The Consequences of Repealing Chevron

For decades, courts have deferred to federal agencies when interpreting vague statutes. What constitutes the “take” or killing of an animal? What does it mean to maintain a wildlife population’s viability? What does “multiple use” mean when it comes to managing Forest Service or Bureau of Land Management lands?

But a recent ruling by the U.S. Supreme Court, Loper Bright Enterprises v. Raimondo, has shifted the authority to make these decisions from the executive branch to the federal judiciary. The 6-3 decision, split along ideological lines and written by Chief Justice John Roberts, did away with what’s known as the Chevron precedent, which instructed courts to defer to agency expertise regarding ambiguous laws, as long as those readings were reasonable.

The Chevron doctrine was one of the most-cited administrative law cases ever. In striking it down, the Supreme Court made an untold number of statutes vulnerable to legal challenges, while curtailing the ability of federal regulators to interpret and enforce existing laws.

“I think the bottom line is it will undoubtedly be disruptive,” said Martin Nie, a professor of natural resource policy at the University of Montana.

High Country News, an independent magazine based in Colorado that covers issues that affect western states, has compiled a list of some of the issues and topics in its core coverage areas that are likely to be impacted by Chevron’s repeal.

Lands, water and wildlife

Multi-use mandates: Several of the agencies that oversee land, water and natural resources are governed by multiple use mandates. Enacted in the 1960s and 1970s, these instruct agencies like the Bureau of Land Management and the Forest Service to promote a variety of outcomes, including recreation, sustained yield of natural resources and conservation.

“The statutes governing the Forest Service and the BLM are famously vague and discretionary,” Nie said.

This is especially true of the Federal Land Policy Management Act, which has directed public land regulation since 1976. The law has been flexible enough to accommodate both the Trump administration’s energy dominance agenda and the Biden administration’s recent conservation rule. The latter involved a new interpretation of FLPMA, elevating conservation to the same level of importance as energy extraction. Without the deference standard, Biden’s new rule will probably face legal challenges.

Unexpected upsides: For the nonprofit organizations that watchdog the federal government’s wildlife and natural resource agencies, the ruling may actually offer some benefits.

“The agency deference that has been part of the Chevron decision has worked against us in many cases,” said Josh Osher, public policy director at the Western Watersheds Project.

The nonprofit regularly challenges agency rulemaking and decisions that its staff believe do not follow the law. With Chevron’s agency deference gone, Osher thinks it’s now going to be difficult-to-impossible for the Fish and Wildlife Service to delist the Greater Yellowstone or Northern Continental Divide population of grizzly bears.

Nie says he believes that environmental laws, like the Endangered Species Act, that are relatively prescriptive as written may be less impacted by Chevron’s absence. The same legal specificity may help uphold decisions pertaining to national wildlife refuges — given that the U.S. Fish and Wildlife Service has a mandate to protect biological integrity, diversity and environmental health — and the Wilderness Act, which specifically prohibits “trammeling” protected areas.

This optimism is not universal, of course – especially given the uncertainty inherent in undoing 40 years of legal precedent.

“It reduces the effectiveness of our federal agencies that have the expertise on staff because it is up to the judges to interpret technical and scientific aspects of implementing the law, rather than the professional scientists within agencies,” wrote Rebecca Turner, chief policy and partnerships officer at American Forests, in an email to HCN.

Tribal law

Bureau of Indian Affairs: Legal experts say that the repeal of the Chevron precedent will have broad implications for Indian Country. 

James Meggesto, an Onondaga citizen who leads the Native American law team at Holland & Knight, said that, on the one hand, the Supreme Court’s decision levels the playing field for tribes that wish to challenge federal regulations that “negatively impact Indian Country.” 

“Not every decision of, say, the Bureau of Indian Affairs or the Indian Health Service, when they were interpreting statutes, necessarily benefited tribal interests,” he said. 

But this cuts both ways. Meggesto mentioned two recent Biden administration rules that could now be vulnerable to lawsuits: a move to ease the process of transferring land into trusts to be held for the benefit of a tribe and a revision of regulations governing gaming compacts. 

”This [ruling] is going to encourage anti-tribal interests to potentially challenge those in court,” he said. “And so tribes are going to be in a position of wanting to assist the government in defending those positive regulations.” 

Meggesto said the recent ruling doesn’t affect the key tenets of Indian law, as expressed in the Canons of Construction of 1832. Those principles, he said, are “that treaties are to be construed as the Indians would have understood them, and federal laws, if they’re ambiguous, should be construed in a manner most favorable to the tribal interest.”

Climate and clean air

Tailpipe emissions: One of President Biden’s signature climate policies — an Environmental Protection Agency rule that uses the Clean Air Act to limit tailpipe emissions from cars sold in the United States — was under threat before Chevron’s repeal. The attorneys general of more than two dozen states, including Idaho, Montana, Utah and Alaska, sued the EPA in April, shortly after it released a final rule that aims to dramatically reduce nationwide carbon emissions by pushing automakers to sell greater proportions of hybrid and electric vehicles.

Existing laws are not explicit regarding whether regulators can take action against mobile sources of greenhouse gases — such as cars — as opposed to stationary sources like an industrial plant, according to Reuters.

The U.S. Court of Appeals for the District of Columbia Circuit will decide whether the rule will stand, without the leeway for agency interpretation that Chevron allowed.

Power plant emissions: Released in April, the EPA’s new carbon rule is ripe for legal challenges in a post-Chevron landscape. The regulation relies on the Clean Air Act, Clean Water Act and Resource Conservation and Recovery Act to limit pollution from power plants, including coal and natural gas plants, effectively pushing them to retire or install carbon capture technology to cut 90 percent of their greenhouse gas emissions by 2032 — a move hailed by climate advocates. Many states, however, argue that the drastic limits are unreasonable and vastly exceed the EPA’s authority under written law. 

Clean energy

IRA tax credits: In 2022, Congress passed the Inflation Reduction Act, a sweeping piece of legislation that included numerous tax incentives to spur the clean energy transition.

While the law itself remains intact, in a future without Chevron, legal experts are concerned that agencies will struggle to implement it. Some lawmakers disagreed, for instance, on whether sourcing electric vehicle components from certain foreign countries should be allowed; others have protested a Treasury Department rule that blocks nuclear plants from receiving funding for clean hydrogen projects.

Without the Chevron precedent, legal challenges to agency rules meant to implement the IRA could significantly stall the nation’s progress toward rapid decarbonization.

Transmission lines: To bring more decentralized solar and wind farms onto the power grid, developers need more transmission lines. The long wait times to get them approved have become a bottleneck, endangering the nation’s climate goals.

That’s why, in May, the Federal Energy Regulatory Commission released Order 1920, a regulation that forces transmission operators to be more proactive in their planning process, with the aim of easing connections to the grid. It’s already received partisan pushback from Republican states and state utility commissions, who say that the rule is too prescriptive and limits their legal role in the planning process.

FERC’s sole Republican commissioner, Mark Christie, is already arguing that Chevron’s repeal will probably nullify Order 1920.

“The most important legal lifeline that Order No.1920 needed was pulled away today,” Christie wrote on the day of Chevron’s repeal, “and the final rule’s chances of surviving court challenges just shrank to slim to none.”

Labor

The Fair Labor Standards Act, passed in 1938, mandated a national minimum wage, ended child labor and established overtime pay rules. But the law is at times ambiguous regarding which workers benefit from these standards. Historically, the U.S. Department of Labor issues rules clarifying issues like safety regulations, unemployment standards and union-organizing protections.

Without Chevron, decades of these interpretations are now subject to legal scrutiny. In a blog post by Littler Mendelson P.C., the well-known law firm that often represents employers in union and labor litigation predicts that federal labor regulators will issue fewer and more narrow regulations.

A Texas judge has already ruled to block the Department of Labor’s new overtime rule from going into effect. Devin Ombres, an attorney for the Center for American Progress, a progressive think tank, said that “labor law is so dependent on Chevron deference that virtually any type of progressive regulation that protects workers is going to be challenged under this new paradigm.”