The Problem of Loper Bright Delegation
Author
Eli Nachmany - Covington & Burling LLP
Covington & Burling LLP
Current Issue
March-April 2025
Issue
2
Parent Article
Asking Major Questions
Eli Nachmany

The Supreme Court’s recent elimination of Chevron deference raises an important question: What happens to the major questions doctrine? A full scholarly treatment of the answer would demand more space, but one immediate consequence is evident. The doctrine now has a critical role to play in defining the post-Loper Bright limits of “delegated” authority from Congress to agencies. The Court in Loper Bright Enterprises v. Raimondo saw delegated discretion as an area where something like deference might continue apace. The major questions doctrine will help to check the limits of those delegations.

Applying Chevron, a court would defer to a permissible agency interpretation of an ambiguous statute. But in Loper Bright, the Supreme Court ended this practice and established that courts must review agency statutory interpretations without deference. Nevertheless, the Court stated that Congress may “confer discretionary authority on agencies,” and it instructed courts to “independently identify and respect such delegations of authority, police the outer statutory boundaries of those delegations, and ensure that agencies exercise their discretion consistent with the” Administrative Procedure Act. As the Court pointed out, sometimes “the best reading of a statute is that it delegates discretionary authority to an agency.”

Following Loper Bright, the government has repeatedly argued that its regulations are exercises of delegated discretionary authority. Courts, including the Fifth Circuit in Mayfield v. Department of Labor, have accepted this argument. But if everything is just an exercise of delegated discretion, Chevron deference will return under a new name—what Professor Adrian Vermeule calls “Loper Bright delegation.”

The major questions doctrine solves this dilemma. The doctrine is focused primarily on curbing the worst excesses of agency assertions of delegated authority. In West Virginia v. EPA, the case that recognized the existence of the doctrine, the Supreme Court noted that “in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make [courts] ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there.” The discussion of delegation in Loper Bright elevates the meaningfulness of this passage.

The government has every incentive to claim that statutes delegate broad administrative authority. If a court acknowledges that assertion, then its review of the agency’s interpretation will be more circumscribed—thereby increasing the agency’s odds of victory in litigation. Some delegations may be so capacious that they violate the nondelegation doctrine, but the Court has recently been reluctant to apply it in the regulatory context.

Thus, in practice, the major questions doctrine is one of the most promising tools for courts to second-guess the most egregious agency assertions of delegation. That is a good thing. The language of Loper Bright is shifting the focus to delegation and discretion, and courts will need to deal with increasingly bold agency assertions of delegated regulatory authority. And in the face of such assertions, litigants and judges can look to the major questions doctrine to “police the outer statutory boundaries of . . . delegations,” as Loper Bright demands.

Of course, the major questions doctrine applies only “in certain extraordinary cases,” and courts are working through the meaning of “extraordinary.” For example, courts are grappling with the contours of such concepts as economic and political significance—threshold requirements to trigger the major questions doctrine’s applicability. Yet the existence of the doctrine as a background rule of interpretation, applicable in at least some cases, discourages agencies from claiming powers that Congress has not actually conferred.

Loper Bright threatened to open the floodgates of government assertions of delegated discretion when defending regulations. But two years earlier, in West Virginia v. EPA, the Supreme Court had already built (or, at least, recognized the existence of) a dam.

Ranking the Court’s Top Cases
Author
John C. Cruden - Beveridge & Diamond
Seth Gertz-Billingsley - Harvard Law School
Beveridge & Diamond
Harvard Law School
Current Issue
November-December 2024
Issue
6
Ranking the Court’s Top Cases

In Federalist No. 78, Alexander Hamilton described the judiciary of the proposed U.S. government as the “least dangerous” of the three branches. Events of the past few years might have Hamilton reconsider his famous position, as the Supreme Court has consistently appeared in the press for controversial society- and government-shaping opinions.

Whole cottage industries dedicate themselves to finding the Greatest of All Time in virtually every endeavor, from NFL quarterbacks and NBA guards to fashion designers and artists. Academics have their own such lists, with annual examinations of the greatest presidents, economics policies, and, yes, Supreme Court holdings.

While we enjoy reading all the lists, the Supreme Court has a special place in our hearts. Inconspicuously positioned off the National Mall, the Court often operates in the background of the frantic D.C. political hullabaloo. But from the beginning of our constitutional republic, the high court has punched above its weight. Never afraid of reminding the country of its jurisdictional superpowers, the Court has given the last word on some of our most important national issues, from abortion rights to gay marriage to health care availability.

That is particularly evident in the world of environmental law, as the Supreme Curt sought to interpret the explosion of statutes passed in the 1970s and 1980s. Those cases largely still govern most of the environmental realm today. Guided by rules of statutory interpretation, and no shortage of policy persuasions, the Court directed the development of law and established both opportunities and setbacks along the winding road toward sustainability.

Many scholars have addressed the question of identifying the most significant of the Supreme Court’s environmental decisions. In a series of articles in the Environmental Forum, for instance, Professors J.B. Ruhl and James Salzman identified what they called “American Idols” by polling professionals in 2001, 2009, and 2019. Their results were presented in a chart of the most important 10 decisions. Interestingly, but perhaps unsurprisingly, the top result changed each time they conducted the poll. TVA v. Hill headed the chart in 2001, but Massachusetts v. EPA took the spotlight in 2009. Completely expectedly, Chevron v. NRDC stole the hearts of voters and swept the 2019 competition.

While we completely laud Professors Ruhl and Salzman for their fascinating polling data, their lists are a little bit like a beauty pageant, voting for the most likeable. We decided to flip in at least a flavor of objectivity, beginning with the premise that the most important decisions would be those that lower courts most relied on, as of (Month) 2024.

Our strategy at the start seemed simple enough—we intended to take each case and track its citing references using Westlaw and Lexis, to observe its life over time. We anticipated that cases with higher citing references would have a greater impact than cases with fewer citations. But we quickly encountered some challenges. Some cases, like Lujan v. Defenders of Wildlife, undoubtedly changed litigation strategy. Counsel would not advise wasting resources just to have a case thrown out for standing, but that would also mean numerous cases that could be never were. We also found that some cases were coopted by other fields of law—criminal, administrative, etc.—and therefore had ghost citations that had nothing to do with our core subject. Finally, several cases had tens of thousands of cites, enough to keep a team of dedicated research assistants busy for semester after semester. Slowly, our research methods changed. In the end, we settled on total citations, ghosts and all, divided by years since the decision dropped. That ratio would give the average citations per year—not unlike a Major League batting average.

Our final list is composed of those environmental cases which had the most significant impact on the law as judged by how many courts, Supreme or otherwise, employed them in decisions. We then simply ranked the decisions by that average to produce a top-10 list—our Heavy Hitters.

A brief note on some other methods we considered. Initially, we anticipated employing the headnotes feature on Westlaw and Lexis. We thought that filtering for only those cases which cited the environmental headnotes of the case would allow us to find cases that only sat within the environmental law space. This method had several critical flaws. For one, it relied on a surprisingly ineffective system. The headnotes themselves often both over- and under-include relevant citing sources. Certain environmental headnotes, like the cases themselves, were also adopted by other fields of law. Additionally, some critical environmental holdings, especially in older cases, either were incorrectly headnoted or lumped into other headnotes. As a result, the search programs would say these cases received only a handful of citations, even though this was simply not true.

Abandoning the headnotes, we considered keyword searches in the lists of citing references, but we ran into similar problems. Nonetheless, it is worth noting that, with some exceptions, our efforts to sort by headnote or keyword largely tracked the total citations. With the notable exceptions of Winter and Lujan, our Heaviest Hitters generally made the cut whether we used either methodology, though the list would change order somewhat. This generally makes sense, as the cases above (again excluding Winter and Lujan, as well as Chevron) tended not to stray too far from the environmental fold. But uncertainties in our results led us to keep the methodology and scope described above.

Our list shares a lot with the list composed by Professors Ruhl and Salzman. Winter, Lujan, Chevron, Massachusetts, Penn Central, Sierra Club v. Morton, UARG, and Whitman appear in both our lists. The one case that made our cut and not the Professors’ is Bestfoods.

This of course creates just a bit of confusion. After all, we based our results solely on citations, and the professors used qualitative methods to arrive at their conclusions. So what is with the overlap? The correct answer is the simplest: Important cases get cited more frequently.

Maybe a more important question is what cases that made the cut for the professors didn’t stick around on ours. Looking at the 2019 survey, Rapanos, TVA v. Hill, and Overton Park didn’t pull through. On our master list, TVA v. Hill came in 12th, with 37 cites a year, Rapanos placed 15th, with 26 cites a year, and Overton Park landed in 21st, with only 16 cites per year. These cases didn’t do too terribly, and if we had knocked out the Winter, Lujan, Chevron outliers for their ghost citations, TVA v. Hill would have kept its spot on the list.

At risk of sacrificing our quantitative impartiality, we do have our own views as to why these top 10 cases were cited so much. Environmental law often drives watershed changes in administrative law. The recent FDA v. All for Hippocratic Medicine case provides a good example. In that decision, the Supreme Court found the doctors challenging the abortion pill lacked Article III standing. The case relies heavily on Lujan, Summers v. Earth Island Institute, and other environmental cases not for their environmental implications, but their standing doctrines. As Hippocratic Medicine illustrates, some key environmental cases wear multiple hats. We call these cases “dual hatted,” meaning that they could be cited for both environmental and administrative law reasons.

Top Environmental Heavy Hitters, Raked by Average Citations Per Year

1 Winter v. NRDC (2008) is a National Environmental Policy Act case that primarily considers the impact of sonar on marine mammals—but it has had an outsized impact for its straightforward presentation of the standard of law on preliminary injunctions.
Total Cites 21,832; Average Per Year 1,365

2 Lujan v. Defenders of Wildlife (1992), a case about the Endangered Species Act, remains the quintessential case on standing. Justice Antonin Scalia wrote that the plaintiffs lacked standing under Article III of the Constitution, because they based their claims on speculative environmental harms rather than “actual or imminent invasion of a legally protected interest.” TC 35,308; APY 1,103

3 Chevron v. NRDC (1984), which just entered oblivion, was not—despite what many commentators have suggested—the most cited case of all time, and the Supreme Court has not cited it since 2016, according to Loper Bright, the case that supplants it. But it still made it into the top echelon. TC 18,640; APY 466

4 Massachusetts v. EPA (2007) is, of course, the ultimate environmental decision. However, it is also the case to be cited by a state seeking standing, by giving states “special solicitude” to “protect[] [their] quasi-sovereign interests.” TC 1,302: APY 77

5 United States v. Bestfoods (1998) is one of the dual-hatted cases. It is first and foremost a Superfund decision on the liability of parent’s corporations. However, its corporate law discussion is relevant beyond the 1980 Comprehensive Environmental Response, Compensation, and Liability Act into other areas of law. TC 1,797; APY 69 (tie)

6 Penn Central v. City of New York (1978) said a city can restrict alteration and development of historical sites without causing a taking. This landmark decision established the now famous Penn Central test for compensation for a regulatory taking with three factors: “economic impact of the regulation on the claimant”; the extent to which the regulation interferes with “distinct investment-backed expectations”; and the character of the government action. TC: 3,171; APY 69 (tie)

7 Sierra Club v. Morton (1972) held that the club lacked standing to sue under the Administrative Procedure Act because it failed to show that any of its members had suffered or would suffer injury as a result of the defendants’ actions. Justice Potter Stewart wrote the opinion for the 4-3 majority, in which the Court held that, in order to have standing to sue under the APA, the plaintiffs must demonstrate they had directly suffered an injury as a result of the actions that led to the suit. TC 3,193; APY 61

8 Sackett v. EPA (2023), a new decision, made the list because it received so many citations within the first year after releasing. That is due, in no small way, to how extensive the controversy on “waters of the United States” under the jurisdiction of the Clean Water Act is right now. However, because Sackett now determines CWA jurisdiction, it is likely to remain an often-cited decision. TC 51: APY 51

9 UARG v. EPA (2014). Justice Scalia delivered the opinion of the court considering the regulation of greenhouse gases from stationary sources under the Clean Air Act, holding that EPA reasonably interpreted the act to require sources that would need permits based on their emission of conventional pollutants to comply with Best Achievable Control Technology but lacked authority to “tailor” the act’s numerical thresholds to accommodate its greenhouse-gas-inclusive interpretation of the permitting triggers. TC 501; APY 50 (tie)

9 Whitman v. American Trucking (2001), another dual-hatted decision, and also written by Justice Scalia, held that the Clean Air Act properly delegated legislative power to EPA, and that the agency could not consider implementation costs in setting primary and secondary National Ambient Air Quality Standards. The Court also found EPA’s implementation of the NAAQS was unreasonable. This case, however, is most often cited for its ruling on the allegation of illegal delegation of legislative authority and the inability to consider costs in this instance. TC 1,151; APY 50 (tie)

TESTIMONY In the box score on page 49, the authors present the heavy hitters—the most influential environmental decisions by the nine justices, ranked by how often courts cited the cases in later holdings.

More Suits Claim “Regulatory Takings,” as Case Law Adds Up
Author
Bethany A. Davis Noll - NYU Law
NYU Law
Current Issue
November-December 2024
Issue
6
Bethany A. Davis Noll

The law around the doctrine of “regulatory takings” under the Fifth Amendment has been very active in this decade. There were two cases addressing such claims just last term in the Supreme Court, and two recent others, in 2019 and 2021. These cases have implications for governments facing environmental challenges, so the trend is worth notice. We’ll review all four of them.

The Fifth Amendment states, “Nor shall private property be taken for public use, without just compensation.” This is applied to the states through the Fourteenth Amendment. Though government entities have police powers that allow them to issue land-use restrictions, when those restrictions physically interfere with the private use of the land, the restriction is a “per se taking” which must not occur without just compensation. In addition, when the government imposes permit conditions that interfere with a private party’s use of their land, those conditions may be an uncompensated taking as well. This is known as a “regulatory taking.”

To justify its actions and avoid these restrictions, the government must prove that the conditions have an “essential nexus” to the government’s goals and that the goal of those conditions is “roughly proportional” to the impact that they have. These principles were set out by the high court decades ago in Nollan v. California and Dolan v. City of Tigard. The Nollan case was about whether the California Coastal Commission could force the owners of a beachfront property to allow the public to walk across the property in exchange for a building permit. In Dolan, decided a few years later, the city wanted to condition a permit on the requirement that the private party allow the city to use part of her property for traffic control and flood prevention. The Court found that both plaintiffs had a takings claim.

The two cases from the past term have continued to support the expansion of takings law. In Sheetz v. County of El Dorado, the locality had required the plaintiff to pay a “traffic impact fee” in order to provide him with a permit to build a new, bigger house. The fee is designed to ameliorate the impact of new development on public services and it was imposed by legislation on people broadly. Lower courts had held that these types of widely applicable provisions were not subject to regulatory takings restrictions in the first place. But in Sheetz, the Supreme Court held that this was not the case and sent the case back to the lower courts to assess again.

In Devillier v. Texas, the state built a flood barrier in order to keep water off of a highway during intense storms. During two recent storms—Hurricane Harvey and Tropical Storm Imelda—the barrier worked, but the flooding overflowed into a nearby neighborhood. The affected property owners sued. The question in the case was whether the plaintiffs had a cause of action, and the court ruled in their favor.

The case from 2019, Knick v. Township of Scott, also dealt with a technical question about whether the plaintiff had filed the right cause of action. Knick was about whether the township could require all cemeteries to be open to the public, even when the cemetery was found on private land. The Court ruled in favor of the plaintiff in that case too.

Finally, in 2021, the Court decided Cedar Point Nursery v. Hassid. That case had to do with a California regulation that required employers to allow union representatives to speak with agricultural workers. The Court held that the access requirement was a per se taking.

A coalition of states, led by Virginia, filed an amicus brief in the case explaining that ruling for Cedar Point could threaten many rules needed to address environmental concerns—including regimes that require inspections to address nuclear safety, health hazards, and worker protection. The Court labeled these fears as unfounded; it stated that the nexus and proportionality requirements from Nollan and Dolan would be easy to satisfy for those types of regulations and requirements.

Many municipalities and states will need to take measures to adapt to the changing climate. Many are already doing so, and more will in coming years. The implications of this pile of takings cases is that government entities will need to make sure they can satisfy the Nollan/Dolan nexus and proportionality tests for many regulations and legislatively enacted measures.

Despite the Supreme Court’s optimism, it may be difficult to do so for broadly applicable legislative solutions—considering that the nexus and proportionality analysis is particular to the plaintiff’s circumstances and the impact at issue. As climate change adaptation measures increase and expand, the effect of these cases will be worth close attention.

More Suits Claim “Regulatory Takings,” as Case Law Adds Up

An Opportunity for Rethinking Environmental Protection
Author
Jarryd Page - Environmental Law Institute
Environmental Law Institute
Current Issue
September-October 2024
Issue
5
Jarryd Page

We all seem to be relearning how government works these days, and nowhere is that more true than in administrative law. With three recent decisions in particular, the Supreme Court has thrust us into uncharted territory. But with these changes come new opportunities to rethink, retool, and reshape the future of environmental protection.

At the end of its term, the Court decided Loper Bright Enterprises v. Raimondo, overruling the long-standing Chevron doctrine of judicial deference to federal agencies, and sending shockwaves through the environmental and legal community. Now courts will no longer bow to agency interpretations of ambiguous statutes, but instead use their “independent judgment” to supply their own “best reading.” Many are reeling from the decision and scrambling to understand what it will mean when applied to various areas of law. At a minimum, it has created significant uncertainty.

That decision alone would have made for a monumental term, and yet other cases will also have lasting consequences. Discovering the right to a jury trial in a Securities and Exchange Commission fraud action, SEC v. Jarkesy may limit other agencies’ ability to use administrative law judges to resolve enforcement actions, possibly including EPA. While not all defendants will opt for a jury trial, the decision may chill enforcement generally, with agencies deterred by the time and costs associated with going to federal court.

And agencies may now find themselves in court defending actions that go back decades. Corner Post v. Board of Governors of the Federal Reserve System upended how the statute of limitations within the Administrative Procedure Act has long been understood. Instead of six years for filing facial challenges to agency actions, Corner Post effectively erased that deadline by starting the clock at the time of injury, even for brand-new entities. As a result, any challenge governed by the APA, on any issue, can be brought by any plaintiff alleging harm. While Loper Bright alludes to the importance of stare decisis, its new standard of review may invite plaintiffs and courts to consider fresh challenges, with no deference to the agency.

It will take time for the dust to settle and to understand the ultimate impact of any one of these decisions, much less their combined effect. The upshot is that administrative law and environmental protection are in the spotlight, with long-standing approaches being undermined, and an unsettled future. On the one hand, there is a great deal of uncertainty, which we are likely to see play out in the courts in coming months and years; on the other, there may be room for new legislative, executive, and judicial norms to emerge. And that means that ideas surfaced today have the potential to influence the new scaffolding of administrative law for the future.

An Opportunity for Rethinking Environmental Protection.

Facing a Larger Strike Zone
Author
Eric Schaeffer - Environmental Integrity Project
Environmental Integrity Project
Current Issue
September-October 2024
Issue
5
strike

The chief justice once said that a judge’s job is limited to calling balls and strikes. Maybe so, but thanks to his Supreme Court, the Environmental Protection Agency now faces a much larger strike zone whenever it steps up to the plate with a new regulation.

On June 28, the Court buried the 40-year-old Chevron doctrine in its decision in Loper Bright Enterprises v. Raimondo, ruling that judges reviewing challenges to a regulation can no longer defer to an agency interpretation of ambiguous statutory language. The day before, in Ohio v. EPA, the Court effectively vacated EPA’s Good Neighbor Rule under the Clean Air Act, which limits cross-boundary pollution contributing to unhealthy ozone levels in downwind states—before the D.C. Circuit had completed its own review. Last year, Sackett v. EPA eliminated EPA’s authority to require permits before landowners fill in wetlands separated from navigable waters by a road, dike, or other physical barrier. And in 2022, West Virginia v. EPA struck down a rule to limit greenhouse gas emissions from power plants—after the Biden administration had cancelled implementation of the rule in question and announced it would soon propose an alternative.

This article raises several critical questions about both the short- and long-term consequences of these recent decisions. More specifically: Does Loper’s guidance about how courts should interpret vague statutory text provide a principled and reasonably consistent basis for judicial review of regulations? Will that case and other recent decisions make it next to impossible for EPA to comply with statutory mandates and deadlines enacted by Congress? The Court’s clampdown on EPA’s regulatory power is a dream come true for the right-wing coalition that swept into Washington with Newt Gingrich 30 years ago. How do anti-regulatory zealots’ oft-repeated claims about bloated bureaucracies and overreach measure up to reality? Last but not least, what can EPA and its supporters do to recover lost ground?

Decided in 1984, Chevron v. NRDC had left plenty of room for skeptical courts to remand or vacate agency decisions that reflected an unconstitutional delegation of legislative authority, conflicted with the law’s plain language or unreasonably interpreted its requirements, was arbitrary or unsupported by evidence, or which violated notice-and-comment requirements or other procedural safeguards. But the 6-3 majority in Loper went further by prohibiting courts from deferring to an agency’s interpretation of ambiguous statutory text. Instead, the judiciary is now duty bound to decide what Congress meant, or must have meant, when agencies make complex, technical decisions based on statutory language that is not clear on its face.

Some have hailed Loper as a long overdue curb on the expansion of the administrative state. Others fear the decision will flood courts with litigation and force judges to make hasty decisions they aren’t qualified to make. For example, where a law requires regulations to limit aircraft noise to “provide for a substantial restoration of the natural quiet,” Justice Kagan’s biting dissent asks, “How much noise is consistent with natural quiet? And how much of the park, for how many hours a day, must be that quiet for the ‘substantial restoration’ requirement to be met?”

What guidance does Loper offer courts trying to reconcile a regulation with an ambiguous statute? First, although a judge may never defer to an agency’s interpretation of its statutory responsibilities, however reasonable, the court can “respect” the agency’s views on its way to determining what Justice Roberts (who wrote for the majority) insists must be the “best” reading of the law. Since courts may decide how much respect to give an agency’s interpretation, this slippery slope risks unpredictable outcomes shaped by the policy preferences of individual judges.

Loper recognizes that federal judges in different circuits may disagree on the “best meaning” of a statutory term, leading to uneven implementation of a federal rule meant to apply nationwide and level the playing field: “We see no reason to presume that Congress prefers uniformity for uniformity’s sake over the correct interpretation of the laws it enacts.”

Deciding upon the best meaning of the law will prove harder than it looks. To get there, Loper directs courts to rely on “traditional principles of statutory construction,” which are unhelpfully not enumerated by Roberts. Indeed, judges do not always agree on what those principles are or how much they matter, so some guidance would have helped.

For example, “textualists” will parse the words of the statute, relying on Black’s Law or other dictionaries for definitions but usually will not consult legislative history to determine their meaning. As a classic textualist, Justice Scalia much preferred Chevron deference to reliance upon legislative history. “Purposivists” will also reach for dictionaries but turn to legislative history if it helps explain what Congress meant when it approved the words in a statute.

Interestingly, although Roberts believes Chevron deference is at odds with the “plain meaning” of the Administrative Procedure Act, he purposively reached outside the statutory text by citing the accompanying House and Senate report language to support his reading. Loper also cites Justice John Marshall’s “foundational decision” in Marbury v. Madison that “it is emphatically the province of and duty of the judicial department to say what the law is.” But Marshall did not hesitate to consult legislative history when exercising that power: “As ‘where the mind labours to discover the design of the legislature, it seizes everything from which aid can be derived.’” Dictionaries can be important aids to interpretation but often show that even common words have multiple and sometimes inconsistent meanings. In such cases, legislative history can sometimes explain what Congress intended by the words in a statute—as Marshall clearly understood. Regardless, after Loper this Court may find it harder to ignore at least the clearest expressions of congressional intent while trying to unearth the “best reading” of statutory requirements.

Ironically, Chevron actually upheld a Reagan administration Clean Air Act rule opposed by the Natural Resources Defense Council. The Supreme Court deferred to EPA’s view that the law applied only to net emission increases from the entire facility, allowing plants to claim that significant increases from modified units would be offset by emission reductions from other units.

Thanks to the complexity, manipulation, and gradual loosening of New Source Review “netting” rules, Chevron deference made it easier to extend the life of the older and dirtier grandfathered power plant units, many of which are still operating today. It has also repeatedly been invoked to dismiss claims that a particular rule is weaker than the law requires. In principle, Loper gives courts more room to consider arguments they previously declined to hear.

But those opportunities may prove limited. The conservatives who dominate today’s Supreme Court were appointed in part to reduce the power of federal agencies. In pursuit of that goal, they have reversed precedent, issued opinions before lower courts have finished review, overturned a regulation suspended by EPA that was due to be replaced anyway, and as Kagan noted in her dissent, decided that Congress could not have meant to authorize the Clean Power Rule—all without much regard for statutory text or traditional rules of construction.

The Court has frequently invoked statements in the Clean Water Act and Clean Air Act regarding the states’ primary role in protecting air and water quality. Yet these broad statements are balanced by others, such as, “It is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited,” and by the many congressional mandates that cannot be preempted by less-stringent state laws.

WILL statutory mandates to regulate go unfulfilled or be interminably delayed as agencies try to anticipate or respond to post-Loper court directives coming in from all circuits? If that effectively keeps EPA from complying with the marching orders it received from Congress, is that not a major transfer of power from both the legislative and executive branches to the judiciary?

Consider the legal and practical constraints the agency already faces when moving a new regulation all the way from proposal through the final stages of judicial review. The 1990 Clean Air Act Amendments, for example, bristle with mandates that order EPA to establish air quality standards to protect health and the environment, review and approve state implementation plans based on a strict set of criteria and replace them with federal implementation plans if those criteria are not met, and establish enforceable emission limits that apply to specific industrial categories. Congress considered these deadlines so important they authorized outside parties to sue the agency for failing to meet them. To emphasize the law’s federal mandates, the word “shall” is used 60 times to describe the state implementation plan requirements of Section 110 of the CAA, 101 times to describe the Title V program requirements that apply to the largest emitters, and 364 times when detailing the standards that apply to sources of hazardous air pollution.

Some of the most important requirements prohibit consideration of their economic cost. Justice Scalia, writing for a unanimous court in Whitman v. American Trucking Associations, held that federal air quality standards must reflect, not cost-effectiveness, but the “maximum airborne concentration that the public health can tolerate,” with an adequate margin of safety to account for uncertainty.

The laws direct EPA to establish pollution control standards and keep them up to date. For example, Section 301(b)(2) of the Clean Water Act charges the agency with establishing effluent limits to curb toxic discharges from specific industries based on “the best available technology economically achievable for such category or class.” EPA must review these at least once every five years and increase their stringency as treatment methods improve because, as the Fifth Circuit explained in 2019 in Southwestern Electric Power v. EPA, “The act . . . mandates a system in which, as available pollution control technology advances, pollution discharges will tighten.” The Clean Air Act includes similar criteria for establishing and reviewing technology-based emission limits.

The CAA and CWA even have “anti-backsliding” provisions to keep pollution limits from eroding over time and preserve hard-won gains in air or water quality. Once a state implementation plan to achieve or maintain air quality standards is approved by EPA, its requirements cannot be relaxed without further review and approval by the federal agency. Even in areas that already meet federal air quality standards, major sources cannot significantly increase emissions by modifying old plants without installing up-to-date pollution controls. With certain exceptions, a state may not reissue, renew, or modify an existing water permit to adopt less-stringent discharge limits or other relaxed permit conditions.

EPA’s regulatory power is substantial but also restrained by the Administrative Procedure Act. The agency cannot adopt or revise a regulation without proposing it first, reviewing and responding to comments that may number in the hundreds of thousands, surviving interagency and Office of Management and Budget review, justifying a final decision based on the rulemaking record—and withstanding judicial review after all that. This step-by-step process is meant to ensure fair and transparent decisionmaking that yields regulations well-grounded in the law and supported by the best evidence.

But over time, both external and internal political forces have added new hazards to EPA’s obstacle course. OMB’s Office of Information and Regulatory Affairs, domiciled in the White House, can hold up review of draft regulations for many months, denying or delaying action when approving the information requests to industry that EPA relies upon to gather supporting evidence. The agency must respond to demands from elected officials weighing in on behalf of favored industries. With some exceptions, EPA must grind through cost-benefit analyses that cannot adequately monetize the health risks associated with major rules.

Caught between its statutory mandates and deadlines, a declining budget, and the relentless anti-regulatory hostility of the Court and today’s Republican Party, it may be easier to build a house in a hundred-mile-an-hour wind than for EPA to complete a rulemaking, no matter how important to public health or the environment. An ongoing coalition of donors, think-tanks, industry lobbyists, and ambitious politicians have worked for decades to cut EPA down to size. Here are a few of their oft-repeated claims (in italics), followed by a reality check.

EPA grew enormously under the Obama and Biden administrations. Wrong. The agency’s full-time workforce averaged 17,421 per year under George W. Bush, 16,028 under Obama, 14,481 under Trump, and 14,664 during Biden’s first three years.

Adjusted for inflation, its $9.2 billion budget in the current fiscal year is about two thirds of what it spent in EPA’s 2001 fiscal year More than half of the total goes out the door as grants to states, cities, research institutions, and nonprofits—or as congressional earmarks. What’s left must cover the agency’s expenses implementing the legislative commands and deadlines of the Clean Air Act, Clean Water Act, Oil Pollution Act, Solid Waste Disposal Act (aka RCRA), Comprehensive Environmental Response, Compensation and Liability Act (Superfund), Safe Drinking Water Act, Emergency Planning and Community Right-to-Know Act, Toxic Substances Control Act, and Federal Insecticide, Fungicide, and Rodenticide Act.

EPA achieved much in its early days, but today’s environmental challenges are less serious and less urgent. The remarkable improvements in air and water quality over the past four to five decades are undeniable. But the U.S. population has grown more than 60 percent over that time period, global warming is leading to hotter and wetter climates that amplify the impact of pollution, and we struggle to react to new challenges while some of our oldest problems stubbornly persist.

Our waterways may be less likely to ignite, but are still plagued by too much bacteria, dangerously low oxygen levels, and a growing epidemic of toxic algae blooms. The 1972 Clean Water Act aimed to achieve “fishable and swimmable waters” no later than 1983. Fifty years later, based on the data that state agencies report to EPA, more than half of the rivers, streams, and lakes that have been assessed are too polluted to support aquatic life or fisheries, to be safe for swimming or other recreational uses, or to provide a reliable source of drinking water. The condition of more than half our river and stream miles has not been evaluated in recent years. The rate of wetlands losses doubled from 2009 to 2019 compared with the previous 10-year period.

After initial progress, the Dallas and Houston metropolitan areas have yet to meet the health-based ozone limits established by George W. Bush’s EPA. Ozone levels have worsened in recent years and the latest data show that Texas also is not meeting fine particle standards the Bush administration established. We are still tallying the damage done by PFAS and other “forever” chemicals, which may trigger the largest and most expensive environmental cleanup in our history.

EPA is throttling the fossil fuel industry. This is a phony crisis. U.S. oil-and-gas production reached their highest levels ever in 2023 and continues to accelerate in 2024. Exxon, Chevron, and Shell reported a combined total of $85.6 billion in profit last year, their second-highest total within the past decade. Since 2021, agencies have issued or revised hundreds of construction permits for new or expanded fertilizer or petrochemical plants, gas processors, compressors, carbon sequestration projects, and liquid natural gas terminals

EPA air quality standards are now unreasonably stringent and do not adequately consider implementation costs. The frequent review and tune-up of air quality standards is a statutory requirement, as Scalia explained in American Trucking. While these health-based standards are not supposed to consider economic burden, EPA estimated it would cost between $1.4 and $2.2 billion to meet the 2015 ozone standard, or between $4 and $7 dollars per capita assuming a full pass-through of costs. Including a margin of safety to ensure that health-based standards for air, water, or drinking water are protective enough is a requirement of law, not EPA “overreach.” The slow motion PFAS disaster that is still unfolding illustrates the high human and economic cost of ignoring the potential for risk until it is too late.

States will take on environmental problems that courts prohibit EPA from addressing. States play a critical role in environmental protection, but the notion that states will take up the slack where federal agencies abandon the field needs closer inquiry. For example, Justice Alito’s opinion in Sackett confidently asserted that “states can and will exercise their primary authority to combat water pollution by regulating land and water use.” In fact, based on an Environmental Integrity Project review completed in May, at least 18 states do not currently require permits before developers dredge or fill any wetlands, while the authority in six more is confined to certain coastal marshes. That list includes 17 of the 25 states that joined an amicus brief asking the Court to shrink EPA’s jurisdiction over wetlands that are adjacent to navigable waters. So far, there is no evidence that these states either “can or will” fill the void.

WHAT can EPA and its partners and constituents do to make up for the loss of Chevron, recognizing that their interests are not always identical? The agency should double-down on its statutory mandates and make a concerted effort to at least come closer to complying with the deadlines for meeting them. The agency is far, far behind in meeting many of these timetables. For example, it has largely ignored the Clean Water Act’s requirement to review the toxic discharge limits for industrial wastewater sources at least once every five years and increase their stringency to reflect any improvements in treatment methods.

The existing standards for 39 of the 50 industrial categories covered by these rules are more than 30 years old, and 22 of them date back to the 1970s or early 1980s. The report to Congress that is supposed to tell us about the state of our nation’s waterways is due every two years. The last version was sent up in 2017. Environmentalists have filed lawsuits to compel EPA’s compliance with these and other deadlines and will continue to do so.

To build an agenda around statutory mandates, the agency should provide a full accounting and ensure the most important are highlighted on the regulatory agenda. While the agency may initially have to give priority to the rulemaking schedules compelled by court order or consent decrees, a more long-term, strategic focus on mandates could ultimately give the agency more control over its work and reduce time-consuming litigation. EPA budgets should clearly identify the resources that will be committed to achieving these statutory requirements, information that is missing from the agency’s spending requests.

EPA cannot realistically promise to meet every single one of its congressional mandates on time. But greater transparency about these commands, when they will be met, and what it would take to do so would give the public a greater appreciation of the scope of the agency’s responsibilities. And clearer communication about these obligations could undercut the chorus of complaints about alleged agency overreach. A back-to-basics approach might also earn the agency some sympathy from justices who at least occasionally refuse to join the majority in striking down EPA rules, including Justice Kavanaugh in Sackett and Justice Coney Barrett in Ohio v. EPA. Even the Heritage Foundation’s Project 25 report recommends that EPA focus on its statutory mandates. We should give Heritage the opportunity to show their support for those mandates.

Following the death of Chevron, all litigants will need to test how the court will apply “traditional principles of statutory construction” to determine the “best meaning” of vague statutory terms. In particular, will the Supreme Court be more willing to consult the legislative history that Scalia set aside in favor of Chevron deference? If John Marshall first originated the idea that we look to courts to say what the law is, can the originalists ignore his at-tempts to understand what legislators had in mind when interpreting the laws they wrote? Also, will the Court at least balance the few words in our environmental statutes that acknowledge the primary role of states against the much lengthier expressions of federal authority that fill page after page of those same laws?

We are where we are today because an extensive conservative network of donors, interest groups, academics, and advocates are determined to reduce the federal government’s power to protect the environment and public health. Instead of directly challenging popular laws like the Clean Air or Clean Water Acts, they have made them much harder to implement, relying on crowd pleasers like “bloated bureaucracy” to shrink EPA’s workforce, and “regulatory overreach” to extend the power of conservative judges to block rules. Give them credit for playing a long game to get a Supreme Court they could only dream of thirty years ago.

Whether EPA will be allowed to retain or recover its authority to implement our environmental laws is as much a political as a legal question, and cannot be answered simply by filing more lawsuits. Environmental groups today are barely visible on Capitol Hill, and I have not seen a commitment to long-term strategy or the kind of deep organizing that moves hearts and minds and shakes up the political class. We will need to find that commitment to keep what we have today and to confront the environmental challenges that are surely coming.

COVER STORY The Supreme Court’s reversal of the Chevron doctrine follows a series of recent judicial curve balls and a long-term barrage of anti-regulatory pitches. EPA can still score hits powered by statutory mandates, while environmentalists come up with a new game plan.

Loper Bright and Corner Post May Create a “Tsunami” of Litigation
Author
Ethan Shenkman - Arnold & Porter
Arnold & Porter
Current Issue
September-October 2024
Issue
5
Ethan Shenkman

“At the end of a momentous term, this much is clear,” declared Justice Ketanji Brown Jackson: “The tsunami of lawsuits . . . that the Court’s holdings in [Corner Post] and Loper Bright have authorized has the potential to devastate the functioning of the federal government.”

Much ink has been spilled on the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which overruled Chevron v. NRDC—a 40-year-old precedent that required courts to defer to an agency’s reasonable interpretation of ambiguous statutory provisions. From this point forward, the Roberts decision reads, courts “must exercise their independent judgment” and “may not defer to an agency interpretation of the law simply because the statute is ambiguous.”

More significant, however, may be the combined effect of Loper Bright with the Court’s ruling three days later in Corner Post v. Board of Governors of the Federal Reserve System. This opinion creates a potentially expansive exception to the six-year statute of limitations for Administrative Procedure Act cases. Some stakeholders believe that, read together, the two decisions will allow parties to revisit lower court precedents and reopen old regulations and agency actions. Earthjustice, for example, warned that the “one-two punch” of these rulings “will sow chaos and undermine predictability and legal certainty.”

Will this pair of opinions spark a flood of environmental litigation? Consider first the potential for revisiting past court decisions upholding agency regulations and actions. Chief Justice Roberts, downplaying this concern, attested that “we do not call into question prior cases that relied on the Chevron framework. The[ir] holdings. . . that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology.” On the other hand, there are key exceptions to respect for precedent that parties will surely invoke.

It is unclear how many older cases will be perceived as worth targeting by motivated litigants. Even for cases decided under Chevron’s “step two”—where the statute is deemed ambiguous—it may be difficult to tell whether the court would have reached a different result absent the deference requirement. Indeed, in many cases, a court’s defense of an agency’s interpretation as “reasonable” signals that the court found the agency’s rationale persuasive. And the Loper Bright Court left intact so-called “Skidmore deference,” where the courts may give due weight to the well-considered views of an expert agency that the court finds persuasive.

Next consider the potential for challenging older agency regulations and actions. This is where Corner Post kicks in. In that case, the Court held that an APA claim does not “accrue” until a plaintiff is injured by final agency action, even when the government action being challenged occurred much earlier. Corner Post, a North Dakota truck stop operator that opened in 2018, joined a suit against the Federal Reserve Board under the APA in 2021, alleging that a regulation promulgated a decade earlier violated the Dodd-Frank Act.

The district court dismissed the case as barred by the six-year statute of limitations, and the Eighth Circuit affirmed. In a 6-3 decision, the Supreme Court reversed, reasoning that the truck stop operator could not have been injured by the regulation before it even opened for business.

This decision carries major ramifications for environmental practitioners. Regulations and other agency actions once thought to be safe from challenge because they “survived” the six-year statute of limitations—counting from the date the action was published or announced—may now be subject to challenge by newly created entities, or perhaps even existing companies opening new lines of business. And why would Corner Post be limited to businesses? A similar argument for re-opening older regulations and agency actions could be made, for example, by newly created environmental NGOs.

The effect of Corner Post may be limited when it comes to some environmental statutes that contain express time limitations for seeking judicial review predicated on a date certain—e.g., publication in the Federal Register—as opposed to the date the cause of action “accrued.” The Court made clear that its holding did not affect such provisions. On the other hand, some of these statutes have exceptions that could be affected by Corner Post’s reasoning. For example, the Clean Air Act imposes a 60-day period for judicial review, but provides an exception for cases based on “grounds arising” after the 60th day.

These are only a few of the issues that will have to be sorted as parties test the limits of these new doctrines. Tsunami or not, a wave of litigation is sure to follow.

Loper Bright and Corner Post May Create a “Tsunami” of Litigation.

At End of Term, Court Pummels Agencies in Four Landmark Cases
Author
Bethany A. Davis Noll - NYU Law
NYU Law
Current Issue
September-October 2024
Issue
5
Bethany A. Davis Noll

The Supreme Court ended the past term with a broadside against agencies. In four different cases, the Court made clear that federal agencies will be under intense scrutiny going forward.

The first case, Ohio v. EPA, had to do with cross-state air pollution. The rule requires upwind states to cut pollution that floats downwind by employing what EPA determines are the most cost-effective technological solutions. In some cases, that has meant simply turning on a control that had already been installed. In its holding, the Court scrutinized EPA’s decision and held that the agency had not addressed some of petitioners’ comments on the rule sufficiently. But Justice Barrett, in dissent, faulted the court for nitpicking the EPA decision. According to her, the agency had not made that error and on top of that, the “alleged procedural error . . . likely had no impact on the plan.”

Ohio had another problem. It came up on the shadow docket, on a motion for a stay before any lower decision. The Court has been criticized before for issuing one-line decisions on the shadow docket, without having the benefit of full briefing and argument. With this case, the Court seems to have heard some of that criticism. It did hold oral argument before issuing a full opinion on the rule. But that did not fully resolve the issues that arise with shadow docket decisions. As Barrett explained in her dissent, the Court granted emergency relief in a “fact-intensive and highly technical case without fully engaging with both the relevant law and the voluminous record”—leading to the errors she highlighted in her dissent.

The second case, SEC v. Jarkesy, was about enforcement, specifically the Security and Exchange Commission’s attempts to pursue civil penalties against individuals for securities fraud. The Court held that the Seventh Amendment guarantees a right to a jury trial in an Article III court in those cases. This decision might affect other enforcement at other agencies that have similar penalties, including EPA. Justice Sotomayor explained this potential impact in her dissent. She also criticized the Court for taking “a wrecking ball” to “settled law and stable government practice” at all those agencies.

The Court did not stop there. In Loper Bright Enterprises v. Raimondo, a highly anticipated case, the court overruled one of the most-cited administrative law decisions of all time: Chevron v. Natural Resources Defense Council. The Court decided Chevron unanimously in 1984 in a case where it upheld an industry-friendly, Reagan-era EPA rule. In Chevron, the justices held that courts should defer to an agency’s interpretation of a statute if the statute was ambiguous and the interpretation was reasonable. This holding recognizes that agencies have a certain amount of expertise that they can apply to problems Congress asks them to fix. In Loper Bright, the Court made a big deal about the fact that the Chevron doctrine required courts to defer to an agency even if the court disagreed with the agency’s interpretation. According to the Supreme Court, it is the court’s job to figure out the “best reading” of the statute.

In the process, the Supreme Court also may have fueled challenges that will ignore agency expertise. Interestingly, as Richard Pierce pointed out in a Regulatory Review piece, Loper Bright may also make it more difficult for agencies to justify a change in course, including as a result of a change in administration. Once a court has ruled on that “best reading,” a new administration will be hard pressed to change it.

In the fourth decision, Corner Post v. Board of Governors, the Court authorized challenges to agency rules long after the ordinary statute of limitations of six years has run. In Corner Post, a plaintiff challenged a 2011 regulation, which had already survived a court challenge. The Court allowed Corner Post to sue anyway because its injury was more recent. That was true only because Corner Post did not even exist when the rule was finalized. The implications are that regulated entities could come into existence simply to facilitate challenging a long-standing regulation.

The combination here is: nitpicking (from Ohio), a requirement that agencies enforcing the law will have to pursue jury trials for civil penalties (Jarkesy), no deference for agency expertise even if the relevant statute contains broad and ambiguous terms (Loper), and an open field on bringing lawsuits against long-standing regulations (Corner Post).

That combination will make it harder for agencies to face the problems that Congress wanted them to face. They also might make it harder for a new president to use those same agencies to pursue his or her regulatory priorities. We shall see how this all plays out.

At End of Term, Court Pummels Agencies in Four Landmark Cases

Major Questions Doctrine May Not Be What Administrative Foes Seek
Author
Bethany A. Davis Noll - NYU Law
NYU Law
Current Issue
July-August 2024
Issue
4
Bethany A. Davis Noll

Regardless of what happens with the Chevron cases in the Supreme Court this term, both undecided at press time, the related Major Questions Doctrine will continue to be a weapon of choice against administrative actions implementing environmental laws. But will those challenges succeed?

The Supreme Court first announced the MQD in 2022 in West Virginia v. EPA. The doctrine allows courts to overrule administrative actions if they can describe them as significant for political or economic reasons—hence, addressing "major questions." In order to defeat the challenge, an agency needs to point to clear congressional authority to address that question in the specific way that the agency chose.

This summer, in the consolidated cases of Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, the Supreme Court will decide whether to overrule Chevron, the 1984 decision that created a doctrine in which courts should defer to an agency’s expertise if the relevant congressional authorization is ambiguous. But whatever happens with the Chevron cases, a court can ignore it anyway by finding a major question is involved.

Natasha Brunstein of New York University Law School recently surveyed cases that cited West Virginia between June 2022 and October 2023 for an article in the Administrative Law Review. She described cases about guns, visas, hydrofluorocarbons, elections, nuclear storage, student loans, and protections for tipped employees. More recently, the doctrine came up in cases about sentencing, a minimum wage rule, and cryptocurrency.

Brunstein describes interesting trends. For example, courts have been deciding these cases along ideological lines. Brunstein surveyed 21 cases where judges addressed the doctrine in challenges to a Biden-era agency action or executive order. In eight, Democratic-appointed judges upheld the actions. In nine, Republican-appointed judges struck down Biden-era actions under the doctrine. Going against this trend, there were three cases where a Republican-appointed panel or judge upheld the Biden-era action at issue. And one case in the group was decided on other grounds.

Another trend is that the doctrine is not bounded by any criteria. Brunstein’s survey shows that courts have looked at a grab-bag of factors. But no court has established that certain factors are always required. And judges have not even been consistent across cases that they personally decided.

The factors include whether the issue has received congressional attention, the relevant statute was old, or that the issue was “highly controversial.” Other factors were the expense of the program, the benefits, and the presence or lack of a record regulating in that space. This grab-bag can only have enabled the ideological decisionmaking that has been on display.

The trend may nonetheless be tilting against an indiscriminate application of the MQD based on partisan preference, as more courts reject the challenges to agency actions. In the recent minimum wage rule case Bradford v. Department of Law, a majority Republican-appointed panel on the 10th Circuit rejected a MQD challenge. The petitioners argued the doctrine should apply because the rule will cost employers billions of dollars. The court found that Congress had given the agency broad authority to regulate in that area and that there was nothing new about the type of regulation at issue.

The recent sentencing case United States v. White was decided by another majority-Republican panel, this time on the 7th Circuit, and that panel also rejected the MQD argument. After explaining that the “contours of the doctrine remain hazy,” the court held that the sentencing commission both had discretion in formulating the challenged guidelines and had authority to make the decision, thanks to a statute that authorized it to “establish sentencing policies.”

Another court rejected the MQD argument recently in an enforcement case that the Securities and Exchange Commission brought against Coinbase, a crypto-asset trading platform. Coinbase claimed that the doctrine applied because the SEC was seeking to regulate an industry worth $1 trillion. While crypto is new, the court found that “the challenged transactions fall comfortably within the framework that courts have used to identify securities for nearly eighty years.”

The irony is that parties in the Chevron cases this term, including West Virginia, whose 2022 suit against EPA led to the propounding of the MQD, want the Court to overrule the 1984 precedent because it has caused “widespread confusion and wildly different approaches.” They argue that courts should not be left “to their own devices to figure out how to apply it.” As this review of the MQD cases shows, those are the exact circumstances that are on display already with the new doctrine.

Major Questions Doctrine May Not Be What Administrative Foes Seek.

Court Thwarting Needed Executive Actions
Author
Abigail Dillen - Earthjustice
Earthjustice
Current Issue
March-April 2024
Issue
2
Parent Article
The Capture of the Court
Abigail Dillen

Regulatory action that delivers on the protective mandates of our bedrock environmental laws has never been more important. As unyielding planetary deadlines bear down on us, our government must rise to the intertwined challenges of climate change, water shortages, mass extinction of species, and intensifying social injustice. But the president’s authority to act is coming under concerted attack from the Supreme Court’s conservative majority, which is rapidly destabilizing administrative law and the assumptions that underlie our modern government.

In West Virginia v. EPA, the Supreme Court enshrined what Justice Kagan calls the “made-up” major questions doctrine. In essence, this new clear statement rule invites judges to restrict executive authority to implement broad congressional mandates whenever the political or economic stakes are high. Last term, in Sackett v. EPA, the Court fashioned yet another clear statement test and applied it with devastating implications for water and wetlands, as even Justice Kavanaugh underscored. This term, in Loper Bright Enterprises v. Raimondo, the Court’s conservatives are likely to go further still, shrinking agency discretion to resolve statutory ambiguities under Chevron and enlarging the federal courts’ purview to prescribe the contours of permissible regulation. In other words, the high court is creating new judicial tools to block regulatory action that is urgently needed in a time of crisis.

This legal sea change is shifting the calculus for agencies that may pursue less protective policies in hopes of avoiding “major question” problems, which may be unavoidable depending upon the subjective preferences of individual judges. For the Biden administration, which needs to partner with the private sector to drive the transition to a cleaner economy, there is already enormous pressure to accommodate industry preferences in the regulatory context. The major questions doctrine magnifies that pressure, especially before courts that are inclined to replace agency deference with deference to industry. This dynamic obviously invites regulatory capture.

Since the 1940s, Congress has legislated on the premise that it can pass broad statutory mandates that will be implemented by expert agencies that, in turn, make law and policy judgments to administrate effectively. That practical reality animates the Administrative Procedure Act and the customary deference that courts have long afforded agencies. The courts have recognized that presidential administrations, unlike judges, are accountable for that oversight at the ballot box.

President Biden campaigned on a platform that promised strong and swift action to address climate change. To keep his promise, he must compel the overdue cleanup of dirty industries by the end of the decade. When the Supreme Court erects barriers to climate action, it is insulated from political consequences. In contrast, the president may pay for the government’s failures to keep people healthy and safe.

Of course, it is essential that judges take an independent “hard look” at agency actions to ensure they advance statutory purposes and comply with the APA’s reasoned decisionmaking requirements. When presidents run afoul of statutory mandates or seek to roll back environmental protections unlawfully, the courts are the only check on that abuse.

But that core responsibility is not motivating the Supreme Court’s recent decisions. Rather, the Court is encouraging judges to apply new tests that are biased against regulatory action. In the absence of agency deference, the arguments presented by the best-resourced litigants will have even more sway. In the environmental context, those are typically polluting industries.

The Biden administration is finalizing an important suite of regulations that are based on well-settled statutory authority. Judges can and should uphold these new rules to the extent they are supported by strong evidentiary records and legal arguments. Until very recently, a responsible administration could be confident in its chances of prevailing in court. Now, as the Supreme Court grabs more power and invites lower courts to exercise it with less restraint, the future is uncertain.

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