The U.S. Supreme Court is consistently making media headlines with controversial legal opinions. Most recently, on June 28, 2024, the Supreme Court released an opinion that dismantled Chevron deference—a legal principle of administrative law that has been relied on for forty years—leaving the country to grapple with the uncertainty of what comes next. We hope this blog can help shed some light on what Chevron was, why it was created, and how environmental advocates may be able to fill the gaps left in its place.
Background: What is Chevron?
Chevron refers to Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., a landmark case decided by the U.S. Supreme Court in 1984. The case established "Chevron deference," a principle of administrative law that compelled courts to defer to a federal agency's interpretation of ambiguous laws that the agency administers. The courts were only required to give agencies deference when the following two conditions were met:
The court found that the statute in question is ambiguous.
The court found that the agency's interpretation is reasonable.
While the landmark case, Chevron, was created in response to an environmental question regarding how to interpret a specific provision within the Clean Air Act, the application of Chevron deference was expansive. Chevron deference has been applied to all U.S. agencies, impacting court cases, and the legislative drafting process of issues related to immigration, taxes, education, national security, agriculture, and more.
As Justice Kagan acknowledges in her dissent, the decision to overturn Chevron “will cause a massive shock to the legal system, “cast[ing] doubt on many settled constructions” of statutes and threatening the interests of many parties who have relied on them for years.”
Background: Why did we rely on Chevron for so long?
Chevron deference became a guiding principle of administrative law for several reasons:
Agency Expertise: Agencies possess specialized knowledge and expertise in their respective fields, making them better suited to interpret complex and technical statutes. Below are some examples that Justice Kagan cited in the dissent, displaying when Chevron deference was applied to questions that implicated the need for such “specialized knowledge” from agencies:
What makes one population segment “distinct” from another? Must the [Fish and Wildlife] Service treat the Washington State population of western gray squirrels as “distinct” because it is geographically separated from other western gray squirrels? See Northwest Ecosystem Alliance v. United States Fish and Wildlife Serv., 475 F. 3d 1136, 1140–1145, 1149 (CA9 2007).
When does an alpha amino acid polymer qualify as such a “protein”? Must it have a specific, defined sequence of amino acids? See Teva Pharmaceuticals USA, Inc. v. FDA, 514 F. Supp. 3d 66, 79–80, 93–106 (DC 2020).
Does the term “stationary source[]” refer to each pollution-emitting piece of equipment within a plant? Or does it refer to the entire plant, and thus allow escape from the permitting requirement when increased emissions from one piece of equipment are offset by reductions from another? See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 857, 869 (1984).
Efficiency for Courts: Allowing agencies to interpret ambiguous statutes helped streamline the regulatory process and reduce the burden on courts.
Consistency: Chevron promoted consistent regulatory policies by allowing agencies to implement and interpret laws uniformly across different jurisdictions, as opposed to courts issuing contradictory opinions across jurisdictions. The Court has acknowledged the trade-off for jurisdictional consistency is that agencies’ implementation of laws may change under different executive administrations. However, it is arguable that this was a beneficial process that provided people the ability to indirectly influence agency action by participating in Presidential Elections; this stands in stark contrast to the power residing to the federal courts, who are appointed for life and isolated from the will of the people.
Separation of Powers: Chevron deference respected the separation of powers by recognizing the role of executive agencies in executing laws, as opposed to judicial overreach in policy decisions. Chevron deference acknowledged that Congress charged agencies with administering law, thus granting agencies, not courts, primary authority over regulatory matters.
Overview: What does the fall of Chevron mean for environmental justice advocacy?
The U.S. Supreme Court overturned Chevron and stated “agencies have no special competence in resolving statutory ambiguities. Courts do.” In doing so, the Court has rejected judicial modesty and declared themselves best suited to rule on all scientific and technical administrative questions that may come before their court. To be clear, the new norm will still allow agencies to attempt to persuade judges in court of their legal arguments, but the judges still have absolute discretion over whether or not the agencies deserve deference, and how much weight should be afforded to the agencies’ arguments (this is called Skidmore deference). This shift in power from agencies to courts will have significant implications for environmental justice advocacy:
Policy Uncertainty: With less deference to agencies, there will be even greater uncertainty in environmental regulations, complicating advocacy efforts and long-term planning.
Increased Judicial Involvement: Courts will play a more significant role in interpreting environmental laws, potentially leading to less predictable and more varied rulings across judicial jurisdictions.
Potential for Slower Regulatory Action: Agencies will likely face more challenges in implementing new regulations, potentially slowing down the pace of environmental protection measures.
Impact on Communities: Communities that rely on strong regulatory frameworks to protect their environment and health might face greater challenges in securing consistent and effective enforcement of environmental laws.
Overview: What are some potential next steps for environmental justice advocates in the Appalachian Basin?
In a dream world, it would be great if our legislators could predict all current and future needs to expressly include in statutes. However, as Justice Kagan acknowledges in her dissent—this is nearly impossible and there will “always be gaps and ambiguities in regulatory statutes,” and often they will be of great importance. It is vital that environmental justice advocates collectively work together to ensure (1) more regulatory precautions are expressly included in statute and (2) work with legislators to ensure statutes expressly grant agencies authority to craft regulatory provisions for implementing statutes.
Pressure Congress to Amend the Administrative Procedure Act (APA): The U.S. Supreme Court overturned Chevron because the majority found the APA did not authorize agencies to decide relevant questions or interpret statutory decisions. Amending the APA to expressly grant agencies deference may shift the power away from courts and back to agencies.
Similarly, Pressure State Legislatures to Ensure State Agencies Have Deference in State Law: While the overturn of Chevron directly affects federal agencies and federal regulations, most state environmental law are recreations of federal environmental laws. Legal challenges can cause a Dominoe effect and the erasure of environmental protections at both the federal and state level. To prevent as such, pressure state legislatures to ensure state laws expressly provide state agencies with deference for regulatory rulemaking for implementation of statutes.
Identify Which Environmental Protections Are Most Important to Your Community: Take time to think about which environmental protections keep your community safe and ask whether this protection is expressly stated in statute or regulation? Work with community lawyers, your legislators, and advocates to ensure that it is properly codified in statute and not at risk of post-Chevron legal challenges.
Collective Actions: As always, legal and policy strategy cannot be successful on their own. We encourage communities to find unique ways to organize collective actions and pressure all three branches of government accountable for environmental justice initiatives.
If you are in need of support to organize any environmental justice efforts, call Fair Shake and we will connect you with our Community Democracy Program. We offer resources and technical assistance to community-led environmental justice efforts—we are in this fight with you.
