Will Confirming Judge Barrett be the Death of Chevron Deference?

This post was originally published on the Union of Concerned Scientists' blog. Reprinted with permission.

For many of us, the prospect of a Supreme Court with Judge Amy Coney Barrett giving conservatives a solid 6-3 supermajority is nightmare fuel. The consequences extend beyond hot-button social issues, such as women's reproductive rights or individual access to affordable health care. If confirmed, Barrett would likely spur the aggressive pro-business agenda that the Court has pursued under the auspices of Chief Justice John Roberts.

A key item on that agenda is overturning something called Chevron deference, which some business groups have made a top priority in their broader campaign to bring about, as former White House Chief Strategist Steve Bannon put it, the "deconstruction of the administrative state." In other words, changing this key doctrine would undermine the ability of Executive branch agencies to regulate on a huge range of public health, safety and environmental protection issues.

Chevron deference springs from a 1984 Supreme Court case called Chevron v. NRDC, which involved a legal challenge against a Clean Air Act rule issued by the U.S. Environmental Protection Agency (EPA). Specifically, the lawsuit claimed that the rule was based on an incorrect interpretation of a provision in the Clean Air Act. The Court resolved the case by relying on a doctrine that has since come to be known as Chevron deference.

According to this doctrine, if a reviewing court has first determined that the statutory language in question is susceptible to more than one technical interpretation, then it is supposed to defer to an agency's reasonable interpretation of that language. This approach reflects the judiciary's respect for Congress and its choice to commit the resolution of such difficult questions to the agencies that wield relevant policy expertise (rather than non-expert judges). Applying this doctrine, the Court in Chevron upheld the rule after finding (1) that the Clean Air Act provision in question was ambiguous, and (2) that the EPA's rule was based on a reasonable technical interpretation of that provision.

Chevron deference could be overturned or modified legislatively – for example, by amending the Administrative Procedure Act. But since that would be a hard sell in recent Congresses, opponents of Chevron deference have focused their attention on the Supreme Court. Some cases have chipped away at Chevron, such as King v. Burwell (which created an exception to Chevron deference for so-called "major questions"). With Barrett on the Court, the chance of finding enough votes to formally overturn the doctrine in its entirety increases, and cases will move quickly up the appeals court ladder to accomplish just that.

So, how would eliminating Chevron deference contribute to the goal of kneecapping our system of regulatory safeguards? Most immediately, it would erect a major barrier to expertise-based, science-driven implementation of federal regulatory laws like the Clean Air Act. It is an inescapable feature of lawmaking that even the best-written laws passed by the most conscientious and virtuous lawmakers could not possibly account for all technical details or possible future contingencies that might arise through sound and faithful implementation. Practical experience of enforcing the law will inevitably uncover gaps and expose ambiguities. This will especially be the case in regulatory statutes that require the application of cutting-edge science and technology for their effective implementation. What constitutes a "source" of air pollution? Or, how should the EPA go about determining the scope of reductions of air pollution one state should achieve so as not to cause problems for downwind states?

The real question is: Who is in the best position to fill these kinds of gaps and stake out a sensible position amidst these kinds of ambiguities? As both a constitutional and a policy matter, and clearly with respect to technical expertise, we should prefer agencies over the courts, and Chevron deference merely reflects this preference. Constitutionally, this approach is superior because Congress, in authorizing agencies to implement statutes, is also delegating authority to them to resolve these questions – and not to the courts. Thus, intrusion by the courts on these matters would be inconsistent with, if not an open defiance of, the clear instructions that Congress has laid out in the statutes. In terms of good policy, agencies – thanks to the vast expertise they have at their disposal (particularly compared to generalist judges) – are better equipped to resolve these details coherently and in a way that best effectuates the laws' underlying purposes and goals. That is why Congress committed these issues to them in the first place.

But, by repealing Chevron, the Supreme Court would essentially invite judicial policymaking, as activist judges would have freer rein to exploit unavoidable statutory ambiguities in order to substitute their own policy preferences. Or worse, it could halt agency action until Congress could pass legislative changes to resolve all ambiguity. For instance, if construing a term like "source" in a particular way would lead to weaker regulations, then judges might be able to do just that – even if the EPA had sought to adopt a different interpretation that would have promoted stronger public health and environmental safeguards consistent with the Clean Air Act's protective orientation.

If that's not bad enough, the importance of Chevron has taken on an extra dimension in recent years – one that not coincidentally traces its origins to the paralyzing dysfunction that has come to define Congress: Many agencies' authorizing statutes have not been updated, to account for changes in technology or emerging threats implicated by the statutes' objectives. The good news, though, is that in many cases, Congress had the foresight to design these statutes in ways that would permit agencies to remain responsive even in the face of inevitable, but always unpredictable, change, as long as deference to agency expertise remains the doctrine.

The Clean Air Act offers a good illustration. For years, lawmakers have failed in all efforts at passing legislation to address the climate crisis. Consequently, following the Supreme Court's 2007 Massachusetts v. EPA decision, which held that the Clean Air Act covered greenhouse gases, the Obama administration set about developing regulations under the statute to address emissions from leading sources, including automobiles and fossil-fueled power plants. Unsurprisingly, the application of the law's provisions to this novel air pollutant revealed new gaps and ambiguities, which the EPA was required to resolve by drawing upon its technical and scientific expertise. There was nothing illegitimate or inappropriate about any of this. Rather, the law was working exactly as Congress had intended. Just as importantly, had the Trump administration not repealed those rules, the Chevron deference doctrine still would have provided reviewing courts ample power to police any attempts by the Obama EPA to stray beyond the statute's boundaries.

And this is precisely the scenario that some business interests have in mind as they continue to wage war against Chevron deference. The counter-majoritarian dynamics of Congress are such that they have been able to block new regulatory legislation to address emerging issues like the climate crisis. But they haven't been able to cobble together the votes to repeal or weaken existing laws. And, thanks to Chevron deference, those laws remain a powerful vehicle for advancing protective safeguards as long as they remain on the books. In contrast, repealing Chevron would effectively "fossilize" them in a state not much different from when they were first enacted. They would be like the Jurassic Park mosquitos trapped in amber – parchment relics perfectly preserved but otherwise incapable of living and responding to present day circumstances. In short, through the repeal of Chevron deference, these interest groups hope to achieve through litigation what they could not achieve through legislation: neutralizing critical public interest laws like the Clean Air Act.

Repeal of Chevron is far from the only danger that a 6-3 conservative supermajority on the Supreme Court poses for the vitality of our regulatory system. Others include reviving the nondelegation doctrine and throttling citizen suits. The ability of citizens working together through the regulatory system to institute science-based protective safeguards has never been under greater threat than now.