Legal
US Supreme Court Will Hear New Challenge to Federal Rulemaking
High court has agreed to hear a case next term that could result in a possible shift in federal agency authority to interpret, through rulemaking, unclear US statutes.
Image: Daderot/Wikimedia Commons
The U.S. Supreme Court took “a significant step” by agreeing to hear a case that could reduce the authority of U.S. government agencies to interpret unclear federal statutes under a precedent established by the high court decades ago and is especially applicable to U.S. Environmental Protection Agency rulemaking, a former federal official told ENR.
The court on May 1 agreed to hear the case, which involves a relatively insignificant issue of whether the U.S. Commerce Dept. could require a fishing operation to pay costs for an environmental monitor. But justices will actually decide a legal doctrine that has provided federal regulators authority to define a law or rule when it is unclear or ambiguous, as written by Congress.
In 1984, the court ruled in Chevron U.S.A., Inc. v. Natural Resources Defense Council, the energy firm’s challenge of a federal clean air law, that courts must defer to administrative agencies for a "reasonable interpretation" of an unclear statute, rather than have courts step in to state Congressional intent. The ruling also has boosted administration driven efforts, particularly those of the current one, to more quickly propel efforts to forestall climate change impacts.
“I read this to say that the court is going to push for whittling down” what has become known as the 'Chevron doctrine,' " says Larry Liebesman, a senior advisor at Dawson & Associates, and former U.S Justice Dept. attorney with expertise in federal statute compliance.
'Crystal Clear'
“The question is where’s the balance,” he says, noting that the courts are not experts. It means that Congress must be “crystal clear” when writing legislation.
Modifying the Chevron ruling would only affect legislation without a clear direction from Congress and would be a way to shift responsibility back to legislators, Liebesman says. He does not think the Chevron doctrine will be eliminated by the high court but predicts its ruling will have an effect “across the board.”
Liebesman cites the Waters of the U.S. (WOTUS) regulation that determines which wetlands and areas adjacent to water bodies are federally protected, as an example of where “Congress has gone off the rail and the administrative state has jumped on.” The Obama administration took a broad regulatory approach, but it was narrowed under Donald Trump. The current administration "is shifting to a more broad approach,” he says, noting that the back and forth adds uncertainty for those making building related decisions.
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Conservatives have long considered the doctrine as enabling the widespread expansion of executive authority by shifting decisions from Congress, while progressives consider it a safeguard to allow federal agencies to do the job legislators assigned them without court interference.
“We look forward to explaining over the coming weeks and months why the Court should take a step back from Chevron and return power where it belongs,” said West Virginia Attorney General Patrick Morrisey, in a statement.
The court's conservative majority has signaled skepticism toward expansive regulatory power in rulings in recent years, including one in 2022 in West Virginia v. EPA that restricted EPA authority to issue sweeping regulations to reduce carbon emissions from power plants.
“Overturning Chevron would put more onus on Congress to directly tackle policy issues—and give judges more authority to define the limit of agency powers," says Bloomberg Law. "The high court’s ruling would shape future regulations as well as those that have been on the books for decades."
The court will take up the case in the term that begins in October.
Climate Change Damage Suits
In a separate move, the court on May 1 declined to hear a request by ExxonMobil, Chevron and other energy companies for a court venue change to hear lawsuits by several states and municipalities that seek damages from the companies for infrastructure and other cost impacts related to emissions-related climate change. These are among other similar suits that have been filed by public bodies since 2018 seeking damages.
The firms want the suits heard in federal court where they believe decisions may be more favorable, while plaintiffs seek to have state and local courts as the venue.
Justices let stand decisions by appeals courts that said state court was the right place for suits filed by Rhode Island and municipalities in California, Colorado, Hawaii and Maryland, stating thre was no legal support for moving them. The Biden administration argued similarly, claiming that no federal questions were raised in the suits. The energy companies had argued that the issue's national importance requires a coordinated federal decision, not a patchwork of responses from state courts.
A separate appeal by the companies challenging lower court decisions in New Jersey and Delaware is still pending before the Supreme Court.
