For the past forty years, federal agencies had the power in implementing their programs to interpret statutory language that was considered too ambiguous, enjoying respect of the courts via what was known as the “Chevron doctrine.” More specifically, within the environmental law community, various federal agencies utilized this administrative law authority in analyzing legislation as they saw fit according to their specific area of expertise. Environmentally-related agencies had the ability, given discretion by reviewing courts, to employ their specialized knowledge when broad legislation needed some specific understanding.
When the Chevron doctrine was considered valid, therefore, the judicial branch would analyze whether a government agency’s interpretation was permissible by performing the “Chevron two-step test.” The first step in the two-part test required the reviewing court to determine whether or not Congress clearly addressed the issue in question in the statutory language. If not, then step two required analysis of whether the government agency had the power to interpret the statute in question. With the Supreme Court overruling Chevron, this two-step test no longer applies.
The Loper-Bright decision has generated much uncertainty on what administrative law will look like, in legal fields as far flung as health and safety, consumer products, and tax policy, not just environmental law. One of the open questions is whether and how the decision might affect state administrative law, such as in Massachusetts.
First, for all this time, Chevron deference was considered foundational black letter law. Now the textbooks on administrative law must be rewritten. Students of administrative law and practitioners of it must find new footing on what flexibility is given to agencies, how Congress narrows or grants that flexibility, and what is the role of reviewing courts which are likely to see hundreds of new complaints by opponents of specific government regulations.
Next, agencies such as the Environmental Protection Agency (EPA), Department of the Interior (DOI), and Department of Agriculture (USDA) no longer will feel they are free to interpret ambiguous legislation themselves. Instead, the judicial branch, specifically the courts, will have larger oversight. This a serious shift within the branches of government.
On a larger scale, overruling Chevron diminishes rulemaking powers of the federal agencies, challenges Congress to be more specific in enabling acts and authorizing legislations, and resets the balance between the branches. Ultimately, Loper-Bright opens up new opportunities for the federal courts to exert themselves in statutory interpretation.
Lastly, from an environmental law perspective, the Supreme Court’s decision will likely change the way government agencies function. For decades, the agencies have engaged in studies of what needs regulating and funding, and these become environmental initiatives within existing programs. They will reevaluate whether these fresh ideas to deal with old problems are sufficiently authorized by laws on the books.
This author believes that climate change, air pollution, water pollution, and chemical regulation will not be amenable to piecemeal justification in court cases, and the playing field is now tipped in favor of delay at the behest of the regulated communities. This is a political effect, likely an intended effect of overruling Chevron, to diminish the traditional role of agencies’ extensive, specialized, and scientific knowledge in administrative policy and law.
Another nuance is that courts and judges by their nature and role are not arbiters of scientific issues, are uncomfortable with making rules of general application and future effect, and lack the vision needed to make societal legislative-type judgments in the broad public interest.
Whitney Roth, J.D. Candidate at Vermont Law and Graduate School, was a law clerk at the firm during summer 2024
