Governmment
Supreme Court Curtails Federal Rulemaking Authority
Contractor associations seek clarity on ruling, while environmental groups decry loss of a 40-year regulatory precedent
The Supreme Court has overturned the 1984 ruling, Chevron vs. Natural Resources Defense Council, in Loper Bright vs. Raimondo and returned a revised interpretation of the role of courts in the oversight duties of federal agencies.
Image courtesy SCOTUS
The U.S. Supreme Court ruled June 28 that Chevron vs Natural Resources Defense Council—the 1984 decision that directs courts to defer to federal agency interpretation of laws regulating everything from environmental protection to labor and commerce—is unconstitutional and returned that power to the U.S. Congress and state legislatures.
"Chevron cannot be reconciled with the [1946] Administrative Procedures Act by presuming that statutory ambiguities are implicit delegations to agencies," said Chief Justice John Roberts, in the high court ruling on two lawsuits challenging the precedent, Loper Bright Enterprises vs Raimondo and Relentless v. Department of Commerce. "That presumption does not approximate reality. A statutory ambiguity does not necessarily reflect a congressional intent that an agency, as opposed to a court, resolve the resulting interpretive question." Justice Ketanji Brown Jackson was recused from the Loper case review.
The Associated General Contractors of America is "assessing the impacts of the decision," said Brian Turmail, vice president for public affairs and workforce. "However, it will definitely put more pressure on Congress to clarify intent when crafting new laws. It will also encourage agencies to tack closer to the statute than they have done in the past few years, which is something that AGC of America has long advocated."
One existing ambiguity was cited by Roberts and the five associate justices who concurred in the ruling—Clarence Thomas, Samuel Alito, Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh. In a concurring opinion, Gorsuch said deference to the interpretation of what a federal law means to executive branch agencies that won the last presidential election creates a constantly changing regulatory environment not based on written law.
"Applying Chevron deference, judges began deferring to the views of executive agency officials about the meaning of federal statutes," he said, citing the 1803 Marbury vs Madison ruling as a precedent. The deference rests on a 'fictionalized statement of legislative desire, namely, a judicial supposition that Congress implicitly wishes judges to defer to executive agencies’ interpretations of the law even when it has said nothing of the kind."
A dissent by Justice Elena Kagan was joined by Justice Sonia Sotomayor and partially by Justice Jackson, said: "In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law."
The opinion added that "as if it did not have enough on its plate, the majority turns itself into the country’s administrative czar," and its decision "was not one Congress directed."
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Federal Authority Challenge
The decision comes in cases that challenged a regulation from the U.S. Commerce Dept.'s National Marine Fisheries Service by Loper Bright Enterprises, a family-owned herring fishing business. The high court review has wider implications for the framework that federal agencies have used for 40 years to develop regulations that impact construction and other sectors.
Environmental groups panned the decision, many noting that overturning Chevron opens many issues of federal oversight to judicial review that would bog down processes for everything from environmental review to project feasibility studies.
"This is a profound change, and a terrible one," said the Council, the original Chevron case respondent. "It's part of this court’s broad, concerted effort to make it harder for our government to function."
A Major Shift in Regulatory Authority
The Associated Builders and Contractors, a group whose majority membership is majority non-union contractors and the ABC-led Coalition for a Democratic Workplace filed a brief supporting the case challenge. ABC said the high court "has rightly recognized that Chevron deference gave too much authority to federal agencies ... that interpret statutes in radical, expansive ways never intended by Congress." The decision "will result in more reasonable policies from the executive branch," it added in a statement by Kristen Swearingen, vice president of legislative and political affairs at ABC and chairwoman of CDW.
Labor unions largely opposed the ruling, saying that it "awards authority to the judiciary that should stay with policy experts in the federal government,” AFL-CIO President Liz Shuler said in a statement.
Ben Jealous, executive director of the Sierra Club, sees the decision as highly consequential for the future of environmental regulation.
The ruling "will give unelected judges more room to indulge their own policy preferences, and to override the considered judgment of public servants with the scientific and technical knowledge, experience, and accountability required to protect the public," he said in a statement. It will "imperil the ability of the federal government to protect our air, water, and health, tackle the climate crisis and enact the commonsense safeguards of our bedrock public-interest law."
