The Significance of Chevron Deference – CleanTechnica

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Two new SCOTUS cases, Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Dept. of Commerce, may impact federal agencies’ ability to perform their duties.

The U.S. Supreme Court is scheduled to hear arguments on January 17 in a pair of cases that could weaken the ability of federal agencies to confront the wide array of challenges the modern world throws at us, from protecting clean air and water to assuring the safety of food and medicines to preventing stock fraud and other financial scams, and more.

The cases Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce challenge the authority of federal agencies to make their best judgments about the detailed rules and standards required to carry out laws that Congress has passed and tasked those agencies to administer.

The cases narrowly involve the management of the Atlantic herring fishery. The stakes, though, are much broader: whether the courts will continue to respect the decisions of the expert agencies, or whether judges will be set free to impose their own preferences on agency actions and decisions.

The result could put hundreds of such decisions in the hands of unelected lower-court judges rather than agency professionals who have deep expertise in their appointed fields and who are accountable to the elected branches of government—the president and Congress.

At issue is a legal doctrine called Chevron deference. It came out of the 1984 case of Chevron USA v. Natural Resources Defense Council. In that case, the U.S. Supreme Court ruled that both agencies and courts must follow Congress’s laws when they are clear and unambiguous. But when laws have more than one reasonable interpretation, courts must defer to the reasonable choices made by the expert agencies that Congress has tasked to administer those laws.

NRDC lost that case. In the four decades since, NRDC has both lost and won other cases that have been decided based on the Chevron doctrine. But NRDC respects the legal framework that the doctrine provides and the important values it serves.

Congress passes the laws the federal agencies administer. And Congress gives agencies the responsibility to administer those laws.

Federal agencies are directly accountable to the U.S. president, the only public official elected nationally to serve the entire country. They are also accountable to Congress, which controls their funding and, through the Senate, decides whether to confirm each agency’s senior leadership nominees.

It is these publicly accountable federal agencies, not unelected judges, that have the responsibility, as well as the legal and technical expertise, to administer our laws in a way that ensures they achieve the purpose Congress intended.

Below are answers to key questions about this foundational legal doctrine and the important stakes these new cases have for the country.

What’s the Chevron case all about?

Federal agencies have both the responsibility and the expertise to administer the laws passed by Congress, to ensure that those laws achieve their intended purpose. For well over a century, the Supreme Court has given great weight and respect to agency interpretations of the laws that Congress told them to carry out.

Under long-standing precedent, when Congress has decided a specific policy issue, agencies and courts must carry out the legislature’s decisions. But when Congress has tasked an agency to flesh out Congress’s policy choices and the agency has made a reasonable determination, then the courts are supposed to respect those determinations.

Forty years ago, the Supreme Court affirmed this doctrine in the Chevron case, saying that federal courts generally must defer to an agency’s reasonable interpretation on points where a statute leaves room for an agency to fill in details or has more than one reasonable interpretation. In such cases, unelected federal judges, lacking the same technical expertise, may not substitute their personal policy preferences for agency interpretations.

Why is the doctrine of Chevron deference so important?

It protects the essential role of federal agencies in writing the rules and standards required to administer laws passed by Congress to protect, for example, public health, worker safety, the integrity of financial markets, or the quality of our air, food, water, and medicine.

It allows federal agencies—which are accountable to elected officials and have developed decades of expertise in the tasks that Congress has assigned to them—to do their duty on the public’s behalf, without having their reasonable policy choices second-guessed by unelected judges.

It provides judges with clear guidelines for resolving legal disputes regarding the administration of laws intended to safeguard the public.

And it clarifies the roles of the three branches of federal government (legislative, executive, and judicial) so as to promote nationwide consistency in the administration of our laws and minimize the number of conflicting court decisions due to diverse policy inclinations from individual judges.

That entire legal framework—and the protections, assurances, guidelines, and clarity it provides—is now being challenged before the U.S. Supreme Court.

How is this doctrine being challenged?

In both Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce, several herring boat owners have asked the Court to do away with or weaken the doctrine of Chevron deference, and the essential public protections it provides. If the Court decides to overturn Chevron, it will have to set a new test for judges reviewing agency decisions.

A ruling that weakens or reverses the Chevron deference doctrine could allow hundreds of unelected lower court judges to make decisions based on personal preferences, disregarding the expertise of the federal agencies that are accountable to the public through the elected branches of the president and Congress.

That could undermine safeguards the public has counted on for decades and the ability of federal agencies to administer the laws that Congress passes.

How might this case put public safeguards and protections at risk?

In confronting the complex challenges of the modern world, Congress doesn’t have the bandwidth, expertise, or foresight to address every detail, answer every question, or anticipate every new development that might arise in administering its laws.

So, when Congress enacts a law to advance some national purpose—protecting clean air, for example—Congress makes the big decisions and then relies on federal agencies to administer the law. That means crafting the detailed and technical rules and standards needed to achieve the law’s intended purpose, and to adapt those rules to keep pace with unforeseen and evolving risks.

This ensures that policy decisions are enacted into law and administered by the two branches of government—legislative and executive—that are accountable to the public, because they are composed of or responsible to elected officials. And it further ensures that laws are administered to achieve the purpose that Congress intended and are not thwarted by unelected judges inserting their personal policy choices.

How is that approach threatened by these cases?

This approach had been the foundation of sound governance in this country for many decades, but the Chevron deference doctrine affirmed it in 1984.

Reversing or weakening Chevron deference could upend that approach by opening the door to rulings in lower courts around the country that reflect the personal policy preferences of unelected judges who lack expertise in the relevant subject matter. That could unleash a torrent of litigation ai med at weakening or eliminating rules and standards we’ve relied on for decades to ensure the efficient functioning of society and protect us all from needless risk.

What was NRDC’s argument in the original Chevron USA v. Natural Resources Defense Council?

We argued that the Clean Air Act was unambiguous on the specific issue involved in that case. But the Supreme Court decided that Congress had given the U.S. Environmental Protection Agency (EPA) the authority to make a policy choice on that issue, and the Court later told the lower courts that in such situations, they should respect the agencies’ reasonable choices.

The Court’s ruling upheld a deregulatory decision by the Reagan administration (a decision by Justice Neil Gorsuch’s mother, Anne McGill Gorsuch, who was Reagan’s first EPA administrator). The Court’s decision was widely hailed by conservative judges and legal scholars—including conservative justices such as Antonin Scalia—as the right way for courts to conduct themselves. The Chevron doctrine has been followed for 40 years since in literally thousands of lower court decisions.

Now, however, an alliance of billionaire businessmen and conservative groups has turned against this useful doctrine. They want judges, not the agencies Congress has tasked to carry out its laws, to make these policy decisions. The small herring boats are out front in these cases, but siding with them in court are big business interests that want to avoid the safeguards our environmental, health, and financial laws demand of them.

Aren’t judges supposed to interpret our laws? Isn’t that why we have an independent judiciary?

Yes. It’s the job of federal courts to ensure that federal agencies carry out the will of Congress, as expressed in the passage of laws.

That means federal courts must first determine whether Congress has already decided the policy question at issue in a case. If so, that’s the end of the story. The court’s job then is to compel the agency to do what Congress intended.

But, when Congress decides to task an agency with choosing the right approach, within a certain range, the courts have a duty to respect that congressional choice. In such cases, the judge’s job is to determine whether an agency’s choice falls within the bounds Congress has set. If so, the court’s duty is to uphold that reasonable agency decision. If not, the court’s duty is to overturn the agency’s actions and make the agency stay within those bounds.

Does the Chevron doctrine undermine judicial authority?

No. It gives courts clear guidelines for resolving legal disputes involving laws that agencies implement that are ambiguous or lend themselves to more than one reasonable interpretation.

Sometimes, for instance, a law will provide an agency with a range of options, or a range of parameters, and leave it up to the appropriate federal agency to determine the best way to carry out what Congress intended. Other times, a law will be imprecise as to the specific actions required to administer it, in the expectation that such determinations will be made by the agency that has the expertise to make those decisions.

It is in those instances, where the law leaves room for reasonable interpretation, that the Chevron deference doctrine provides courts with clear guidelines: Defer to the expertise of the appointed agency, which is accountable to the public, not the personal preferences or predilections of an unelected judge who lacks the appropriate expertise.

Does the Chevron doctrine place too much power in the hands of agency bureaucrats?

No. Federal agencies are accountable to the two elected branches of government—the president and Congress.

Congress controls the funding of federal agencies. Congress tasks these agencies to administer the laws passed by Congress. And Congress, through the Senate, decides whether to confirm a president’s appointments to each agency’s senior leadership positions.

Why is agency expertise important?

Federal agencies are staffed by professionals with technical, legal, and scientific expertise in areas relevant to their field, whether that involves, for instance, defending federal ocean waters from the hazards of oil and gas drilling; protecting savings and investments by ensuring the integrity of capital markets; or safeguarding the public from dangerous chemicals in our air, water, or food.

Agency expertise therefore represents a significant public asset, accrued at substantial public investment. Taxpayers expect, and have a right, to benefit from the judgment and knowledge a staffer acquires over the course of a career devoted to, for example, food safety, water quality, or public health.

What else informs agency decisions and rulemakings?

Agency decisions and rulemakings are informed by a transparent process of public comments, hearings, and inquiry, all of which must be conducted in accordance with the U.S. Administrative Procedure Act. That ensures public input in agency decisions. It further ensures that agency actions are supported by the best available science, economic analysis, and other relevant information.

Once rules or standards are put into place, the politically accountable branches can amend or even repeal them, as conditions warrant.

Finally, federal agencies are accountable to both the president, the only public official elected through a national vote to represent the entire country, and to Congress, through its powers of oversight, funding, and authority to amend or repeal laws and regulations.

Is this what some conservatives call the administrative state?

We rely on the federal government to help advance and defend the national interests, values, and aspirations that gather us as a nation. Providing responsible public oversight—to ensure the efficient functioning of our society and to protect us all from needless risk—is an essential part of its job.

To perform those duties effectively, the executive branch operates federal agencies staffed by professionals with expertise appropriate to their appointed fields.

Congress controls the funding for those agencies and passes the laws that the agencies administer, subject to judicial overview. The agencies are directly accountable to the president, who is directly accountable to the public. Where the system falls short, oversteps its bounds, or requires updates, the Constitution provides the legislative, judicial, and executive branches sufficient tools to make needed adjustments.

What some wrongly call the administrative state is actually our federal system of governance at work. The doctrine of Chevron deference provides a legal framework that helps to make our government more effective at serving the public.

Originally published on NRDC.org blog. Courtesy of David Doniger, Senior Strategic Director, Climate & Clean Energy Program