Supreme Court appears poised to overturn precedent that protects public health, safety | Opinion
The Supreme Court is reconsidering a seemingly technical legal doctrine, called Chevron deference, but its decision will have profound effects on the legal system and people’s lives.
In 1984, in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court unanimously ruled that federal courts should defer to administrative agencies when they interpret the statutes they act under.
To give a simple example: The federal Clean Air Act authorizes the Environmental Protection Agency to set standards for the amount of pollutants that can be put into the air. The EPA has adopted many regulations specifying the amount, in parts per million, of specific pollutants that particular types of businesses can emit. Chevron deference provides that federal courts should give deference to the EPA’s judgment.
The EPA has expertise on air pollution and is in the best position to assess what is best for public health relative to the costs of imposing restrictions. Congress cannot legislate with sufficient specificity to adopt laws as to every type of pollutant. The federal courts are not in a position to make better decisions than the EPA on these technical, scientific issues. Chevron deference is not judicial abdication: The courts still review agency decisions to be sure that they are not “arbitrary, capricious or an abuse of discretion.”
Opinion
But those regulated by the government, especially businesses, have long objected to Chevron deference. Simply put, they want to make it much easier to challenge federal regulations and have them overturned by the courts. Conservatives who generally oppose government regulation and favor business interests have likewise long lamented Chevron deference.
On January 17, the Supreme Court heard oral arguments in two cases that expressly pose the question of whether Chevron deference should be eliminated and the 40-year-old precedent overturned. The cases — Loper Bright Enterprises v. Raimundo and Relentless v. Department of Commerce — involve a federal law regulating the fishing industry.
The Magnuson-Stevens Act gives the Secretary of Commerce and the National Marine Fisheries Service the power to “implement a comprehensive fishery management program.” The law also requires that fishery-management plans “may require that one or more observers be carried on board a vessel … for the purpose of collecting data necessary for the conservation and management of the fishery.” The statute, however, does not specify who pays the costs of these monitors. The National Marine Fisheries Service adopted a rule requiring that the fishing industry bear these costs, and the federal courts of appeals found that this was a reasonable interpretation of the statute and, therefore, that courts should defer to the agency’s determination.
I wrote a brief to the Supreme Court in these cases on behalf of Sens. Sheldon Whitehouse, Mazie Hirono, the late Dianne Feinstein and Elizabeth Warren urging the court to affirm the lower courts and not overrule Chevron. Our central argument is that Chevron is vital to Congress’ ability to protect Americans through efficient and expertise-based regulation. We argue that Congress doesn’t have the time nor ability to respond as quickly and nimbly as federal agencies.
If Chevron is overturned, the country will face particular difficulty in responding to “emerging environmental dangers and evolving remedial processes.” During the first nine months of 2023, Congress passed only 30 bills, “only thirteen of which have been signed into law.”
The oral arguments on January 17 lasted three-and-a-half hours and left little doubt that the court’s decision will be 6-3, as the conservative justices were unequivocal in their criticism of Chevron deference and the liberal justices were emphatic in defending it.
In large part, this reflects the differences between liberal and conservatives on the importance of government regulation to protect health, safety and the environment. Also underlying the case is the issue of respect for precedent, with the Roberts Court having repeatedly shown little regard for precedent, most dramatically in overruling Roe v. Wade and 45 years of decisions that had allowed colleges and universities to engage in affirmative action.
As Solicitor General Elizabeth Prelogar argued to the court, overruling Chevron would be tremendously disruptive to the legal system and open the door to countless challenges to every type of administrative regulation. But here, as with so many other areas, the court’s decision is much more likely to follow the conservative political agenda than to adhere to long-standing precedents.
When regulations to protect the health and safety of Americans are much more often overturned by courts, we all lose.
Erwin Chemerinsky is dean of and a professor of law at the UC Berkeley School of Law.
