Breaking: Supreme Court Overturns Chevron Decision
Breaking: Supreme Court Overturns Chevron Decision
Here Are The Environmental Implications & Also A Nepo Baby Story....
In light of the Supreme Court’s 6-3 ruling today overturning a 1984 decision known as Chevron, I wanted to share an excerpt (with some light edits) from my book, Superman’s Not Coming, that offers more context for this ruling.
….The EPA, in its early days, had bipartisan support from Republican and Democratic presidents alike. All that changed during the first Reagan administration in the early ‘80s when he appointed EPA administrators with deep corporate ties, known for complaining about government overreach.
Anne Gorsuch Burford, the first female EPA administrator served from 1981 to 1983, resigned less than two years into the job amidst a scandal concerning her mismanagement of the Superfund program. Many experts now refer to the former conservative state legislator as the original overthrower of the EPA.
She proposed deep budget cuts to the agency and rolled back clean water and air protections while touting an industry-friendly agenda. In the first year of the Reagan administration, the number of enforcement cases filed from regional offices to the U.S. EPA dropped by 79 percent, while cases filed from the U.S. EPA to the Department of Justice dropped 69 percent.[1] Most national environmental laws survived that time and the agency regained resources, but never fully recovered. Even with good laws on the books, the agency has been hamstrung by enforcement issues and outdated science.
But we did gain one new law from Anne’s time trying to weaken the agency and that’s the doctrine of Chevron deference. It’s named for the 1984 Supreme Court case Chevron U.SA., Inc. v. Natural Resources Defense Council,[2] which worked to address a rule that the EPA created under her called “bubbling.”
It refers to a piece of the Clean Air Act (CAA) that puts stricter limits on new emission sources than older ones, since cleaning up old factories, etc. is harder than building new, cleaner facilities. The law essentially says new power plants, oil refineries, and other sources of toxic emissions need to meet the stricter standards.
Bubbling was an interpretation of that law saying that as long as a new part of the facility did not cause any increases in emissions for the whole facility, the new section could pollute more than the CAA regulations allowed. The court disagreed with this logic, but ultimately decided that ambiguous language in any law should go back to the expert agency to interpret it.
Despite the judges favoring a different interpretation of this law, Chevron established that federal agencies have the power to interpret and enforce the laws made by Congress.
This doctrine became tricky in a politically divided world. Democratic administrations tend to use Chevron deference to expand the EPA’s authority, while Republican administrations generally use it as a weapon to weaken the agency.
In an interesting twist of historical fate, one of the newer members of the Supreme Court [joined in 2017], Neil Gorsuch, son of EPA-slayer Anne, has said he opposes Chevron deference. That’s a member of the Supreme Court that doesn’t think expert agencies should have the power to interpret laws.
And now he’s made that opinion law.
Both pollution cases and charges to polluters from the EPA dropped during the Trump administration, as documented by the Environmental Integrity Project (EIP). The organization’s review of federal records found that during Trump’s first year, penalties charged to companies for violating regulations dropped by 49 percent compared to former President Obama’s first year.
The Trump administration filed 48 civil cases against polluters and collected $30 million in penalties from Inauguration Day in January 2017 through January 20, 2018.
In comparison, in Obama’s first year 71 civil cases were filed and $71 million in penalties were collected. The Bush Administration filed 112 settlements and collected $50 million in penalties; and the Clinton Administration filed 73 consent decrees and collected $55 million.[3]
About today’s decision, the Associated Press reported:
“The 40-year-old decision has been the basis for upholding thousands of regulations by dozens of federal agencies, but has long been a target of conservatives and business groups who argue that it grants too much power to the executive branch, or what some critics call the administrative state.”
Under Chevron, federal agencies had the power to make policy choices, such as filling gaps or defining terms in the statute. Without it, the courts will now make those kinds of policy decisions.
Knocking this decision down, in my opinion, is a recipe for chaos.
Chevron is likely the most frequently cited case in American administrative law.
We already have an impossible job when it comes to regulating our environment. We can’t keep up with all the pollution and corruption happening across the country. Corporations rule the roost. Federal judges will now have the final word about what statutes mean rather than the experts.
People these days like to talk about the “evils” of federal oversight and regulations. Without those basic guardrails in place, large companies get to do whatever they want.
Look at an interview this week with reporter Sharon Lerner discussing how 3M knew for DECADES that PFOS was harmful to human health and did nothing. The fines they’ve received are tiny drops compared to their immense profits.
We need both federal and state authority, but we also need to recognize the strengths and weaknesses at each level. By putting more of the burden on states or courts to enforce environmental laws, less enforcement happens.
The capacity of the states to do the scientific work, to do the regulatory work, and to follow through on the law enforcement and inspection work is much lower than the federal government.
Today’s decision poses even bigger risks to public health throughout our country, while polluters continue to make their messes in our backyards.
[1] Amanda Little, “A Look Back at Reagan’s Environmental Record, Grist, June 11, 2004, https://grist.org/article/griscom-reagan
[2] Chevron U.SA., Inc. v. Natural Resources Defense Council,: Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), https://supreme.justia.com/cases/federal/us/467/837
[3] “Civil Penalties Against Polluters Drop by Half During First Year of Trump Administration,” The Environmental Integrity Project, February 15, 2018, http://www.environmentalintegrity.org/news/civil-penalties-decline-under-trump-administration
Saddened that I am by this ruling, I cannot say it is surprising. It is fundamentally inconsistent with the concept of democracy, and indeed with express intention of the framers of the Constitution, to imbue disproportionate power in the branch of the Government that is least accountable, either to the People or the other two.
We must do all within our power to ensure the reelection of President Biden and the achievement of large Democrat majorities in both the House and Senate, to enable passage of a law limiting the terms of Supreme Court justices (to, say, 16 years) and to increase the number of justices to at least eleven.
Let's get to work, people!