On June 28, the U.S. Supreme Court overturned the 1984 decision known as the Chevron deference or Chevron doctrine, which now jeopardizes countless environmental, public health and workplace safety regulations. The 6 to 3 conservative majority ruling in two cases, gives dramatically more power to the courts, while diminishing the power of Congress and the president, who appoints the heads of federal agencies, such as the EPA, FDA and OSHA.
The ruling ends federal agencies’ ability to use science and their expertise to interpret laws passed by Congress and instead place those decisions in the hands of unelected judges, who generally have no expertise on these issues. Federal regulations, which cited the Chevron deference 19,000 times over 40 years, impact virtually every aspect of daily life, from the food we eat and the cars we drive to the air we breathe and medications taken.
Between The Lines’ Melinda Tuhus spoke with David Doniger, senior attorney and strategist for climate and energy with the Natural Resources Defense Council, who argued the original Chevron case for the NRDC in 1984. Here he explains how the end of Chevron deference will likely weaken many federal regulations and what the Biden administration has been doing since it correctly assumed that the Chevron deference would be overturned.
DAVID DONIGER: Well, so this is one of a series of rulings from the high court that definitely show hostility to administrative agencies and in particular to the environmental agencies on the part of the conservatives’ majority on the court. And this court is giving judges more authority to just decide, “No, this is what I think.”
And these are disturbing trends because the court is becoming itself a very powerful institution able to cancel or block the things that Congress and the executive branch do. Now, the original rationale for the Chevron ruling back in 1984 — and I argued and I lost that case — but the original rationale for that decision was, “There are a lot of decisions that really are policy decisions and they should be made by the politically accountable branches of our government, meaning Congress, which is elected and agencies which report to the president who is elected and not by courts who have no constituency.” That’s the term that Justice Stevens used, the terms he used in describing the reason to give the deference to administrative agencies.
I wanna be clear that deference was sort of a neutral principle, and it was used initially and the Chevron case and in many cases to justify weakening environmental protections or not adopting new standards and so on. The agency would say, “Well, the law is ambiguous about how we do this, or whether we have to do it and we choose not to. Or we choose to do it laxly.” That was doctrine came in a case during the Reagan administration over a Reagan administration deregulatory initiative.
And, it was used from my point of view in that negative way in the Reagan and two Bush administrations and to some extent in the Trump administration. On the other hand, the leeway that the idea of deference gives to agencies was used by the Clinton and Obama administrations to do more with the environmental laws or the public health laws, not less.
And that, I think, is what got the conservatives upset. They initially thought this was great because it helped the Reagan and Bush administrations cut back on things. But when they saw this doctrine used, it was a two-edged sword. They saw it be used by more progressive administrations. They said, wait a minute, this is bad for us. We need to destroy the administrative state, not just channel how it makes decisions.
And that’s the goal, on the right, to weaken the power of agencies to help Congress carry out laws. When you think about the consequences of that, Congress doesn’t have the bandwidth, the expertise and the foresight to deal with every problem that the modern world throws at us.
MELINDA TUHUS: When I was reading some of the articles about the decision last week, it said that the Biden administration knew this was coming and what the likely outcome would be. And so there was something about the Biden administration was making them much more specific so that it didn’t come to an issue of interpretation. It was very clear. Is that right?
DAVID DONIGER: They’re trying to write regulations to implement the Clean Air Act and other laws and just to focus on controlling greenhouse gas pollution. The EPA has been writing regulations and writing their explanation and their defense of the regulations saying, this is the best reading, this is the correct reading of the statute, which is a change from how you might have written this 10 years ago, where you would say, “Well, there’s several reasonable interpretations here. And we, under the Chevron doctrine, get a lot of discretion to choose which of the reasonable interpretations to make. And so we choose the more protective one, let’s say. Or in Republican administrations, the less protective one.”
So the Biden administration’s agencies have not been writing these rules saying, we should win because we get deference. They’ve been writing the rules saying we should win because we’re right. Now courts could disagree and say, “No, that’s not the right interpretation, and we’re gonna have to fight those battles out on this new turf.” This is really a battle for whether we can have an effective government.
Learn more about Natural Resources Defense Council at nrdc.org.
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