or ambiguous legal statutes.
Well, maybe not, according to David Hill, executive vice president for energy at the Bipartisan Policy Center. “It’s absolutely true, Chevron was overruled,” Hill said during a panel on the changing legal landscape under the Trump administration during the second day of the American Council on Renewable Energy’s Policy Forum on Feb. 27. “But it’s worth actually thinking about what was the Chevron decision, and what were the courts and the agencies actually doing … and what did the court in Loper Bright … actually say?”
Hill and others on the panel spent an hour trying to untangle the legalities, or lack thereof, in the onslaught of executive orders and actions unleashed in the six weeks since President Donald Trump was inaugurated, along with the impact of major court decisions like Loper Bright.
Going back to the original Chevron doctrine, Hill said, the decision to defer to agency expertise in interpreting a statute was supposed to be a two-step process in which the courts first had to determine whether a statute was ambiguous or “clear on its face.” Part of the problem with Chevron was how it was applied, he said.
“The courts would be all over the board with it. There were judges in individual cases that would disagree about whether or not a statute was clear or ambiguous,” Hill said, which complicated the second step of deciding whether an agency’s interpretation should be deferred to.
Once again, the courts decided if an agency’s interpretation was permissible and reasonable. Under Loper Bright, courts no longer can give “binding deference” to agencies, he said. What they can do is “give the agency very great respect, due respect. They can consider it highly persuasive, especially informative, [give it] most respectful consideration, great weight. So, what’s the difference between that and some pretty great amounts of deference?”
As the lower courts ruled on how to apply deference under Chevron, they also likely will “decide how much Loper Bright actually changed the real law,” Hill said. “Now they can’t say … ‘we’re just stuck with what the agency said,’ but they can give a lot of weight to what the agencies did, and I think they will on some of the really technical, statutory interpretations.”
Cary Coglianese, director of the Penn Program on Regulation at the University of Pennsylvania’s Carey Law School, generally agreed with Hill’s interpretation of Loper Bright, but said the ruling likely would have symbolic impacts. Beyond the court overturning a 40-year-old precedent, “you have to also think about Loper Bright in the context of a larger Supreme Court that’s deeply skeptical of administrative power,” he said.
Coglianese pointed to other recent cases, such as West Virginia vs. EPA, which raised the “major question doctrine demanding greater clarity whenever agencies are to use statutes to do something important, like regulating to protect against climate change.”
Future cases may be “a little less about how Loper Bright is actually written and what it says, but more [about] what it actually means to be part of a larger, shifting legal landscape,” he said. “And quite frankly, we can’t discount at all the administrative and political landscape that’s shifting as well.”
Is the Endangerment Finding Safe?
Speaking from the legislative side, Ana Unruh Cohen, Democratic staff director for the House Natural Resources Committee, said individual lawmakers “always aspire to write a very clear and direct … piece of legislation, and then things get negotiated; things change.”
Certainly, as representatives move new bills, they are focused on ensuring their language is clear, Unruh Cohen said. Similarly, Hill said, agency staff writing regulations will have to think carefully about building a well-argued paper trail to validate their interpretation of statutes without relying on Chevron.
Could Loper Bright also be used to advance further deregulation, such as a rollback of EPA’s 2009 endangerment finding, which allowed the agency to regulate greenhouse gas emissions under the Clean Air Act?
Unruh Cohen noted that the Supreme Court has not overturned the endangerment finding in the past, even when it had the opportunity to do so, but Coglianese again pointed to the shifting legal and administrative landscape. “Maybe this current Supreme Court would be willing,” he said. “If they’re willing to go back and overrule Chevron, if they’re willing to go back and overrule Roe v. Wade,” is the endangerment finding really safe?
“Maybe they would be happy to say, yeah … we now accept that EPA under the Trump administration has a better reading of the Clean Air Act that says it never authorized regulating greenhouse gas emissions.”
Coglianese and Unruh Cohen both expect that any approach to overturning the endangerment finding would have to be done on statutory grounds rather than a full-on attack on climate science. Congressional Republicans have shifted their approach from one that questions climate science itself to one that asks which policies can best address the issue, Unruh Cohen said.
Coming at it from a statutory perspective starts from the “question of whether we have the statutory authority in the first place to do this,” Coglianese said. “Then, quite frankly, none of that technical information really matters.”
Coglianese also laid out the statutory and constitutional issues related to Trump’s funding pause. “One has to ask the people who are issuing these directives, do they have statutory authority? Second, are they acting in a manner that is not arbitrary? …
“Then there’s these constitutional questions about whether it’s consistent with our separation of powers. Whether it’s consistent with the spending clause of the United States Constitution for the executive branch on its own to simply decide what we want to spend money on or not, even though Congress has approved and told the administration to carry out the spending.”
The catch, he said, is the pacing and timing problem: “Those who control the computers are able to block funding, and there’s not a lot of transparency around that. The courts are being much more deliberative and trying to figure out what’s going on.”
