#Chevron v. Natural Resources Defense Council

[gwydionmisha]

This is so dangerous.

[dontmeantobepoliticalbut]

The Supreme Court agreed Monday to consider overturning a nearly 40-year precedent by taking up a challenge to a regulation affecting fishing vessels in a case that is the latest conservative-led attack on federal bureaucracy.

The court will weigh whether to overturn a much-cited 1984 ruling, Chevron v. Natural Resources Defense Council, which said courts should defer to federal agencies in interpreting the law when the language of a statute is ambiguous.

Attempts to overturn the ruling, which the court has rarely invoked in recent years, is just one avenue of attack by conservative groups and business interests as part of what has been dubbed “the war on the administrative state.”

"The Supreme Court has an opportunity to correct one of the most consequential judicial errors in a generation," said Ryan Mulvey, a lawyer at the Cause of Action Institute, a conservative group that represents the challengers. The Chevron ruling "has proven corrosive to the American system of checks and balances and directly contributed to an unaccountable executive branch."

The Supreme Court, which has a 6-3 conservative majority, is skeptical of broad assertions of federal agency power.

The case itself is a challenge to a government regulation that requires fishing vessels to help fund the collection of scientific data to assist with fishery conservation and management. The court could still rule in favor of the challengers by limiting the scope of the Chevron decision without overturning it entirely.

The court took up an appeal brought by Loper Bright Enterprises and several other operators of fishing vessels that are active in the herring fishery off the Atlantic coast, which challenged the 2020 rule applying to New England fisheries.

The challengers say the National Marine Fisheries Service, the federal body that oversees ocean resources, did not have authority to issue the regulation under the relevant law, the 1976 Magnuson-Stevens Fishery Conservation and Management Act.

The rule implements a monitoring program that vessel operators are required to fund. As the challengers put it, operators have to pay up to $710 a day at certain times for independent observers to board their vessels and monitor their operations. The cost is a significant burden on small owner-operators, the challengers say.

The case, backed by conservative groups, is the latest attempt to undermine the power of federal agencies. Lawyers for the fishing vessel operators say a lower court that upheld the rule gave too much deference to the federal agency in interpreting the 1976 law.

The U.S. Circuit Court of Appeals for the District of Columbia rejected the vessel operators' claims in a decision in August, upholding a similar ruling a federal district judge issued the previous year.

The brief Supreme Court order noted that liberal Justice Ketanji Brown Jackson is not participating in the case. She was originally part of the appeals court panel that decided the case before President Joe Biden appointed her to the high court. She heard oral arguments but was not involved in the ruling itself.

[demontruth]

It's very important everyone in the US paid attention to these cases SCOTUS hearing testimony on right now. It about Chevron v. Natural Resources Defense Council. Which was about giving the government the right to set regulations by regulatory agencies within the government that understand more about the difference fields. Like CDC, EPA, FAA, OSHA, FTC, FDA, FDIC, etc. Just think of any regulator body in US. Now thanks to case of Chevron back in 1984 we have regulations that for the most part keep us safe. What SCOTUS wants to do now or the conservative justices on the court want to do is overturned it like they did with Roe v Wade. That would mean all those safe guards and agencies would no longer have the power they did. Just stop think about that for a moment. Our money in banks wouldn't be protected, the food on our tables would no longer be inspected, if there was another pandemic CDC couldn't issue regulations.

The reason behind SCOTUS, conservative politicians and Republicans wanting it overturned isn't that there's anything wrong with it. No it's all to do with money and power!! If they overturned its more money in their pockets and them allowing the companies and corporations to regulate themselves. It's all true. Just Google SCOTUS Chevron v. Natural Resources Defense Council. Please call your Congress person and Senator demand they pressure SCOTUS not to overturn Chevron!! It's horrible enough SCOTUS overturned Roe v Wade don't allow the overly conservative justices to do this to us also!!

[robertreich]

Corporations Have Been Salivating Over This SCOTUS Decision 

The Supreme Court seems to have no problem regulating women’s bodies. But when it comes to regulating big business, they may be ready to end 40 years of established law. Let me explain.

The Court is hearing a pair of cases that could upend federal regulations designed to protect us. At risk is the Biden Administration’s entire climate agenda, the power of the government to approve and regulate drugs, and even the safety and quality of the food we eat, the water we drink, and the air we breathe.

And big corporations are salivating for a ruling that goes their way.

So what’s putting all of this at risk? It’s a challenge to something known as the “Chevron” Doctrine, a legal precedent established by the Supreme Court’s ruling in the 1984 case Chevron v. Natural Resources Defense Council. That case held that whenever any regulation in a law is unclear, it should be the federal agencies, not the courts, that interpret and implement it. This makes sense because unlike courts, federal agencies are staffed with scientists, researchers, and engineers — actual experts in the fields they’re regulating.

But now, a pair of Supreme Court cases challenging the doctrine could shift this power to the courts, stripping federal agencies of this key role of interpreting and implementing our nation’s laws.

If non-expert courts become the sole interpreters of the nation’s laws, a single activist judge, carefully selected by plaintiffs, could invalidate all the regulations of a federal agency charged with protecting the public.

No wonder the big banks, fossil fuel companies, and pharmaceutical giants, who hate the power of federal agencies to limit their profits, have been trying for years to end the Chevron Doctrine. And this time, they think they have the votes on the Supreme Court to do it.

If agencies are stripped of their power to regulate, the big losers will be the American public. We need real experts tackling today’s complicated problems, not judges who think they know better.

We also need to see the potential fall of the Chevron Doctrine for what it is: a power grab by corporate interests, allowing them to shop for judges who will strip agencies of their power to protect the public.

[azspot]

It has been nearly 40 years since the Supreme Court indicated in Chevron v. Natural Resources Defense Council that courts should defer to an agency’s reasonable interpretation of an ambiguous statute. After more than three-and-a-half hours of oral argument on Wednesday, it seemed unlikely that the rule outlined in that case, known as the Chevron doctrine, will survive in its current form. A majority of the justices seemed ready to jettison the doctrine or at the very least significantly limit it.

The court’s ruling could have ripple effects across the federal government, where agencies frequently use highly trained experts to interpret and implement federal laws. Although the doctrine was relatively noncontroversial when it was first introduced in 1984, in recent years conservatives – including some members of the Supreme Court – have called for it to be overruled.

The plea to overturn the Chevron doctrine came to the court in two cases challenging a rule, issued by the National Marine Fisheries Service, that requires the herring industry to bear the costs of observers on fishing boats. Applying Chevron, both the U.S. Court of Appeals for the District of Columbia Circuit and the U.S. Court of Appeals for the 1st Circuit upheld the rule, finding it to be a reasonable interpretation of federal law.

The fishing companies came to the Supreme Court, asking the justices to weigh in on the rule itself but also to overrule Chevron. Roman Martinez, representing one group of fishing vessels, told the justices that the Chevron doctrine undermines the duty of courts to say what the law is and violates the federal law governing administrative agencies, which similarly requires courts to undertake a fresh review of legal questions. Under the Chevron doctrine, he observed, even if all nine Supreme Court justices agree that the fishing vessels’ interpretation of federal fishing law is better than the NMFS’s interpretation, they would still be required to defer to the agency’s interpretation as long as it was reasonable. Such a result, Martinez concluded, is “not consistent with the rule of law.”

[beardedmrbean]

The Supreme Court will consider overturning a high stakes case that could elevate businesses to an equal playing field as their regulatory agencies, but one justice won't be present for the decision.

On Monday, the Court agreed to reconsider its ruling in Chevron v. Natural Resources Defense Council. The ruling in Chevron defers to a federal agency's interpretation of an ambiguous statute given that the interpretation is reasonable. The topic is again appearing before the Supreme Court after Loper Bright Enterprises, a New England fishing company, sued National Marine Fisheries Service, its regulating agency, after the agency decided that the fishing company must pay for a monitor staffed onboard to ensure the fishing company follows federal regulations.

Loper Bright Enterprises sued last year, saying that there was no statute that clearly stated the fishing company must pay for the monitor. A Washington, D.C., Circuit Court of Appeals ruled in the National Marine Fisheries Service's favor, citing Chevron, but one judge dissented.

Administrative law has long been contested among conservatives and liberals. In the case of Chevron, conservatives aim to limit the power of federal agencies whereas liberals argue that Chevron is necessary for the administrative state. The conflicting beliefs are expected to come to a head when the Court reconsiders its ruling on Chevron in the fall, with a ruling likely coming in 2024. However, Justice Ketanji Brown Jackson—one of only three liberals on the nine-justice Court and the Court's newest justice—won't be voting in the ruling, a decision that has some people questioning the reason behind her recusal.

Why Did Jackson Recuse Herself?

Jackson recused herself because she was part of the circuit court that first heard the case. She did not rule on the case, as she was appointed to the Supreme Court before the ruling and the judge's dissent last year. Her recusal is prompting questions and concerns from the public, with some speculating that the Court chose this case to reconsider Chevron knowing that Jackson would recuse herself.

When a justice sits out of a decision, a replacement justice cannot be appointed. Regarding the Chevron ruling, only eight justices will deliberate.

Newsweek reached out to the Supreme Court's public information office by email for comment.

What Happens if Chevron Is Overturned?

Under the Chevron deference, if an agency's interpretation of a statute is considered reasonable, the decision lies in the agency's hands. But if overruled, the businesses regulated by agencies would be elevated to the agency's equal. The businesses would also be more likely to win in court when challenging an agency's ruling.

Criticism And Speculation on the Court Hearing the Case

Some members of the public, specifically on social media, who are critical of the overturn of Chevron said that if overruled, government would cease to exist.

_______________

You promise it will go away

[collapsedsquid]

The case, Loper Bright Enterprises v. Raimondo, is likely to be argued in the fall, with a decision to follow sometime in 2024. Justice Ketanji Brown Jackson recused herself from the case, presumably because she participated in the oral argument in the case while she was a judge on the D.C. Circuit.

Not gonna be a 6-3 court but a 6-2 court that may decide whether any environmental protection is legal.

[anarchistpoet]

State of the Empire

The term “Chevron deference” dates to the original 1984 case Chevron v. Natural Resources Defense Council. Gorsuch’s own mother was head of the Environmental Protection Agency when the NRDC sued it to block a set of industry-friendly rules that the EPA was proposing to institute. Chevron—which stood to benefit from the lax new regulations—brought a countersuit after the NRDC won the case against the EPA. An ensuing Supreme Court decision in the oil company’s favor, handed down after Neil Gorsuch’s mother had been forced to resign over unrelated matters, established what is now known as the Chevron deference, which holds that federal courts should largely defer to federal agencies’ interpretation of congressional statutes. While the initial decision was made against environmentalists, it’s since been used to uphold more stringent environmental rules, among other federal regulations, that businesses—and especially corporate polluters—dislike. Overturning it has become a prize for the right-wing legal movement.

[truck-fump]

Corporations Have Been Salivating Over This SCOTUS Decision The...

New Post has been published on https://robertreich.org/post/739785422183481344

Corporations Have Been Salivating Over This SCOTUS Decision The...

Corporations Have Been Salivating Over This SCOTUS Decision 

The Supreme Court seems to have no problem regulating women’s bodies. But when it comes to regulating big business, they may be ready to end 40 years of established law. Let me explain.

The Court is hearing a pair of cases that could upend federal regulations designed to protect us. At risk is the Biden Administration’s entire climate agenda, the power of the government to approve and regulate drugs, and even the safety and quality of the food we eat, the water we drink, and the air we breathe.

And big corporations are salivating for a ruling that goes their way.

So what’s putting all of this at risk? It’s a challenge to something known as the “Chevron” Doctrine, a legal precedent established by the Supreme Court’s ruling in the 1984 case Chevron v. Natural Resources Defense Council. That case held that whenever any regulation in a law is unclear, it should be the federal agencies, not the courts, that interpret and implement it. This makes sense because unlike courts, federal agencies are staffed with scientists, researchers, and engineers — actual experts in the fields they’re regulating.

But now, a pair of Supreme Court cases challenging the doctrine could shift this power to the courts, stripping federal agencies of this key role of interpreting and implementing our nation’s laws.

If non-expert courts become the sole interpreters of the nation’s laws, a single activist judge, carefully selected by plaintiffs, could invalidate all the regulations of a federal agency charged with protecting the public.

No wonder the big banks, fossil fuel companies, and pharmaceutical giants, who hate the power of federal agencies to limit their profits, have been trying for years to end the Chevron Doctrine. And this time, they think they have the votes on the Supreme Court to do it.

If agencies are stripped of their power to regulate, the big losers will be the American public. We need real experts tackling today’s complicated problems, not judges who think they know better.

We also need to see the potential fall of the Chevron Doctrine for what it is: a power grab by corporate interests, allowing them to shop for judges who will strip agencies of their power to protect the public.

[ailtrahq]

A US Supreme Court case has caught the interest of the crypto community, especially the XRP community, as it could significantly impact Ripple’s ongoing legal battle against the US Securities and Exchange Commission (SEC). The US Supreme Court is set to decide on whether or not to overrule the Chevron Deference Doctrine in the ongoing case of Loper Bright Enterprises v. Raimondo. How The Chevron Deference Doctrine Affects Ripple’s Case The doctrine provides that courts, in the case of ambiguity, could adopt a federal agency’s interpretation of a statute as far as it sounds plausible. This doctrine was formulated in 1984 in the case of Chevron U.S.A. v. Natural Resources Defense Council when the court reasoned that these agencies, as experts, were in a better position than the court to demystify these statutes delegated to them by Congress. As such, it is understandable why the Supreme Court’s ruling in the present Loper case is of interest to the XRP community, as the decision could determine what position the court will choose to adopt when the SEC’s case against Ripple goes to trial.  If the Chevron doctrine is overruled, the court in Ripple’s case isn’t compelled to consider the SEC’s interpretation of the Securities Act and how Ripple violated it through their XRP sales. However, suppose the Supreme Court decides to affirm the doctrine, the Judge in the case will likely have to be guided by the SEC’s interpretation, especially on areas it needs clarity. The SEC has continued to allege that all of Ripple’s XRP sales (including programmatic sales and other distributions) constituted investment contracts under the Securities Act, thereby making the XRP token a security. As such, it believes that Ripple violated the law when it failed to register XRP as a security before offering it to the public.  Many, including Ripple’s Chief Legal Officer Stuart Alderoty, have welcomed this development in the hopes that the Supreme Court will curb the excesses of these federal agencies, including the SEC.  For The Broader Crypto Industry The Supreme Court’s ruling in the Loper case will also undoubtedly affect the crypto industry, especially concerning the SEC’s continued enforcement action against the industry. Amid the lack of crypto-related laws, the SEC has swooped in and found a way to apply the Securities Act to the crypto industry.  Specifically, the SEC has continued to clamp down on crypto exchanges, alleging that they have violated the law by operating as an unregistered securities exchange. However, there is a general belief that this shouldn’t be so, as cryptocurrencies do not pass the Howey Test used to determine what can be considered security. This belief, alongside Judge Analisa Torres’ ruling, forms part of Coinbase’s argument in its motion to dismiss the SEC’s lawsuit against it. The crypto exchange argues that the SEC is acting outside its jurisdiction by bringing such an action as the exchange doesn’t offer securities.  XRP price at $0.507 | Source: XRPUSD On Tradingview.com

[technsavi]

Inventor and User Organizations Tell SCOTUS to ‘Confine’ Chevron so USPTO Can’t Escape Rulemaking Process

“The USPTO’s neglect of rulemaking procedure leads to regulatory costs that exceed $ 1 billion per year.” – USI/ PTAARMIGAN amicus brief One of the many amici who have filed briefs in a Supreme Court case asking the Court to overrule its precedent in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. told the justices last week that the United States Patent and Trademark Office…

[polawyer]

10 Environmental Law Cases That Will Make You Rethink Everything

PO Lawyer - Environmental law cases can change the way we perceive our role in the environment. They highlight the complex and often conflicting relationship between human activity and nature. While some cases have resulted in positive changes, others have shown us the severe consequences of our actions. The following ten cases showcase some of the most significant environmental law cases of all time.

The 10 Environmental Law Cases

In the following, the top ten Environmental Law Cases that you must know include: - Marbury v. Madison (1803) - Sierra Club v. Morton (1972) - Tennessee Valley Authority v. Hill (1978) - Massachusetts v. EPA (2007) - Chevron v. Natural Resources Defense Council (1984) - Exxon Valdez Oil Spill (1989) - Bhopal Disaster (1984) - Love Canal (1978) - Deepwater Horizon Oil Spill (2010) - Kivalina v. ExxonMobil (2008) 1. Marbury v. Madison (1803) This landmark case established the principle of judicial review, giving the Supreme Court the power to declare laws unconstitutional. While not directly related to the environment, this decision has had a significant impact on environmental law, allowing courts to strike down laws that threaten the environment. 2. Sierra Club v. Morton (1972) In this case, the Supreme Court ruled that the Sierra Club did not have legal standing to sue the government over a proposed ski resort in the Mineral King Valley of California. Read More: How to Choose the Best Oilfield Injury Attorney This decision led to the creation of the Environmental Protection Agency (EPA) and the passage of the National Environmental Policy Act (NEPA), which gives citizens the right to participate in environmental decision-making. 3. Tennessee Valley Authority v. Hill (1978) The Supreme Court ruled that the construction of a dam in Tennessee would violate the Endangered Species Act (ESA) and endanger the habitat of the endangered snail darter fish. This case established that the ESA could be used to protect not just individual species, but entire ecosystems. 4. Massachusetts v. EPA (2007) In this case, the Supreme Court ruled that the EPA had the authority to regulate greenhouse gas emissions under the Clean Air Act. Related: Animal Law vs. Environmental Law: What’s the Difference? This decision paved the way for the Obama administration's efforts to regulate carbon emissions and combat climate change. 5. Chevron v. Natural Resources Defense Council (1984) This case established the "Chevron deference," which gives government agencies significant leeway in interpreting and implementing environmental laws. This decision has been controversial, with critics arguing that it gives too much power to government agencies and undermines the role of the courts in environmental decision-making. 6. Exxon Valdez Oil Spill (1989) This disaster off the coast of Alaska spilled over 10 million gallons of crude oil and devastated local ecosystems. The resulting lawsuits and settlements led to significant changes in the way the oil industry operates and the implementation of new environmental regulations. 7. Bhopal Disaster (1984) The Bhopal disaster was one of the worst industrial accidents in history, killing thousands of people and causing severe environmental damage. Also Read: Contest a Power of Attorney The resulting lawsuits and public outcry led to significant changes in corporate responsibility and environmental regulation in India and around the world. 8. Love Canal (1978) The discovery of toxic waste buried beneath a residential neighborhood in New York led to the evacuation of over 700 families and the creation of the Superfund program, which helps clean up hazardous waste sites. 9. Deepwater Horizon Oil Spill (2010) The Deepwater Horizon oil spill in the Gulf of Mexico was one of the largest environmental disasters in history, spilling over 200 million gallons of oil and causing significant damage to marine ecosystems. The resulting lawsuits and settlements led to new regulations and increased scrutiny of the oil industry. 10. Kivalina v. ExxonMobil (2008) The residents of Kivalina, an Alaskan village threatened by rising sea levels, sued ExxonMobil and other oil companies for contributing to climate change. While the case was ultimately dismissed, it brought attention to the issue of climate change and the responsibility of corporations in addressing it.

Conclusion

Environmental law cases have played a significant role in shaping environmental policy and regulation, as well as our understanding of the complex relationship between human activity and the environment. These ten cases have highlighted both the positive and negative outcomes of human activities on the environment and underscored the importance of environmental protection. By learning from these cases and taking action to reduce our own environmental impact, we can help to ensure a sustainable future for ourselves and future generations.

FAQs Environmental Law Cases

1. Why is it important to know about environmental law cases? Understanding environmental law cases is crucial for individuals, policymakers, and organizations interested in environmental protection. These cases highlight the legal framework and principles that guide environmental decision-making and can serve as examples of both positive and negative outcomes of human activities on the environment. 2. What impact have these cases had on environmental policy? Environmental law cases have led to significant changes in environmental policy and regulation. Some cases have resulted in the creation of new laws and agencies, while others have led to the strengthening of existing laws and regulations. In some cases, environmental law cases have led to the adoption of international agreements and conventions. 3. How have these cases impacted corporate responsibility? Many of these cases have involved corporations and have led to increased scrutiny of their environmental practices and responsibilities. Some cases have resulted in significant financial penalties and settlements, while others have led to changes in corporate behavior and practices. Overall, these cases have helped to establish the principle that corporations have a responsibility to protect the environment and to be held accountable for environmental damage. 4. What can individuals do to support environmental protection? Individuals can support environmental protection by advocating for environmental policies and regulations, reducing their own environmental impact, and supporting environmental organizations and initiatives. By staying informed about environmental issues and taking action to reduce their own impact, individuals can help to protect the environment and ensure a sustainable future. 5. What challenges do environmental law cases face? Environmental law cases can face challenges such as political opposition, lack of funding, and the difficulty of proving causation in environmental damage. Additionally, some cases may involve complex legal and scientific issues that require significant expertise and resources to address. 5. How can we ensure that environmental law is effective in protecting the environment? To ensure that environmental law is effective in protecting the environment, it is crucial to have strong laws and regulations, adequate enforcement mechanisms, and public participation in decision-making. Dont Miss: What to Expect When Working with an Attorney at Law Additionally, ongoing research and monitoring of environmental impacts can help to inform policy and regulatory decisions and ensure that they are based on the best available science. Don’t forget. With. Development Perfect Organiztion Lawyer by clicking on the link. In. Lower. This : Facebook. (By clicking on this link, you will be logged into PO Lawyer Facebook) Let’s click now. Or you can also see our Twitter, Flickr, Pinterest, VK, Tumblr, Diigo, or you can visit our Google News. We Are Also There Channels YouTube For Look Lawyers Information us Visually Come on Now Join Us. Read the full article

[etiennekissborlase]

Is Ripple Like Chevron XRP Like Oil? Why The Chevron Doctrine Matters

Is Ripple Like Chevron, XRP Like Oil? Why The Chevron Doctrine Matters https://bitcoinist.com/ripple-like-chevron-xrp-like-oil/ The comparison of Ripple to Chevron and XRP to oil is already a few years old. Cory Johnson already claimed in 2018: “Ripple is like Chevron, XRP Is like Oil. You can buy all the oil you want and it doesn’t give you access to Chevron profits, and you can be a Chevron shareholder but you have no control over the price of oil.” And that comparison took on new relevance Monday. The Supreme Court announced it will address the Chevron doctrine, which gives federal agencies, such as the U.S. Securities and Exchange Commission (SEC), significant leeway in interpreting ambiguous laws. Supreme Court justices will decide in the next term whether to overturn the decades-old precedent. The 1984 Chevron Deference, named for the court’s decision in Chevron U.S.A. v. Natural Resources Defense Council, has become one of the most frequently cited precedents in U.S. administrative law. It established that, where a statute is ambiguous, courts should defer to the interpretation of the appropriate regulatory authority, provided that such interpretation is reasonable. Remarkably, shortly after the SEC filed its case against Ripple in December 2020, former U.S. Attorney James K. Filan made a prophetic prediction via Twitter: When it comes to SEC v. Ripple, and all the different federal agencies trying to regulate crypto, start thinking about the bigger picture, like Chevron deference, the major questions doctrine and our new Supreme Court makeup. Will Chevron Doctrine Review Help Ripple? Critics of the Chevron doctrine argue that it grants regulators overreaching powers and allows them to exceed the statutory framework, given by Congress. In the context of the Ripple lawsuit, the SEC may argue that XRP qualifies as a security under the Howey test, even though cryptocurrencies did not exist in 1946. According to XRP community attorney John E. Deaton, the Chevron doctrine “is a very dangerous approach because it involves unelected government officials who have extreme power.” The best example, he says, is Gary Gensler, chairman of the SEC, who can disregard existing law. “Even if the judge disagrees with the interpretation, if it is objectively reasonable, then the agency can define rules,” warns Deaton, who, however, sees no direct application to the Ripple SEC case. According to him, the Chevron doctrine is more important in other respects, as Ripple does not involve an unclear definition around an investment contract: So, the Chevron case is not directly applicable to Gary Gensler and the SEC and what they do with crypto. What they are doing is not interpreting a statute, they’re grossly expanding – unconstitutionally in my opinion – the Howey decision and the reach of the Howey test, applying it to the secondary market and the asset itself. Where the Chevron doctrine matters for crypto, according to Deaton, is the banking issue. With that in mind, the XRP lawyer believes Caitlin Long, founder of Custodia Bank, is fighting the “most important battle for crypto” by applying for a banking license. At press time, the XRP price was at $0.4603, remaining within the range it had fallen into on March 20. via Bitcoinist.com https://bitcoinist.com May 03, 2023 at 12:10PM

[davidrivkin]

No More Deference to the Administrative State

By David B. Rivkin, Jr., and Mark Wendell DeLaquil

July 11, 2022, in the Wall Street Journal

In a case last month upholding religious liberty, Justice Neil Gorsuch announced that an old precedent had ceased to be good law: “This Court long ago abandoned Lemon.” One day the Supreme Court may issue a similarly belated death notice for Chevron v. Natural Resources Defense Council, the 1984 ruling that vastly expanded the power of administrative agencies. If so, the beginning of the end will have come on the closing day of this year’s term, when the high court decided West Virginia v. Environmental Protection Agency.

In Chevron, the justices held that when Congress enacts an “ambiguous” statute, courts are obliged to defer to any “reasonable” interpretation offered by an executive-branch agency. The Chevron doctrine assumes that agency personnel have expertise that judges lack and that agencies are more democratic than courts because the former answer to the president. Chevron deference allowed the EPA to set national carbon-dioxide standards, the Transportation Department to prescribe automobile safety features and numerous other agencies and departments to regulate virtually every aspect of American life.

But this approach corroded democratic accountability by freeing lawmakers from the duty to legislate clearly. West Virginia is an important step in returning responsibility for solving the nation’s problems where it belongs, to Congress. It will shape resolution of the key policy issues in the remainder of the Biden administration and beyond.

Under Chevron, as Chief Justice John Roberts noted for the court in West Virginia, the absence of a political consensus to address difficult problems led to undertake extravagant regulatory efforts. Among them were the Centers for Disease Control and Prevention’s attempting to dictate housing policy, the Occupational Safety and Health Association’s driving vaccination policy, and, in this case, the Environmental Protection Agency’s creating national energy policy by updating the Obama administration’s anti-fossil-fuel Clean Power Plan.

In these cases, the agencies acted outside their expertise and certainly didn’t promote political accountability. The legislative process of political compromise was bypassed and democracy subordinated to government lawyers stalking dusty library shelves in search of vague and outmoded statutes. The West Virginia decision buttressed legislative authority yet led to strident criticism from legislators, dramatizing how comfortable Congress has become in abdicating its responsibility for difficult policy decisions.

Chevron also dramatically weakened the judiciary’s ability to check agencies’ regulatory overreach. Before 1984, the judiciary took a “hard look” approach in assessing the legality of federal regulations. Chevron was more of a rubber stamp. Judges blessed specific regulations and countenanced agency actions that Congress had never authorized. It made a mockery of Chief Justice John Marshall’s declaration in Marbury v. Madison (1803): “It is emphatically the duty of the Judicial Department to say what the law is.”

West Virginia limits Chevron by fleshing out the “major questions doctrine,” a longstanding judicial presumption that when an administrative agency asserts authority over questions of great economic and political significance, it may act only if Congress has clearly authorized it to do so. Or, as the Constitution puts it: “All legislative powers herein granted shall be vested in a Congress of the United States.

West Virginia’s critics focus on its policy impact because its legal merit is so compelling. By proscribing ambiguous congressional delegation where it matters most, the major questions doctrine re-establishes judicial authority and legislative responsibility. Absent a clear statutory delegation of the power to regulate, the executive branch can’t regulate at all. Where statutory language is clear enough to grant regulatory authority, it should eliminate substantial ambiguity about how that authority can be exercised. This effectively strips agencies of much of their regulatory willfulness, compelling them to regulate only as Congress intended. The domain of Chevron deference is limited to filling in the interstitial details of statutes in which Congress has decided the policy stakes.

West Virginia and the major questions doctrine are certain to surface again soon. Take the Securities and Exchange Commission’s proposed climate-change disclosure regulations. The SEC has a statutory directive to protect investors, facilitate capital formation, and maintain the efficient operation of capital markets. It has neither the expertise nor the statutory authority to regulate greenhouse-gas emissions. In light of West Virginia, the SEC ought to withdraw its proposal.

The Federal Trade Commission is contemplating a regulation that, without any clear statutory authority and departing from well-established FTC practices, purports to ban mergers even when no anticompetitive harms are visited on consumers. The Education Department proposes to eliminate basic mandatory procedural due-process requirements, such as a live hearing and cross-examination, in Title IX regulations that govern disciplinary procedures in universities.

Going forward, the first question in any important case concerning agency power is whether Congress actually intended for the agency to be regulating at all, not whether agency attorneys were clever enough to find a vague statute to justify a new rule. The power of the administrative state is certain to recede, bolstering democratic accountability, economic growth and liberty.

Mr. Rivkin was lead outside counsel in the case brought by 27 states challenging the Obama administration’s Clean Power Plan, in which the Supreme Court issued a 2016 stay. Mr. DeLaquil is lead counsel for Westmoreland Mining Holdings, a party to a case the court decided last month with West Virginia v. EPA.

Source: https://www.wsj.com/articles/no-more-deference-to-the-administrative-state-west-virginia-v-epa-chevron-major-questions-john-roberts-regulation-democracy-congress-11657475255

[bemusedlybespectacled]

What's the Chevron deference?

OKAY OKAY SO

Quick rundown on how the government works: Congress makes the laws, but the executive branch enforces them. Federal agencies are created to make that enforcement easier. The law that governs how federal agencies operate is called the Administrative Procedure Act. So, Congress passes a law that says "all cars must be electric," and the EPA creates regulations making that more specific (what counts as a car, whether it's just new cars or all cars, what "electric" means) according to the procedure laid out in the APA, and then they enforce those regulations.

It is assumed that the agency tasked with enforcing a law knows best how to enforce it, since they are (presumably) staffed with experts on environmental science or car safety or firearms or whatever. This is called Chevron deference, after Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which comes in two parts:

1) Did Congress already unambiguously address this thing? (For example, did they specifically say "a car is defined as a four-wheeled passenger vehicle" or something like that?) If they did, then we go with what Congress said.

2) If they didn't address this thing directly, if it was vague or left out of the law, does the agency's interpretation of what they meant make any sense? Like, if the EPA decided "cars" meant "things you use to travel over water," that would clearly not make any sense. But if there's any way for it to make plausible sense as an interpretation, then it's valid.

(Note that an agency's interpretation of their own regulations is basically always considered valid no matter how ambiguous it is. This is called Skidmore deference and it's a different thing.)

You can see how this is stacked in the government's favor: if any plausible interpretation is valid, then you basically either have to show that Congress explicitly said X and they're doing Y (which almost never happens) or that their interpretation of the law is so nutty that there's no plausible explanation for it.

But this isn't the end all, be all. Actions taken by an agency can't be "arbitrary or capricious" - basically, everything they do has to be backed up with something. You can't create the law out of thin air or interpret the rules however you want. An explanation – ANY explanation – as to why the agency is doing X instead of Y is fine, as long as it's within the bounds of plausibility. Doing something with no explanation, or an explanation so whackadoodle that it's clearly not conforming with reality, is arbitrary and capricious.

So, I'm a federal agency. Congress has passed the "Uniform House Colors Act," which says all houses need to be blue and creates an agency (me) to oversee all the house painting. I am interpreting "all houses need to be blue" that to mean that it includes any shade of blue; that is, you can choose if it's dark blue or light blue or blue-green or what-have-you. So I am going to promulgate a regulation based on that interpretation. All I need to do to make sure my regulation is nearly impossible to challenge is to do the following:

Make sure my regulation defines "blue" in a way that definitely only means "blue," and not "red" or yellow."

Have a notice and comment period on my new regulation, making sure to gather data about why it's better to have houses be many shades of blue instead of only one shade.

Make sure that when my regulation is promulgated, it comes with a report on that data.

Make sure that when I enforce the regulation (I fine everyone whose houses aren't blue $10), I'm actually enforcing it against non-blue houses and don't fine people for having, say, indigo houses when I said shades of blue, including blue incorporating another color, was fine. And when I do enforce it, I explain my reasoning ("Mr. Jones' house is very clearly a reddish purple, which, though it technically contains blue, is not considered a shade of blue").

Make sure that, if a later administration comes along and says that actually we're making all houses cobalt blue now and no other color, that we go through this whole process again.

Simple, right? But it's slow and kind of boring. You have to get people to actually gather data and shit and justify your decisions.

So, normally this makes the government's job incredibly easy: if you can give a reason, any reason, to make your regulation plausibly related to the law creating it, and can enforce it in a fair way (or at least, in a way where you can explain why you're doing the thing you're doing and your reasons aren't totally bonkers), you're good against anyone challenging it outside of constitutional stuff.

And this is why the Trump administration's process of deregulation is so fucking funny to me: they didn't follow the process at all. They'd just get rid of stuff without explaining it, or with clearly bonkers explanations. They either didn't know or didn't care about the Administrative Procedure Act, and so they just. kept. losing. The government is literally handed a shitload of relatively-unquestionable power so long as they follow a couple of basic rules, AND THEY DIDN'T. SO THEY LOST ALMOST EVERY SINGLE CHALLENGE TO THEIR REGULATIONS OR THE ENFORCEMENT OF THEM.

LITERALLY ALL THEY NEEDED WAS SOME KIND OF THING THAT SAID "THIS IS WHY WE ARE DOING WHAT WE ARE DOING" WITH LITERALLY ANY EXPLANATION OTHER THAN "BECAUSE WE WANT TO" AND THEY'RE GOLDEN. AND THEY DIDN'T, BECAUSE THEY WERE FUCKING INCOMPETENT ASSHOLES.

THEIR OWN IMPATIENCE AND INCOMPETENCE IN ENACTING POLICY CHANGES WAS EXACTLY WHAT SCREWED THEM OVER. THEY WERE SO BAD AT BEING EVIL THAT THEY ENDED UP LEGALLY FACEPLANTING NEARLY EVERY TIME THEY TRIED TO ACCOMPLISH ANYTHING.

THANK YOU FOR COMING TO MY TED TALK.