COMMENTARY | Hubris Squared: What the End of Chevron Means

Tim Whitehouse

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Hubris Squared: What the End of Chevron Means

Last week, the Supreme Court significantly limited government agencies’ ability to interpret and implement federal laws protecting public health and the environment.

In Loper Bright Enterprises v. Raimondo, the Supreme Court overturned its 1984 decision in Chevron v. NRDC on how courts should evaluate the legality of an agency’s interpretation of a federal statute. In Chevron, the Supreme Court held that if a court found the statutory language ambiguous, the court had to defer to the agency’s interpretation if that interpretation was reasonable, even if the court might have ruled differently based on its own interpretation.

The idea behind this judicial deference was that agencies have subject-matter expertise and are accountable to an elected president, while judges are not experts in scientific and technical fields and are not part of either political branch of the government. It also acknowledged the reality that Congress cannot write every conceivable detail and contingency into law and that agencies have a legitimate and crucial role to play in filling the gaps.

Justice Roberts, writing for the 6-3 majority, overturned the Chevron decision, giving the judges the power to enforce their own interpretations when statutory language is ambiguous, even when those interpretations contradict those that the agency had used based on its scientific and technical expertise. The Court found that Chevron “required judges to disregard their statutory duties.” It held that federal agencies are “not entitled to deference” and that courts, not agencies, have “special competence in resolving statutory ambiguities.”

Under Loper, federal courts are now directed to “exercise their independent judgment in deciding whether an agency has acted within its statutory authority” and “may not defer to an agency interpretation of the law simply because a statute is ambiguous.”  The Court’s ruling leaves the door open to some forms of deference by holding that an agency’s interpretation may “help inform” a court’s inquiry.

In a scathing dissent, Justice Elana Kagan noted that the Chevron holding has been used to decide thousands of cases and that now it is the courts rather than the agency “that will wield power when Congress has left an area of interpretive discretion.”

“If opinions had titles, a good candidate for today’s would be Hubris Squared,”  Justice Kagan added.

Saying abstract analysis can only go so far, Justice Kagan gave five real-world examples of how Chevron has been used in actual decisions and the absurdity of a court, rather than government experts, deciding the meaning of the terms.

  1. Under the Public Health Service Act, the Food and Drug Administration (FDA) regulates “biological product[s],” including “protein[s].”
  2. Under the Endangered Species Act, the Fish and Wildlife Service must designate endangered “vertebrate fish or wildlife” species, including “distinct population segment[s]” of those species.
  3. Under the Medicare program, reimbursements to hospitals are adjusted to reflect “differences in hospital wage levels” across “geographic area[s].”
  4. Congress directed the Department of the Interior and the Federal Aviation Administration to reduce noise from aircraft flying over Grand Canyon National Park—specifically, to “provide for substantial restoration of the natural quiet.”
  5. In amendments to the Clean Air Act, Congress told States to require permits for modifying or constructing “stationary sources” of air pollution.

In each of these cases, the courts relied on reasonable agency interpretations of statutory language to implement these laws. Justice Kagan notes that the Loper decision puts judges at the “apex of the administrative process” by giving the courts new powers to make these scientific and technical judgments, including how to weigh competing goals and values.

Given the stark ideological divides in our judicial system, it won’t be long before the full effect of the decision is felt around the country. One concern is there will be a flood of lawsuits as industry seeks to challenge agency actions in areas such as workers’ rights, the environment, and health care. This may make agencies more reluctant to take actions to protect workers, the environment and public health. Another concern is that interpretations of statutes will now become far less consistent, based on individual courts’ views on government regulation generally as well as on the matter at hand.

Congress and President Biden must determine how to react to the Court’s decision. It won’t be easy. What is clear, however, is that the Court’s power grab lays bare the importance of civil society and elected officials finding ways to rebalance the relationships between the three branches of government and to support the ability of federal agencies to effectively implement federal laws.

Tim Whitehouse, Executive Director of PEER Tim Whitehouse is the Executive Director at PEER.

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