A South Dakota farmer seeking review of a wetlands determination may be one of the first beneficiaries of the Supreme Court’s decision overruling the 40-year-old Chevron doctrine, which required courts to defer to agency expertise when laws passed by Congress are not explicit.
He’s not the only one. Following the June 28 decision, the court granted eight other petitions and remanded those cases to lower courts, including one about a National Labor Relations Board ruling. And in the wake of its decision in Loper Bright Enterprises v. Raimondo, a flurry of lawsuits already in the works were filed that seek to take advantage of the court’s decision.
Environmental and public health advocates warn of confusion in the federal courts – and at federal agencies – over how the limits of agency authority will be defined. They also say the new legal regime will force Congress to give agencies more specific direction in the laws it passes, a job that Congress, without the phalanx of scientists and technical experts that federal agencies have, is ill-equipped to handle. Lastly, they say the court’s decision gives judges – also not subject matter experts for every complicated case that comes before them – too much power.
But supporters of the decision, which achieved a long-held goal of conservatives, say it returned Congress to its rightful place as lawmaker in the three branches of government. The say it will help rein in agencies that have gone well beyond their statutory mandates in issuing rules.
Arlen Foster, of Miner County, S.D., has been fighting the USDA Natural Resources Conservation Service’s wetlands determination, made under Swampbuster provisions, for 15 years. Last year, the 8th Circuit Court of Appeals found in favor of NRCS by relying on Chevron.
The case will go back to the 8th Circuit, which will decide “whether to keep it or send it back to the district court,” Pacific Legal Foundation attorney Jeffrey McCoy said. The appeals court can order additional briefing, but McCoy said nothing has been filed
“Either way, we are confident that, without having to defer to the agency’s interpretation, the court will hold that Mr. Foster is entitled to a review of his wetlands determination,” McCoy said.
Travis Cushman, deputy general counsel at the American Farm Bureau Federation, which supports Foster, said Loper Bright “makes it easier for us to establish why we think the agency is wrong.”
AFBF's Travis Cushman Chevron, he said, allowed agencies to determine the scope of their authority, which he calls “a pretty perverse incentive to ask somebody who's wielding authority, how much authority do you think you have? The answer is always going to be more and more and more.”
“Chevron doesn't necessarily overturn anything,” Cushman says. “It just no longer puts its thumb on the scale for the agency.” He also contends that Chevron is often misinterpreted.
“Chevron is only about the legal authority that a statute gives, and the agency's ability to interpret that. It is not going to the agency's core expertise of being factual and scientific experts.”
Other cases whose outcomes could be influenced by the Loper Bright decision include challenges to EPA tailpipe and power plant greenhouse gas emissions, and most recently, a lawsuit against the Bureau of Land Management over a rule that puts conservation on equal footing with other land uses such as energy exploration and grazing.
“The agency’s contrary decision is foreclosed by plain text and is not entitled to deference under any circumstance,” says the complaint, filed in Wyoming July 12 by energy and farm groups including AFBF, the Wyoming Farm Bureau, National Cattlemen’s Beef Association and American Petroleum Institute.
Cushman also points to a lawsuit filed in Washington, D.C., in December challenging human health water quality criteria in Washington state. AFBF is an amicus in the case brought by Washington businesses including a trade group representing food processors.
The complaint alleges the standards are so strict that in some cases contaminants cannot be detected at levels set by EPA. “When, as here, an agency repeatedly changes its interpretation of a statute, its interpretation should receive little (if any) deference,” the lawsuit says.
Changes won’t happen overnight, say experts.
“it's going to take a lot of time for the sky to fall, because all of these things need to wend their way through the courts,” Devon Ombres, senior director, courts and legal policy, at the Center for American Progress, said on a webinar last week.
Ombres and other panelists who discussed the decision added that Loper Bright cannot be looked at in isolation. The court released a decision shortly after Loper Bright that tossed the six-year statute of limitations for lawsuits brought under the Administrative Procedure Act (Corner Post v. Board of Governors of the Federal Reserve System).
“Removing the statute of limitations from reviewing agency rules means that almost any rule, no matter how long it's been on the books, no matter how settled it is, could theoretically be challenged now, years later,” said Alexandra Grose, senior policy counsel for Consumer Reports' sustainability policy team. “These settled, foundational rules that have given us protections could be … completely upended.”
Grose predicts “a lot of confusion. I think policymakers are going to be trying to figure out how to adapt to this fundamental shift in power.”
Congressional Republicans want to know which rules adopted by agencies rely on Chevron. In letters to departments, House lawmakers ask for information on how rules have been adopted.
The letter to Secretary of Agriculture Tom Vilsack, for example, requests “a list of all final agency rules not yet challenged in court that may be impacted” by the decision if they are challenged. The letter also asked for a list of pending rulemakings.
One vulnerable rule – now just a proposal – seeks to define “harm to competition” under the Packers and Stockyard Act to make it easier for producers to challenge unfair practices.
A legal analysis published before Loper Bright was issued argued that a well-crafted PSA rule should receive deference from the courts. But losing Chevron “would not be the end of administrative deference altogether,” Spencer James Parts wrote for the University of Chicago Business Law Review that a 1944 decision (Skidmore v. Swift) allows courts to “consider various factors in determining how much weight to give an agency’s interpretation of a statute.”
The court kept Skidmore in place, but dissenting Justice Elena Kagan argued that the majority in the 6-3 decision did not clearly state the limits of judicial deference.
Under Skidmore, agency interpretations “’constitute a body of experience and informed judgment’ that may be ‘entitled to respect.’” Kagan wrote. “If the majority thinks that the same judges who argue today about where ‘ambiguity’ resides [when using Chevron] are not going to argue tomorrow about what ‘respect’ requires, I fear it will be gravely disappointed."
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