Courts | Environmental Law Institute

Major Questions Doctrine May Not Be What Administrative Foes Seek

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Bethany A. Davis Noll - NYU Law

NYU Law

Current Issue

July-August 2024

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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

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Author

Abigail Dillen - Earthjustice

Earthjustice

Current Issue

March-April 2024

Issue

Parent Article

The Capture of the Court

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.

Originalism, Democracy, and Environment

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Author

Sarah E. Hunt - Joseph Rainey Center for Public Policy

Joseph Rainey Center for Public Policy

Current Issue

March-April 2024

Issue

Parent Article

The Capture of the Court

The real potential for an originalist Supreme Court to use this year’s Loper Bright Enterprises v. Raimondo litigation to overturn the 1984 Chevron v. NRDC decision is flaring intense legal discourse. Critics posit that such a move will undermine environmental protections. An originalist Supreme Court, however, even in the absence of Chevron deference, is not inherently antithetical to environmental protection. Instead, an originalist framework, correctly utilized by the court, can foster a more robust, democratically accountable, and legally sound structure for environmental protection.

Originalism, the judicial philosophy advocating for interpreting the Constitution as understood at its enactment, often aligns with conservative legal thought and the Federalist Society, an organization with which six of nine court members affiliate. While this approach might appear to constrain modern environmental regulation, it inherently respects the separation of powers, a cornerstone of American constitutionalism. At a time when concerns are growing within the legal academy about the risks authoritarianism increasingly poses to our democracy, a court committed to protecting the separation of powers is vital. By adhering to the text of the Constitution and statutes as written, the Court promotes our democracy by providing oversight for the executive. The Roberts Court has shown, time and again in recent years, its willingness to stick to guiding principles at the expense of conservative political interests in a range of cases. These include declining an opportunity to weaken or overturn Massachusetts v. EPA.

An originalist Court’s rigorous review of regulation should serve as a crucial check on executive power no matter who occupies the White House. By ensuring that agencies do not exceed their statutory authority, the Court upholds the principle of checks and balances.

If the Roberts Court overturns Chevron, it will signal a shift from the dominance of agency interpretation to a more rigorous judicial review of regulations. This change does not necessarily spell doom for environmental protections. Instead, it ensures that agencies like EPA base their actions on clear statutory mandates and sound legal grounding, thereby enhancing their legitimacy.

If agencies can no longer rely on broad interpretations of ambiguous statutes, Congress must craft more straightforward, more precise environmental legislation. This shift will place the responsibility of environmental policymaking in the hands of elected legislators, hopefully fostering greater public participation and debate in shaping these policies. While democracy is often messy, environmentalists seeking durable, equitable environmental protection laws must embrace the challenge of building consensus in legislative chambers, regardless of what the court does with Chevron.

Originalism and textualism can ensure that significant government policies emerge from the legislature, the branch most accountable to the people. This is a feature, not a bug—especially in the environmental protection context. Bipartisan efforts like the Infrastructure Investment and Jobs Act are more stable and less challenged in the courts than policies perceived as partisan, such as the now-defunct Clean Power Plan or the Inflation Reduction Act.

The courts and agencies are neither the singular nor best hope for American environmental stewardship. There are now 83 members of the Conservative Climate Caucus in the House. Senator Bill Cassidy (R-LA), inspired by a resolution calling for a federal pollution tariff that the Republican-controlled Louisiana legislature passed unanimously in 2023, recently introduced legislation to enact a federal carbon border adjustment fee.

Overturning Chevron would not be a threat to environmental protection. Instead, it will allow Americans to strengthen the legal foundation of environmental regulations, enhance democratic accountability, and respect the separation of powers.

The Capture of the Court

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Author

Robert Percival - University of Maryland Francis King Carey School of Law

University of Maryland Francis King Carey School of Law

Current Issue

March-April 2024

Issue

Beginning in 1970, Congress enacted a remarkable set of laws designed to provide comprehensive protection for the environment. These laws mandated that federal agencies establish regulatory programs to carry out the new statutes. The federal courts initially played a major role in the development and implementation of the pollution and resource laws and the regulatory programs they created. As a result, the United States today enjoys far better environmental quality than most of the rest of the world, and millions of American lives have been saved.

Enduring public support for environmental protection has made federal environmental law remarkably durable. With Congress now paralyzed by partisan gridlock, the judiciary has become the battleground for environmental controversies. But in recent years the Supreme Court has been captured by a super-majority of justices hostile toward environmental regulation and the administrative state in general. These jurists have manufactured new legal doctrines to reinterpret the environmental laws in ways that significantly reduce their scope and effectiveness, contrary to the protective vision of the congressional drafters.

In 2016 the Court used its “shadow docket” in an unprecedented 5-4 order to block EPA’s Clean Power Plan before any court had even reviewed its legality. In 2018 Chief Justice Roberts issued an order to prevent the Juliana youth climate lawsuit from going to trial. In 2022 the Court’s conservatives dealt a blow to the Clean Air Act in West Virginia v. EPA, using the new “major questions doctrine” to strike down EPA regulations to control greenhouse gas emissions from existing power plants. Last year, in Sackett v. EPA the Court drastically restricted the reach of the Clean Water Act’s programs to protect wetlands. The Court has nearly complete control over the cases it chooses to hear, and its current docket reflects a right-wing agenda that more readily embraces claims by property owners and religious groups than victims of environmental harm. This article traces the roots of the Court’s capture by anti-environmental interests.

I served as a law clerk to Supreme Court Justice Byron R. White during the 1979-80 term. At the time the Court did not have clear ideological divisions, making it difficult to predict how particular cases would be decided. Only William Rehnquist had a clear conservative agenda to limit federal power, which made White extra vigilant whenever memos circulated from Rehnquist’s chambers.

In 1978, Rehnquist had tried to summarily reverse a decision to halt the completion of the Tellico Dam to protect an endangered species of fish. He circulated a draft per curiam reversal that initially garnered the support of five justices. But when the five could not agree on a rationale for reversal, the Court agreed to hear oral argument. Afterwards, two of the justices switched their votes, producing the landmark TVA v. Hill decision protecting the snail darter and giving teeth to the new Endangered Species Act.

In 1980, Rehnquist did obtain summary reversal of an important National Environmental Policy Act decision, Strycker’s Bay Neighborhood Council, Inc. v. Karlen. But Rehnquist’s effort to revive the non-delegation doctrine and strike down the Occupational Safety and Health Act in the Benzene case—more formally known as Industrial Union Dep’t, AFL-CIO v. American Petroleum Institute—garnered not a single vote from the other justices.

In 1985 all justices joined White’s opinion in United States v. Riverside Bayview Homes. This decision held that the “waters of the United States” to which the Clean Water Act applied included wetlands located near a lake in Michigan. White wrote that “on a purely linguistic level, it may appear unreasonable to classify ‘lands,’ wet or otherwise, as ‘waters.’” But he noted that “such a simplistic response . . . does justice neither to the problem faced by the Corps in defining the scope of its authority under Section 404(a) nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat.”

In 1986, Antonin Scalia joined the Court. While serving as a judge on the D.C. Circuit, he had authored a law review article declaring that “strict enforcement of the environmental laws” might be “met with approval in the classrooms of Cambridge and New Haven, but not in the factories of Detroit and the mines of West Virginia.” Scalia mocked the assertion by fellow D.C. Circuit Judge J. Skelly Wright that the judiciary had a duty to see that the important purposes of the new environmental laws “are not lost or misdirected in the vast hallways of the federal bureaucracy.” Scalia, however, wrote, “Lots of once-heralded programs ought to get lost in vast hallways or elsewhere,” describing it as a “good thing” and likening the environmental laws to Sunday blue laws, honored in the breach. Scalia’s article was never mentioned during his confirmation hearings. He was approved by a vote of 98-0 on the same day that Senate confirmed Rehnquist to succeed Warren Burger as the new chief justice.

With the retirement of Justice Lewis Powell in 1987, the confirmation process became more contentious. The Senate rejected the nomination of Robert Bork by a vote of 58-42. President Reagan’s second nominee, D.C. Circuit Judge Douglas Ginsburg, was forced to withdraw after it was reported that he had smoked marijuana with students while teaching at Harvard Law School. In 1988 Justice Anthony Kennedy was confirmed after three days of hearings by a vote of 97-0.

With Rehnquist as chief justice, the Court showed renewed interest in property rights cases, but the outcomes were not predictable. During three decades on the Court, Rehnquist voted with the property owner in nine out of ten regulatory takings cases he participated in, while Scalia voted with the property owner in ten out of twelve. By contrast, Kennedy voted with the property owner in only six out of ten cases, but as the swing justice he was in the majority in all ten of them. Scalia’s greatest triumph in strengthening property rights came in 1992 with the creation of a new category of per se takings in Lucas v. South Carolina Coastal Council: when regulation deprives a property owner of all economically viable use of real estate. However, this decision proved largely symbolic, as instances of total regulatory wipeouts are rare.

A major change in the ideological balance of the Court occurred when liberal Justice Thurgood Marshall announced his retirement in 1991. Frequently quoted as saying that he intended to serve out his “life term” on the Court, Marshall was forced to retire due to ill health. President George H. W. Bush nominated the fiercely conservative Clarence Thomas to replace Marshall. Despite the fact that Democrats held a substantial 57-43 majority in the Senate, and the charges of harassment leveled by Anita Hill, Thomas was confirmed by a vote of 52-48, with 11 Democrats voting in the affirmative.

Still, when efforts to create important loopholes in the federal environmental laws were embraced by lower court judges, the Supreme Court turned them back. In June 1995 the Court in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon reversed a D.C. Circuit decision that would have greatly narrowed the reach of the Endangered Species Act. By a 6-3 vote the Court held that the ESA prohibits destruction of habitat and not just direct application of physical force on endangered or threatened plants and animals.

In 2001 the Court unanimously rejected a radical attempt to use the non-delegation doctrine to invalidate EPA’s tightening of National Ambient Air Quality Standards. In Whitman v. American Trucking Associations the Court, in an opinion by Scalia, held that the Clean Air Act’s directive to EPA to set a NAAQS to ensure an “adequate margin of safety” for health provided a sufficiently intelligible principle to guide agency discretion.

The beginning of a sea change in the process of selecting Supreme Court justices can be traced to President George W. Bush’s ill-fated nomination of White House Counsel Harriett Miers. In July 2005, Justice Sandra Day O’Connor announced her plan to retire. President Bush asked Miers to vet candidates to replace the first female justice. On July 19, Bush announced that he had chosen D.C. Circuit Judge John Roberts as O’Connor’s replacement. On September 3, Chief Justice Rehnquist died of complications from thyroid cancer. Bush then withdrew the nomination of Roberts to be associate justice and renominated him to replace Rehnquist as chief. Roberts was confirmed by a vote of 78-22 on September 29.

On October 3, President Bush then nominated his long-time friend Miers to fill O’Connor’s seat. Her nomination instantly sparked a backlash from those who wished to push the Court sharply to the right. Federalist Society leaders complained that she “was not one of us” and spearheaded an effort to convince Bush to withdraw the nomination. This campaign succeeded. On October 27, President Bush withdrew Miers’s name. Four days later, at the urging of Federalist Society leader Leonard Leo, Bush nominated Third Circuit Judge Samuel Alito to O’Connor’s seat. Leo organized a $15 million multimedia “political campaign” supporting confirmation. Alito was approved by a vote of 58-42 on January 31, 2006.

Alito’s confirmation left the Court split down the middle, with four conservatives, four liberals, and Kennedy as the swing justice. This split was well illustrated in June 2006 when the Court split 4-1-4 in Rapanos v. United States. The question in the case was whether a Clean Water Act permit was required to fill a wetland adjacent to the nonnavigable tributary of navigable waters. Led by Scalia, four justices endorsed a surprisingly narrow view of CWA jurisdiction, while four others said they would defer to the agencies and require a permit. Kennedy alone said the issue should be remanded to determine, on a case-by-case basis, whether any wetlands have a “significant nexus” to downstream navigable waters.

During his confirmation hearings as chief justice, Roberts had pledged to be a consensus-builder on the Court. While joining Scalia’s plurality opinion in Rapanos, Roberts authored a concurring opinion stating that if the agencies adopted new regulations more clearly defining what wetlands were covered by the CWA, such a rule would be entitled to deference. Because Kennedy’s was the deciding vote, his significant-nexus test became the focus of a new waters of the United States rule adopted by the Obama administration.

The greatest environmental victory of all time in the Court happened the next term, when Justice Kennedy joined the four liberals in Massachusetts v. EPA, holding that the agency has the authority under the Clean Air Act to regulate greenhouse gases and had not offered an adequate justification for refusing to do so. Chief Roberts in dissent would have wiped out standing for all climate litigation. Justice John Paul Stevens’s majority opinion for the 5-4 Court upheld the standing of states to sue EPA and rejected the excuses offered by the agency for not regulating GHG emissions. Kennedy’s vote was decisive, as it was in all 24 of the Court’s 5-4 decisions that session.

During his first term of office, President Obama made two appointments to the Supreme Court. In 2009, Obama nominated Second Circuit Judge Sonia Sotomayor to succeed retiring Justice David Souter. Sotomayor was confirmed by a vote of 68-31. In 2010, Obama nominated Solicitor General Elena Kagan to succeed retiring Justice Stevens. Kagan was confirmed by a vote of 63-37. These two appointments replaced justices with liberal voting records with jurists with similar views, maintaining balance on the Court.

An indication of conservative antipathy to EPA came in 2016, when the Court took the unprecedented step of staying EPA’s Clean Power Plan by a 5-4 vote. The Court had never before issued a stay of a regulation before it had even been reviewed by a lower court. Viewing the stay as a sign that the Supreme Court ultimately would strike down the regulations, lawyers for Oklahoma exulted that the CPP was “dead and will not be resurrected.” Four days later, Scalia died suddenly, making the stay his last vote.

Scalia’s death created the possibility of making the Court more sympathetic to environmental protection. Because any nomination had to be acceptable to Republicans, who held a 54-46 majority in the Senate, Obama nominated a moderate—D.C. Circuit Judge Merrick Garland—on March 16, 2016. But right-wing groups urged the Republicans to leave the seat open. A single anonymous donor contributed $17.9 million to the Judicial Crisis Network to fund an ad campaign urging Republicans to block consideration of the Garland nomination. Senate majority leader Mitch McConnell blocked all efforts to seat Garland, insisting that no nomination be reviewed until after the 2016 presidential election. With Hillary Clinton leading Donald Trump in the polls, some Republican senators argued for keeping Scalia’s seat open for years until a conservative became president.

During his first campaign, Trump vowed to appoint right-wing Supreme Court justices like Thomas and Alito. The Federalist Society,s Leo was asked to prepare a list of potential nominees. No moderates were to be included. As incoming White House counsel Donald McGahn explained, “There can never be another Sandra Day O’Connor.” The Judicial Crisis Network and other groups associated with Leo, including the Concord Fund, CRC Strategies, and others, are estimated to have received a total of at least $580 million to promote confirmation of right-wing judges and justices.

After Donald Trump was elected, editors of the Wall Street Journal urged the incoming president to have a Supreme Court nominee “on the runway” ready to take off after his inauguration. On January 31, 2017, Trump nominated Tenth Circuit Judge Neil Gorsuch to succeed Scalia. Gorsuch was confirmed 66 days later by a vote of 54-45 after Republican leaders exercised the “nuclear option” to allow a filibuster to be broken by only 51 votes instead of the previously required 60.

The confirmation of Gorsuch to replace Scalia did not immediately change the balance of power on the Court, which still rested with Justice Kennedy. In June 2018, Kennedy announced that he would retire. President Trump stated that he would choose the justice’s replacement from a list compiled by Leo. One of the people on the list was D.C. Circuit Judge Brett Kavanaugh. Kavanaugh had authored a controversial decision that struck down EPA Clean Air Act regulations to control interstate air pollution. In the 2014 EME Homer City case, Kavanaugh’s decision was reversed by the Supreme Court by a vote of 6-2, with only Scalia and Thomas dissenting. President Trump nominated Kavanaugh, who was confirmed by a vote of 50-48, after a Judiciary Committee hearing that included allegations of sexual assault.

In his first major environmental decision, Justice Kavanaugh was a moderating force like Kennedy had been. In County of Maui v. Hawaii Wildlife Fund, Kavanaugh joined Roberts and the Court’s four liberals in a 6-3 decision rejecting an attempt to create a huge exception in the Clean Water Act. The county of Maui argued that it did not need a CWA permit to dispose of its wastewater because it first was discharged into groundwater before emerging in the ocean. Noting that the CWA does not state that wastes have to be directly discharged into surface waters to require a permit, Kavanaugh joined Breyer’s majority opinion holding that discharges that were the “functional equivalent” of a direct discharge needed permits. Remarkably, dissenters Thomas and Gorsuch would have interpreted the CWA to enable polluters merely to pull their pipes out of the water to escape all permit requirements. Dissenter Alito would have required polluters to move their pipes a further distance away. As Breyer’s majority opinion noted, either interpretation would have opened a “large and obvious loophole” in the CWA.

The right-wing takeover of the Court was completed after liberal Justice Ruth Bader Ginsburg died of cancer on September 18, 2020. Eight days later President Trump nominated Amy Coney Barrett to the vacant seat. The daughter of a long-time lawyer for Royal Dutch Shell, Barrett declined to express views about climate change during her confirmation hearings. Despite Senate majority leader Mitch McConnell’s previous insistence that a new justice should not be confirmed in an election year, the Republican-led Senate rushed Barrett’s confirmation process and confirmed her by a vote of 52-48, one week before President Trump was defeated for reelection.

The editorial page of the Wall Street Journal has become “the Supreme Court whisperer,” lobbying the justices for outcomes preferred by Alito and Thomas. Six days before the leak of the Court’s Dobbs opinion overturning Roe v. Wade, the Journal published an editorial called “Abortion and the Supreme Court.” It predicted that Roe would be overturned by a 5-4 majority, with Alito writing the opinion. It opined that Roberts “may be trying to turn another justice” against overturning Roe and urged Kavanaugh and Barrett to resist such lobbying. Six days later the leak of Alito’s draft opinion in Dobbs confirmed the accuracy of the Journal’s information and may have solidified the 5-4 majority to overturn Roe, as the Court did on June 24, 2022. Despite calling Roe “an important precedent” during his confirmation hearings, Alito’s opinion in Dobbs declared it “egregiously wrong from the start,” It is fair to conclude that neither he nor any of the Trump justices would have been confirmed had they been honest about their views concerning abortion.

Six days after overturning the abortion precedent, the Court by a 6-3 vote struck down EPA’s Clean Power Plan in West Virginia v. EPA. Perhaps the most startling aspect of the case is that the Court granted review despite the Biden administration’s having abandoned the regulation. The six-justice conservative super-majority essentially said that it did not trust EPA’s promise not to reinstate the CPP.

Embracing what it called for the first time ever the “major questions doctrine,” the Court stated that any regulation of vast economic or political significance is valid only if it is supported by specific statutory language providing “clear congressional authorization” for it. Roberts, author of the majority opinion, indicated that even if there was no textual ambiguity in the statute, “mere textual plausibility” was insufficient to support regulations of economic significance. Of course, by its very nature, the Clean Air Act’s directive that EPA ensure healthy air quality throughout the nation requires the agency to issue regulations with such effects. As Kagan argued in her dissent, joined by Breyer and Sotomayor, the majority’s approach meant that an agency cannot “respond, appropriately and commensurately, to new and big problems.”

EPA had no desire to revive the Clean Power Plan because the GHG emission reductions it contemplated already had been achieved by market forces. Coal was used to generate only 18 percent of electricity in the United States in 2022, less than contemplated by the CPP. Thus, as the dissent argued, West Virginia v. EPA was essentially an “advisory opinion” telling EPA that the Court held the agency in low regard.

Last May, the Court in Sackett v. EPA reinterpreted the Clean Water Act to sharply restrict federal jurisdiction to protect wetlands. With the Court’s 4-1-4 split in 2006, Kennedy’s unilateral creation of the “significant nexus” test, requiring case-by-case assessment of the likely impact of filling wetlands on navigable waters, became the focus of efforts to assert federal jurisdiction.

The lower courts had little difficulty determining that the Sacketts’ property satisfied Kennedy’s significant-nexus test because there was substantial evidence that filling the lot would “significantly affect the integrity of nearby Priest Lake.” The Sacketts did not challenge the nexus finding, but argued that the Court should adopt the Scalia view that “waters of the United States” extend only to relatively permanent, standing, or “continuously flowing” bodies of water “forming geographic features.”

In its decision, the high court reinterpreted the Clean Water Act to sharply restrict federal jurisdiction to protect wetlands. Because all nine justices in Sackett rejected the Kennedy significant-nexus test, the Court was unanimous in reversing the lower court. But they split 5-4 with Kavanaugh joining the three liberals in arguing unsuccessfully against the majority’s exceedingly narrow interpretation of the reach of federal jurisdiction.

In his majority opinion Alito asserted that “the CWA can sweep broadly enough to criminalize mundane activities like moving dirt,” causing “a staggering array of landowners” to be “at risk of criminal prosecution or onerous civil penalties.” Alito then relied on dictionary definitions of “waters,” the very thing Justice White had warned against in the Court’s unanimous Riverside Bayview decision. He concluded that the waters of the United States over which the federal government has Clean Water Act jurisdiction include only “relatively permanent” bodies “of water connected to traditional interstate navigable waters” and wetlands with a continuous surface connection “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins. While the text of the CWA clearly authorizes regulation of wetlands “adjacent” to navigable waters, Alito interpreted “adjacent” to mean “adjoining.” A concurring opinion by Thomas, joined by Alito, even questioned the constitutional underpinnings of federal environmental law, arguing that the commerce power does not extend to protection of the environment.

Breaking with his other conservative colleagues, Kavanaugh joined the four liberal justices in criticizing the Court’s new test. Kavanaugh argued that “the Court’s “continuous surface connection” test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents.” He noted that this will damage environmental quality. “By narrowing the act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”

Criticizing Alito’s focus on the dictionary definitions of the terms “waters” and “adjacent,” Kagan argued that the majority created a “pop-up clear-statement rule” in order “to cabin the anti-pollution actions Congress thought appropriate.” Kagan observed that by making Congress’s intention only background noise, the Court has “appoint[ed] . . . itself as the national decisionmaker on environmental policy.” She noted that, taken together, West Virginia v. EPA and Sackett v. EPA “paint a picture of a Supreme Court that evinces a remarkable propensity for exerting its own policy preferences.” Perhaps the only virtue of Sackett is that, after 17 years of immense confusion generated by Rapanos, it clarifies the reach of federal jurisdiction—though in a way highly damaging to the environment.

When I served as a law clerk to Byron White 44 years ago, justices were quite concerned about maintaining the appearance of impartiality. “I have the loneliest job in Washington,” White once remarked, because he believed that he should not socialize with lawyers who eventually might be involved in cases that would come before the Court. Today, a vast network of right-wing organizations funded by dark money lavishes benefits on conservative justices while denouncing as illegitimate any efforts to require greater transparency.

Revelations that Thomas and Alito have enjoyed luxury vacations funded by right-wing activists have shaken public confidence in the Court. This practice is not entirely new. Scalia, who died of a heart attack at a luxury hunting lodge, had been the beneficiary of more than eighty free luxury vacations, some funded by the National Rifle Association.

Federal ethics regulations require the disclosure of substantial gifts to government officials, but the two justices claim they did not need to disclose their trips because they constituted “personal hospitality.” Effective in March 2023, the Judicial Conference of the United States clarified the definition of “personal hospitality” so that it does not cover private plane flights.

The editorial page of the Wall Street Journal has lashed out at journalists making the revelations, accusing them of trying improperly to influence the Court. When journalists at ProPublica contacted Alito to confirm that he and Leonard Leo had been the guests of billionaire Paul Singer on a trip to a fishing lodge in Alaska in 2008, the justice did not respond to them. Instead he published a vituperative op-ed in the Wall Street Journal entitled “ProPublica Misleads Its Readers,” which was published before ProPublica’s story. Alito argued that he did not know Paul Singer well, that his seat on the private jet otherwise would have been empty, and that he then was not legally required to disclose Singer’s largesse.

Thomas has received far more than free trips. His billionaire friend Harlan Crow paid his grand nephew’s tuition, and purchased his mother’s home from him and allows her to live there rent free. Another wealthy friend of Thomas apparently has forgiven a loan of $267,230 to allow him to purchase a luxury RV. In 2016, “a coordinated and sophisticated public relations campaign to defend and celebrate Thomas,” in Senator Sheldon Whitehouse’s telling in his book The Scheme, was launched. The campaign, which stretched on for years, included “the creation and promotion of a laudatory film about Thomas, advertising to boost positive content about him during internet searches, and publication of a book about his life.” The campaign was financed with “at least $1.8 million from conservative nonprofit groups steered by the judicial activist Leonard Leo.”

In a letter to Senator Sheldon Whitehouse (D-RI), Chief Justice Roberts on April 25, 2023, released a “Statement on Ethics Principles and Practices” that he said had been approved by all nine justices. It defines an “appearance of impropriety” as arising “when an unbiased and reasonable person who is aware of all relevant facts would doubt that the justice could fairly discharge his or her duties.” Responding to the Senate Judiciary Committee’s passage of a bill requiring the Supreme Court to adopt a code of conduct, Alito declared in an interview with the Wall Street Journal, “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.”

In mid-November, the Supreme Court released a Code of Conduct drafted by the justices. While it contains no procedure for public complaints or enforcement, it declares that the justices are to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

President Trump succeeded in adding three justices to the Court who were handpicked by now former Federalist Society leader Leonard Leo. Leo recently was rewarded for his efforts with an anonymous $1.6 billion contribution to expand his right-wing activism; the gift was later traced to billionaire Barre Seid. However, Trump recently rebuked Leo at a dinner at Mar-a-Lago because the Trump justices did not support efforts to overturn his election loss. Leo now laments that Trump’s actions make the appointment of the three judges look “so transactional.”

On November 30, the Senate Judiciary Committee voted on party lines to issue subpoenas to Leo and Crow. The subpoenas seek information concerning the extent of gifts the two have made to justices, particularly Thomas and Alito. Leo previously refused to turn over any information, claiming that he will not “bow to the vile and disgusting liberal McCarthyism that seeks to destroy the Supreme Court simply because it follows the Constitution rather than their political agenda.” Republican members of the committee tried to block the subpoena vote and then walked out when it was held. Following the vote Leo stated that he “will not cooperate with this unlawful campaign of political retribution.” Republican Senator John Cornyn (R-TX) declared that the Democrats had just “destroyed” the Judiciary Committee. The fierceness of their opposition itself raises questions.

The Supreme Court has been captured by a 6-3 conservative super-majority now engaging in a slash-and-burn expedition through federal environmental law. Three fierce conservatives—Thomas, Alito, and Gorsuch—question even the constitutional underpinnings of environmental law. Now the votes of at least two of the other three conservatives —Roberts, Kavanaugh, and Barrett—are the only restraints on this movement.

A ray of hope for environmental law is that a majority of the justices still appear committed to upholding principles of federalism. They repeatedly have rebuffed pleas by business interests to quash state climate litigation or state toxic tort judgments. This mirrors Chief Justice Rehnquist’s conscientious support of federalism principles even when they disadvantaged business interests (e.g., California’s moratorium on construction of nuclear power plants upheld in Pacific Gas & Electric v. State Energy Commission, or state restrictions on interstate disposal of hazardous waste struck down on dormant commerce clause grounds over Rehnquist’s dissent in Chemical Waste Management v. Hunt.

As the legal community mourns the death of retired Justice Sandra Day O’Connor on December 1, her legacy highlights how far the Court has swung to the right. O’Connor “was an avatar of change and progress, but she was also painstakingly centrist.” After her retirement O’Connor complained to a friend that “everything I stood for is being undone.” The current Court majority seems more interested in imposing its ideological views through raw power than decisions that are a product of reasoned argument over the law. No wonder public confidence in the Court is near an all-time low. For now, environmentalists must follow the advice of EarthJustice President Abbie Dillen and “lose loudly” when the Court issues decisions seeking to roll back environmental law.

COVER STORY A super-majority of justices hostile toward environmental protection has seized control of the Supreme Court, which once played a major and affirmative role in the development, implementation, and enforcement of pollution control and natural resources law.

A Do-Nothing Rule in the Court Threatens Much Agency Regulation

Read more about A Do-Nothing Rule in the Court Threatens Much Agency Regulation

Author

Bethany A. Davis Noll - NYU Law

NYU Law

Current Issue

November-December 2023

Issue

There aren’t many environmental disputes on the Supreme Court’s docket this term. But in one case the Court has granted certiorari on the question of whether it should overrule Chevron v. NRDC, one of the most important precedents in all of law.

The case involves an agency’s decision about implementing the Magnuson-Stevens Act. Congress passed that statute to “prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery.”

The statute directs the National Marine Fisheries Service to create fishery management plans, which include provisions for collecting data to be used to support the law’s overall goals. The agency promulgated a rule during the Trump administration requiring vessel owners to pay part of the cost of monitors who will collect the data, while also providing exemptions, waivers, and reimbursements that essentially eliminated the cost of the monitors.

Yet that payment requirement is what the case is about. A group of states, led by West Virginia, say that the agency “asserted power to force the family-owned and -operated fisheries it regulates to fund the agency’s invasive inspection program or else stop fishing.” And they complain that the lower courts sided with the agency simply because of the Chevron doctrine—a 1984 precedent that commands courts to respect an agency’s expertise in reasonably implementing ambiguous statutory language—while leaving the fishers “out of luck.”

Since that Supreme Court case was decided, Congress has set up countless regulatory programs where it has either tasked agencies with regulating within a very technical landscape, many of which are environmental statutes, or explicitly told them to exercise their judgment. For example, in an amicus brief led by Washington, D.C., a separate coalition of states points to statutes like the Natural Gas Act, which directs the Federal Energy Regulatory Commission to set rates for the sale of natural gas that are “just and reasonable.” In its brief, the U.S. government asked the Court not to overrule Chevron by pointing to the fact that Congress has legislated against the backdrop of the precedent for almost forty years. If Congress expected agencies to take certain interpretative steps because of the Chevron doctrine, then a court would threaten separation of powers principles by inserting itself into that decisionmaking role.

Interesting empirical research shows that Chevron has had some salutary effects. For example, Professors Kent Barnett and Christopher Walker explained in their brief that “Chevron reduces disagreements among federal courts over policy-laden judgments and thus promotes national uniformity.” They found that a nationwide interpretation of a statute is more likely to govern when a court applies the doctrine, as compared to the interpretations that come out of lower courts deciding on the “best reading” of a statute. They show that Chevron fosters agreement “across ideologically varied courts of appeals and panels.”

West Virginia’s argument against Chevron is that it is a “government-always-wins arrangement” that “feeds regulatory growth” with no limits. But in another amicus brief, Professor Thomas Merrill explains that the Chevron framework promotes “greater political accountability for regulatory policy”—and that any time Congress becomes concerned about too much agency discretion, it has the ability to restrict or eliminate that discretion. Merrill also explained that concerns about instability and bias can be addressed through existing doctrines that require agencies to consider reliance interests and follow strict notice-and-comment procedures whenever changing course.

In the Washington, D.C.-led brief, those states argue that the Chevron framework is needed for programs where the states are working together with the federal government to address complex scenarios that arise in the regulation of telephone companies, in addressing air pollution, or in issuing water quality standards. Chevron allows them to invest time and resources into their programs with the confidence that the federal agency’s regulatory decisions will be upheld as long as they are reasonable and in line with the clear language of the governing statute. Interestingly, West Virginia agrees that it is not helpful when “businesses must guess whether the agency’s action will be upheld.”

When there are either technical or complex challenges that Congress has instructed an agency to address, it is a troubling trend to see courts around the country make their own decisions about what Congress wanted. But recent data from the Pew Research Center show that only 25 percent of Democrats and 8 percent of Republicans say that they trust the federal government. Against that backdrop, this battle over how to interpret a fishing statute may not be that surprising. The question will remain how to rebuild that trust so that federal agencies can keep doing what we need them to do.

A Do-Nothing Rule in the Court Threatens Much Agency Regulation.

Equal Protection for All

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Author

Barry E. Hill - Environmental Law Institute

Environmental Law Institute

Current Issue

September-October 2023

Issue

There are “literally two Americas,” said Dr. Martin Luther King Jr., a community activist by nature and a spellbinding orator whose words still resonate today. “One America is flowing with the milk of prosperity and the honey of equality. That America is the habitat of people who have food and material necessities for their bodies, culture and education for their minds, freedom and human dignity for their spirits. That America is made up of millions of young people who grow up in the sunlight of opportunity.” But, Dr. King observed, “There is another America. And that other America has a daily ugliness about it that transforms the buoyancy of hope into the fatigue of despair.”

More than a half century later comes confirmation of Dr. King’s analysis in the form of a 2022 EPA-financed study showing that “Historical Redlining Is Associated With Present-Day Air Pollution Disparities in U.S. Cities.” Redlining was state-sponsored segregation—it was federal housing policy starting in the 1930s and was also implemented by state and local officials. The authors of the report demonstrate that historically redlined neighborhoods, in addition to a greater pollution burden today, still are more likely to have high populations of Black, Latino, and Asian residents. In short, the study reveals how racist federal housing policy continues to contribute to enduring inequalities across the United States more than fifty years after housing discrimination was made illegal under federal law.

Redlining was a discriminatory practice in which financial services—mortgages, insurance, loans, etc.—were denied to people who resided in neighborhoods classified as “hazardous” to investment. The federal government deemed these areas as places where property values were most likely to decline, and the areas were marked in red—a sign that they were not worthy of inclusion in homeownership and lending programs. Not coincidentally, most of the “hazardous” areas were neighborhoods where Black residents lived. Banks used these maps to determine where people were able to get loans, based on racial makeup, while real estate agents would only show certain houses to certain families.

Though the maps were internal documents that were never made public by the federal government, their ramifications were obvious to African Americans who could not get home loans that were backed by government insurance programs. Greater understanding of redlining became more prevalent during the Civil Rights Movement, especially in the era leading up to the passage of the Fair Housing Act of 1968. The act prohibits redlining—federal, state, and local government housing policies that explicitly segregated metropolitan areas nationwide in patterns that violated the Constitution.

Yet as the new EPA study shows, the settlement patterns created by redlining persist today—and that formerly redlined areas have greater environmental burdens and still experience “the fatigue of despair.” So, the question is, What remediation can be done today, using the Constitution, to address the environmental and public health concerns of those disproportionately impacted communities—neighborhoods who continue to suffer because of historical redlining? This article argues that a federal lawsuit from two decades ago, Miller, et al. v. City of Dallas, and the cutting-edge outcome of the 1997 Neighbors for a Toxic Free Community v. Vulcan Materials Company litigation in Denver offer litigators and affected communities some practical lessons on a forward course of action into the “sunlight of opportunity.”

EPA defines environmental justice as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. The agency’s definition is focused primarily on the issuance of permits and operation of pollution-generating facilities sited in affected communities. A special concern is the adverse impact on the health of residents who have been environmentally overburdened—exposed disproportionately to harms and risks compared with other communities.

To address their environmental and public health concerns, communities have sought to use the Equal Protection Clause of the Fourteenth Amendment, which reads that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” And “any person” means all persons. Disproportionately impacted communities have not succeeded, however, because of the difficulty in proving in court the discriminatory intent of the government actor(s) in the decisionmaking process. In 1972, the Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corp. delineated criteria to determine the intent of a zoning board entrusted with the task of making fair and impartial decisions. The Court concluded that although evidence of racially discriminatory intent is necessary to invoke a “strict scrutiny” analysis, the plaintiff must also show that it was a motivating factor in any decision involving a suspect or protected class. The Court stated that the plaintiff has the burden of showing that the official action affected a protected class in greater proportion than others, and that the official action was intended to discriminate against a suspect or protected class.

Consequently, applying the Arlington Heights criteria resulted in losses in several notable environmental justice cases because of issues related to the legal distinctions in proving discriminatory intent, discriminatory purpose, and discriminatory impact. This was the situation in spite of compelling statistical evidence presented by communities in the 1979 case Bean v. Southwestern Waste Management Corporation, the 1989 case East-Bibb Twiggs Neighborhood Association v. Macon-Bibb County Planning & Zoning Commission, and the 1991 case R.I.S.E. Inc. v. Kay, et al.

But, although a federal district court applied the Arlington Heights criteria, the 2002 result in the Miller v. Dallas case was markedly different. The African American residents of Cadillac Heights presented material facts that would likely prove that the city of Dallas intentionally discriminated against them by providing municipal services unequally based upon race, in violation of the Equal Protection Clause. The municipal services included flood protection, zoning, landfill practices, streets and drainage, protection from industrial uses, and federal funding for housing and community development. The residents offered material facts relating to discriminatory effects; the historical background of the city’s decisions; and Dallas’s departure from normal substantive criteria or standards.

The residents survived the city’s motion for summary judgment because they were able to show that there was a genuine dispute as to material facts, and that Dallas was not entitled to judgment as a matter of law on the claims or defenses raised in its motion. The district court judge determined that the case would proceed to trial. Following the court’s decision, the residents settled for money damages: the city paid $50,000 each to four plaintiffs for the purchase of their homes, and $35,000 each to two plaintiffs for the purchase of their homes. Dallas denied liability, and paid plaintiffs’ attorneys $265,000.

According to Professor Richard Rothstein’s comprehensive 2017 book The Color of Law: A Forgotten History of How Our Government Segregated America, in 1933, faced with a housing shortage, the federal government began a program to increase and segregate America’s housing stock. The government’s efforts were primarily designed to provide housing to middle and lower middle class White families in new suburban communities. Blacks and other minorities were pushed instead into urban public housing projects.

In 1934, the Roosevelt administration and Congress established the Federal Housing Administration. It implemented the government’s segregation efforts by refusing to insure mortgages in or near Black neighborhoods. At the same time, however, the FHA was subsidizing builders who were mass-producing entire subdivisions for Whites with the specific requirement that none of the homes could be sold to African Americans.

Dallas is an excellent example of how this state-sponsored system of segregation worked, in carving out the neighborhood of Cadillac Heights as a minority and low-income community—effects which did not stop with enactment of the Fair Housing Act. In 1950, of the small portion of Cadillac Heights for which census data are available, Tract 89 blocks 32, 33, 34, 35, 53, and 55, were White. Cadillac Heights rapidly became a minority residential area. In 1950, block 32 was zero percent non-White. By 1960, that block was 41 percent non-White. In 1950, Block 33 was zero non-White. By 1960, that block was 74 percent non-White. In 1950, block 34 was zero percent non-White. By 1960, that block was 78 percent non-White. By 1960, 74 percent of the occupied housing units in Census Tract 89 were occupied by non-Whites. The FHA was passed in 1968, banning redlining, but the change in ethnic makeup continued. The 1990 census population for Tract 89 was 82 percent Black and 18 percent Hispanic. The 2000 population for the Cadillac Heights Census Tract—the last census before the lawsuit—was 51 percent Black, 47 percent Hispanic. Pursuant to this systematic government program, local housing policies in Dallas mandated segregation. That’s where and how written and oral mistakes were made by city decisionmakers, demonstrating purposeful racial discrimination.

In Dallas’s motion for summary judgment, the city argued that the residents’ claims of intentional discrimination in the provision of municipal services under the Equal Protection Clause failed as a matter of law because they could not show that any violations of their federal rights were committed pursuant to a policy or custom of the city.

First, citing Arlington Heights, Dallas pointed out that the Supreme Court had made clear that “impact alone is not determinative . . . unless the impact is unexplainable on grounds other than race.” Thus, the residents could not establish a claim for the discriminatory provision of municipal services based solely on evidence of disparate impact. The residents’ mere recitation that some African Americans had been disparately affected by the city’s practices was insufficient to raise a genuine issue of material fact considering the city’s uncontradicted testimony explaining the nondiscriminatory basis for the disparity.

Second, Dallas argued that the residents must show that the city had “selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”

Third, Dallas argued that the residents had no genuine evidence that any of the city’s activities in their neighborhood were motivated by intentional racial discrimination. Instead, the plaintiffs tried to establish that the city had been “thoughtless” and “neglectful” of the neighborhood. Even if that were true, it is not enough to establish a violation of the Fourteenth Amendment.

Fourth, quotes from then-Mayor Ron Kirk, an African American, were not competent evidence sufficient to create a genuine issue of material fact in support of allegations of racial discrimination.

Fifth, the remainder of the residents’ case was based solely on questionable “evidence” of disparate impact. There are legitimate, nondiscriminatory explanations for Cadillac Heights’ situation. The residents have none of the evidence that is typically used to supplement evidence of statistical disparity, such as procedural or substantive irregularities, racially discriminatory statements by city officials, or evidence that similarly situated non-minority neighborhoods were treated differently.

In sum, because the neighborhood had no evidence of intentional discrimination, summary judgment was proper for the city.

The plaintiffs’ brief in opposition provided material facts, as well as the sources of those facts, that Dallas had a history of enforcing racial segregation in neighborhoods by ordinance through direct decisions of its city council. This segregationist tradition eventually led to such a severe shortage of housing deemed “available” for minorities that city leaders spent much of the l940s struggling to address what they called “The Negro Housing Problem.” Dallas’s proposed solution to the problem was implemented by annexation of Cadillac Heights and its designation for “Negro development.”

Furthermore, the city, through zoning ordinances passed by the council, had issued numerous permits to all manner of incompatible, noxious, and hazardous industries to invade and encircle the neighborhood. In the 1980s, when the council overhauled zoning citywide, the city refused to apply the changes to Cadillac Heights in order to keep the industries there. The official action by the council included the adoption of the Southeast Oak Cliff Master Plan that continued the pattern by rezoning the entire Cadillac Heights residential area to industrial. As an example, the City’s Board of Adjustment granted Dixie Metals the right to operate its lead smelter in Cadillac Heights.

Finally, it was the White city attorney Alex Bickley who made the decision to delay or deny enforcement of Dallas’s environmental protection ordinances. He and the council accepted settlements with the industrial polluters that allowed them to exceed the city’s own environmental standards.

In sum, the paucity of municipal services, the lack of flood protection, the incompatible zoning, and the absence of environmental protection were not being inflicted by neglect or by thoughtless city underlings. It was, in fact, the city council and its chief policymakers who officially set the course of action implemented by city employees. The Cadillac Heights residents were able to show that Dallas was not entitled to judgment as a matter of law on the claims or defenses raised in its motion for summary judgment.

It is true that a single federal district court decision more than twenty years ago denying summary judgment against the residents of Cadillac Heights has not led to sweeping legal change. But Miller v. Dallas offers an evidentiary framework for community organizations to use the Equal Protection Clause not only for securing equal municipal services but also for reallocating environmental benefits fairly through collaborative problem-solving. As Dr. King said, “Let us never succumb to the temptation of believing that judicial decrees play only minor roles in solving this problem. Morality cannot be legislated, but behavior can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless.”

Nonetheless, going to court on equal protection grounds may seem an odd recommendation, because community use of the Fourteenth Amendment to address environmental and public health concerns has been problematic due to Supreme Court decisions. The Court’s 1976 ruling in Washington v. Davis instituted the rule that impermissible discrimination under the amendment requires a showing of intent by the state actor(s), not simply of disparate impact. In 1977, the Arlington Heights decision established the criteria to determine whether invidious discrimination underlies an otherwise legitimate exercise of governmental authority.

But using the Arlington Heights factors as its framework for the decision, the district court judge determined in Miller the following material facts compelling. First, zoning for the neighborhood started as residential, but the area was curiously rezoned by the city for heavy industrial uses. Second, the city considered overt racial segregation as a legitimate policy goal for land use decisions through the 1940s and beyond. Third, the city knew that Cadillac Heights would be an industrial area when it designated the neighborhood for “Negro development.” In sum, Miller demonstrates that American cities with a written and oral legacy of racist land use practices may be vulnerable to class action lawsuits brought by community-based environmental justice organizations.

Additionally, residents living in communities of color can bring Equal Protection Clause actions to secure municipal services equal to those in White neighborhoods. In three notable cases—Baker v. City of Kissimmee (1986), Ammons v. Dade City (1984), and Dowdell v. City of Apopkaf (1981)—federal courts have held that the discriminatory intent standard was satisfied by evidence of the government officials’ knowledge of disparate impacts in the provision of municipal services.

Given the legal trends, and depending on the facts, residents living in communities of color should consider bringing class action lawsuits to address their environmental and human health concerns. And to do so from the perspective of using an equal protection argument in seeking an equitable allocation of environmental benefits going forward, which can be easier to establish. Environmental benefits in urban areas include drainage and waste systems; infrastructure that can reduce traffic congestion and improve public health; housing affordability for the poor; addressing environmental degradation; quality drinking water; access to nutritious food; and land security and safe shelter. These environmental benefits are controlled and managed by city decisionmakers who shall not “deny to any person within its jurisdiction the equal protection of the laws.”

Furthermore, I argue that using collaborative problem-solving could be even more effective in addressing the environmental and public health concerns of the greater Cadillac Heights community and similarly affected neighborhoods throughout the United States. And often, as the following example shows, collaborative problem-solving can evolve out of a lawsuit.

The 1997 Neighbors for a Toxic Free Community v. Vulcan Materials Company litigation in Denver serves as a case study. Following a toxic chemical spill in 1995, a nearby West Denver community sued Vulcan Materials Company, a chemical firm, for failing to comply with Section 326 of the Emergency Planning and Community Right-To-Know Act. The fire and release of chemicals caused a toxic cloud of muriatic and hydrochloric acid that covered the community, resulting in the evacuation of 300 people. While no one was injured, the community experienced tremendous disruption. Children at a local daycare center were sheltered at an unidentified location for hours while anxious parents were prevented from trying to find them. Members of the hazardous materials response team went door-to-door in moon suits.

In addition to providing emergency notices to government authorities, EPCRA requires a company to provide information to the local community emergency coordinator. After the facility failed to provide specific information to the residents regarding the event, the community brought a legal action under EPCRA’s citizen suit provision. The lawsuit was filed by Neighbors for a Toxic Free Community, formed by the residents in 1987 to address environmental problems caused by the many industrial facilities located in the West Denver area. The residents are of mixed heritage, mostly Hispanic, generally with low incomes and few economic resources.

Instead of responding directly to the residents’ allegations or providing the information that the community sought, the company replied that even if what the residents alleged were true, the court had no jurisdiction to hear the civil complaint and should dismiss the case for the residents’ lack of standing. The district court rejected the motion for summary judgment, finding that the residents had standing to bring their suit, and scheduled the case for trial. Notably, this was the first time that a nongovernment entity was deemed to have standing to bring a citizen suit against violators of EPCRA.

At this point, attorneys for Vulcan Materials recommended that a collaborative approach, through a mediator, might offer the most favorable outcome for both the company and the residents. Going into the mediation, the company’s primary goal was to avoid the expense of trial and a potentially adverse legal precedent.

In the mediation, residents stated that their requests for information about the potential adverse health effects of the accident, which had gone unanswered, combined with the handling of the spill by Denver and the company, had left the community “feeling discounted and disrespected . . . [and that] this might be one more instance of a company being unwilling to respond to a low-income community of color.”

Company managers, speaking directly to neighborhood leaders rather than through lawyers, apologized for the spill and the community’s treatment. They explained the circumstances that led up to the release and the lessons that Vulcan had learned. Moreover, company officials described new precautions that would further reduce the chances of a similar release and the steps that would be followed both locally and companywide to ensure a more appropriate response should a release occur. Company managers also offered to establish an ongoing dialogue with the residents to improve the flow of information between the company and the surrounding neighborhood.

Finally, company officials described their feelings of being isolated from the surrounding residents. They shared about not knowing how to access community leaders. They expressed concern that the safety of chemical tanks and employees were in danger, as gunshots had been fired at the tanker cars by intoxicated individuals. The possibility of tankers exploding because of errant gunshots was a mutual concern of both the company and the community. In turn, having heard Vulcan Materials acknowledge responsibility and state its desire to engage the community for assistance, the residents saw a chance to transform the conflict into an opportunity.

Company representatives stated that they would be willing to work with the neighbors to improve relations and the level of communication. The residents, in turn, said that they would be willing to work with the company to help “teach” officials how to work proactively with other host communities of its facilities and operations across the country. Based on this greater understanding of mutual interests, which extended beyond those at issue in the litigation, the community and the company negotiated a set of principles upon which a Good Neighbor Agreement would be based.

Not all cases are appropriate for a structured mediation process. Rather, the West Denver outcome elucidates the value of collaborative problem-solving between two opposing stakeholders as a means of developing pragmatic, mutually beneficial solutions that are tailored to the fact-specific situation, and improved relationships going forward.

Dr. King reminded us that the “arc of history is long, but it bends toward justice.” As these examples show, communities can seize the initiative and use the courts and direct negotiations on the road to “equal protection of the laws” for all. TEF

COVER STORY Communities have not been able to prove discriminatory intent in inequitable environmental burden cases, but they may be successful in securing equitable environmental benefits by using the laws effectively and by engaging in collaborative problem-solving.

Green Amendments: Lessons From Hawai’i, New York, and Montana

Read more about Green Amendments: Lessons From Hawai’i, New York, and Montana

Author

Bethany A. Davis Noll - NYU Law

NYU Law

Current Issue

September-October 2023

Issue

Green amendments are sprouting up in state constitutions around the country and are starting to be tested in court. These provisions generally guarantee a right to a clean and healthy environment and, if recent cases are any indication, they may have teeth.

In a case earlier this year, the Hawai'i Supreme Court relied on the state’s constitutional right to a “clean and healthful environment” to reject a greenhouse-gas emitting project. In that case, Hawai'i Electric Light Company had asked the state Public Utilities Commission to approve a power purchase agreement with Hu Honua Bioenergy, LLC. Under the agreement, Hu Honua was planning to use an abandoned power plant to burn trees to create energy and sell the energy to Hawai'i Electric, thus creating an ostensibly renewable biomass power source.

A local community group challenged the agreement, and the commission held a hearing where it found that the new facility would generate significant greenhouse gas emissions through trucking and then burning the trees. The company claimed it would plant trees to offset the emissions, but the commission found those claims were based on speculative and doubtful evidence. The commission rejected the agreement, holding that the project was not in the public interest.

Hu Honua challenged this decision in an appeal to the state’s Supreme Court. The court rejected all of the company’s arguments—relying expressly on Hawai'i’s constitutional guarantee of a “clean and healthful environment.” The company had argued that the commission erred because it was required to compare the biomass project to emissions from a fossil-fuel-fired plant, rather than look at the project’s greenhouse emissions compared to either another renewable project or a baseline without the project, as the commission did. Under state law, the commission is required to consider the need to reduce the state’s reliance on fossil fuels. But the court found that this requirement did not translate into a rule that the biomass project be compared only against a fossil-fuel-fired plant. As the court explained, that would have meant ignoring emissions from this fuel source—and ignoring such significant emissions just because a source was considered “renewable” would undermine the constitution’s goal of preserving a “life-sustaining climate system.”

In a concurring opinion, Justice Michael Wilson also cited the Hawai'i constitution’s due process right to “life, liberty, [and] property” as a basis to uphold the commission’s decision. As Wilson explained it, if the commission permits projects that increase emissions, “it will be contributing to the destruction of resources essential to public health and Hawai'ian culture, which in turn undermines all fundamental rights guaranteed by the Hawai'i Constitution.”

There are several other states with “green” constitutional provisions that are similar to Hawai'i’s. In those states, court cases are beginning to test the limits and scope of the provisions. In New York, for example, the state constitution was recently amended to provide that “each person shall have a right to clean air and water, and a healthful environment” and several lawsuits have been filed under the new amendment. In one of the recent cases, Fresh Air for the Eastside, Inc. v. State of New York, the plaintiffs have argued that the state’s failure to control odors and fugitive emissions from the High Acres Landfill violated their rights under the constitution. A trial court recently rejected all of the state’s arguments for dismissing the case, holding that the amendment is self-executing, and allowing plaintiffs to proceed with their challenge. To track the many other cases pending in New York, Pace Law School has created an Environmental Right Repository with helpful updates.

In Montana, the state constitution has guaranteed a “clean and healthful environment . . . for present and future generations” since the 1970s. Now several young plaintiffs have sued the state, arguing that Montana is violating their rights by authorizing fossil fuel projects that contribute to increased greenhouse gas emissions. The case, Held v. Montana, recently went to trial and a decision is likely to come out later this summer.

The Hu Honua decision highlights another important legal frontier in environmental law at the state level. Utility regulators regularly make decisions like the one in the Hawai'i case that will have a significant impact on greenhouse gas emissions. Yet proceedings in front of these regulators are often not focused on environmental impacts, but rather on evidence about rates and other factors. With commissions like Hawai'i’s now more focused on critically examining the environmental impact of new energy projects and the growing trend of constitutional rights bringing those impacts into focus, there is likely to be a lot more of this kind of state-level litigation to come.

Green Amendments: Lessons From Hawai’i, New York, and Montana.

The High Court’s Environmental Docket Continues to Make Waves

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Author

Bethany A. Davis Noll - NYU Law

NYU Law

Current Issue

July-August 2023

Issue

The Supreme Court decided two cases in May that will have profound implications for environmental protection around the country, Sackett v. EPA and National Pork Producers Council v. Ross.

The first is about whether the Sacketts can build a house on wetlands under the Clean Water Act’s protections, and is a startling attack on congressional authority. The CWA gives the federal government jurisdiction over “navigable waters” and defines that term as “the waters of the United States.” In a provision which divvies up permitting authority between the federal government and the states, the statute makes clear that “adjacent wetlands” are included.

Justice Alito wrote the majority decision. It holds that waters of the United States are, first, “relatively permanent, standing, or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes” and, second, that wetlands must have a “continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.” The wetlands on the Sackett property do not satisfy this test.

In concurring opinions, authored by Justices Kavanaugh and Kagan (where they concurred in the judgment about the Sackett property only), the two accuse the majority of blatantly rewriting the CWA. As they both explain, the majority admits that some wetlands must qualify. But rather than stick to the word “adjacent,” which is in the act, the Court goes for something like “adjoining” instead. Those two concepts are different. An adjacent wetland might be nearby a river, but it may lack the required “continuous surface connection with that water” if it is separated from the navigable water by a natural or artificial barrier such as a dike.

This change poses a threat to water quality and flood prevention around the country, as Kavanaugh laments. For example, wetlands on the other side of a levee along the Mississippi River, but which are crucial to flood prevention, will be unprotected. He also explains that the new definition will not provide any additional clarity about which waters are regulated. Without a scientifically moored understanding of the connections between different waters, these questions will persist.

On that topic, the majority opinion rejects EPA’s “policy arguments about the ecological consequences” of its decision, explaining that the CWA “does not define the EPA’s jurisdiction based on ecological importance.” But that again ignores the text of the statute, where Congress explained that the act’s primary purpose is to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters.” James McElfish wrote in the ELI blog that it will now be up to states to protect wetland, but there are difficult hurdles there.

In the other big case Pork Producers, hog raisers challenged California’s new program forbidding them from selling pork that was raised inhumanely, invoking the “dormant Commerce Clause.” That doctrine is a gloss on the Constitution’s Commerce Clause and holds (in simplified terms) that states cannot intrude on areas of interstate commerce or regulate outside of their borders. According to petitioners, California violated that doctrine because the program would affect how pork producers in states like Iowa and North Carolina raised their pigs, if they planned to sell in California.

The case presented a threat to many state laws and policies, including health and safety laws as well as programs that encourage renewable energy because all of them can have extraterritorial effects. The Court agreed and, in an opinion authored by Gorsuch, relied on that point to reject the challenge.

One section of Gorsuch’s opinion, joined by only Thomas and Barrett, did not have majority agreement, but it is interesting to read now in light of their later votes in Sackett. The section addresses a doctrine that has developed under Pike v. Bruce Church, Inc. That case instructs courts to balance the burden on interstate commerce with the “putative local benefits” before striking down the state law under the dormant Commerce Clause. The three justices (all of whom would later sign the majority decision in Sackett) explain that they will not strike down California’s program under that doctrine, because policy choices about moral or health issues “usually belong with the people and their elected representatives.” They point out that if Congress would like to regulate pork production and preempt California’s program, it can. And in their view, Congress is “better equipped” than the Court to “identify and assess all the pertinent economic and political interests at play across the country” for purposes of adopting a uniform nationwide rule. Now refer back to Sackett, where Kagan accuses the majority of adopting a “reflexive response to Congress’s enactment of an ambitious scheme of environmental regulation.” Given the later language in Pork Producers, she may be right.

The High Court’s Environmental Docket Continues to Make Waves.

Not an Afterthought: Remedies Receiving Their Day in Court

Read more about Not an Afterthought: Remedies Receiving Their Day in Court

Author

Bethany A. Davis Noll - NYU Law

NYU Law

Current Issue

May-June 2023

Issue

There is news in the world of remedies for agencies that violate the law. These developments could have repercussions for any incoming president seeking to roll back the prior administration’s policies, as well as implication for parties seeking to avert environmental harms. The new federal court decisions span the powers of remand (sending the rule back to the agency to reconsider), vacatur (wiping the agency rule off the books), and related appeals. It is time for an update.

Two recent decisions in the Ninth Circuit have held that courts may not vacate a rule prior to issuing a decision on the merits. Both cases had to do with Trump-era rules that were still sticking around: a rule restricting state power under section 401 of the Clean Water Act and another rule restricting the scope of protections under the Endangered Species Act. The Biden administration had announced plans to rewrite those rules, but while the agencies worked to complete the legal steps, the plaintiffs were hoping to avoid the harms of the two Trump rules.

In the Section 401 case, the district court held that there was “significant doubt” about whether EPA had complied with the law, but the agency was pushing for remand and, meanwhile, the court did not have the briefing needed to make an actual decision about the case on the merits.

The court instead granted remand and also vacated the rule, after finding that there would be significant harms to plaintiffs if it left the rule in place. To come to this conclusion, the court applied a test from Allied Signal v. Nuclear Regulatory Commission, which sets out the factors to look at for vacatur: how serious are the regulation’s deficiencies and would it cause “disruptive consequences.”

But there is little precedent about what to do with the Allied Signal test before a merits decision. On appeal the Ninth Circuit was faced with that question in the Section 401 case. Plaintiff states argued that EPA was seeking its own pre-merits relief: a remand without vacatur. Allowing the agency to keep the rule in place, without a decision on the merits, was essentially the same thing as ruling in EPA’s favor. As plaintiffs’ argument in the appeal went, the question of what to do before a merits ruling was essentially equitable. The court had a lot of latitude to decide how to handle the case under the common law, including vacating the rule—none of which was circumscribed by the Administrative Procedure Act.

The Ninth Circuit disagreed though. According to the appeals court, the “best read” of the act did not allow the district court to vacate without an actual decision on the merits—even though remanding was still allowed. It did not help plaintiffs that while the case was pending on appeal, the Supreme Court decided to intervene via the shadow docket and blocked the district court’s vacatur order.

This decision also addressed another doctrine that is relevant to the appeal of an order like this. EPA had argued that the district court’s decision to vacate and remand was actually not appealable, citing a case called Alsea Valley Alliance v. Department of Commerce. In Alsea, the Ninth Circuit had held that a decision vacating and remanding a rule was generally not appealable because challengers could go after any new rule finalized after remand. The Ninth Circuit did not agree that the Alsea case applied to a pre-merits decision (even though the same potential to challenge the eventual rewrite existed in the Section 401 case). As a result, that Trump-era rule remains in force.

The other decision involved the Trump Endangered Species Act rules. In that case, the district court granted the Biden administration’s request to remand the rules. The court then also vacated the rules after noting that the administration planned to rewrite them anyway. After the Supreme Court blocked the vacatur order in the Section 401 case, however, the Ninth Circuit blocked the vacatur order in this case too. As a result, these Trump-era rules also remain in force.

These cases highlight the limits and challenges that plaintiffs and an administration face when seeking a change in course after an inter-party transition. When a new president is hoping to rewrite a regulation, it can be helpful to avoid a merits decision on the prior president’s rule (as explained recently in an article I co-authored with Richard Revesz: “Presidential Transitions: The New Rules”). And courts almost always grant motions to remand. But the propriety of that presupposes that there is no real harm to leaving the prior administration’s rule in place. If there is ongoing harm and the administration is moving slowly, plaintiffs will face a tough situation under these new decisions.

Not an Afterthought: Remedies Receiving Their Day in Court.

Chevron Doctrine: Is It Declining or Ready to Be Invigorated?

Read more about Chevron Doctrine: Is It Declining or Ready to Be Invigorated?

Author

Lisa Benjamin - Lewis & Clark Law School

Lewis & Clark Law School

Current Issue

May-June 2023

Issue

With all the focus over the past few months on the West Virginia v. EPA case, and the rise of the Major Questions Doctrine in Chief Justice Roberts’s opinion, Thomas W. Merrill’s new book The Chevron Doctrine—Its Rise and Fall, and the Future of the Administrative State provides a refreshing reminder of why the Chevron doctrine is (was?) so popular. The book also provides us with an analysis of some of the doctrine’s weaknesses, which likely led to its relegation to judicial purgatory, for the moment, at the Supreme Court.

A professor at Columbia Law School, Merrill is a renowned scholar on Chevron. His book is a balanced account of the history of the doctrine, and provides a nuanced critique. The book helpfully provides some suggestions as to how the doctrine could be improved and reformed in the future.

Far from relegating Chevron to the dust bin, Merrill’s work reminds us of the judicial uncertainty that preceded the doctrine, why its perceived simplicity was so attractive to lower courts, and how that ease actually masked significant confusion within the terms included in the doctrine itself. Merrill then provides us with some potential ways forward that could improve the doctrine, while hewing to important principles of accountability.

Professor Merrill’s work is complex and at times humorous (not easy to achieve in the sometimes dry world of administrative law). It is a refreshing reminder of why the Chevron doctrine has, until very recently, enjoyed such popularity within the judiciary.

The book opens with a foundational chapter that reminds us of the four important values which should form part of judicial review of agency interpretations of statutes. These are the promotion of the rule of law, the sustenance of constitutional values, the channeling of interpretations that entail discretionary policy choices toward more politically accountable institutions (Congress and the executive branch), and finally, the creation of incentives for agencies to make better interpretive choices over time. Together, these values act as a touchstone for Merrill’s praise, and critique, of Chevron, and his articulation, in later chapters, of how the doctrine could be amended and improved.

The opening chapter charts the rise, through several administrations, in executive power, with recent presidents creating quasi-agencies through memorandums of understanding, inter-agency task forces, and powerful enforcement guidelines. Merrill also notes that a certain amount of “policy drift” on behalf of agencies is inevitable, as statutes age but regulatory problems only increase in urgency and complexity.

Within this context, Merrill’s bottom line is that if the agency is not undermining settled expectations, and is acting within the scope of its delegated authority, then the decision over discretionary interpretive choices is one the agency, not the court, should take. The corollary to this, however, is that agencies should make better interpretive decisions through the inclusion of public participation—thus, judicial deference should be conditioned upon the agency’s subjecting its own interpretations to public scrutiny. Merrill comes back to these values in his recommendations at the end of the book.

Before then, the author provides a detailed account of the pre-Chevron factors, which, in his words, neither individually nor collectively could be described as “coherent doctrine,” and then provides an insightful analysis of the decision itself.

Justice John Paul Stevens’s full opinion, as Merrill notes, is justly famous for its “emphatic affirmation of accountability values.” The justice’s text conditions deference to agencies on their superior political accountability—and makes clear that the sphere of agency policy choice is qualified by the requirement that Congress must have delegated policymaking responsibility to the agency. Finally, deference is due only when agencies act within the limits of that delegation.

However, the two most famous paragraphs of the decision (the fabled Chevron two-step) are not as consistent with the values found in the rest of the opinion. Under Step One, the court must determine whether Congress has directly spoken to the precise question at issue. If congressional intent is clear, the inquiry ends. At Step Two, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. If it is, the court defers to the agency interpretation.

Merrill attributes the disconnect of the two-step from broader accountability values to the imprecision of the language used in the two steps. In his view, the rule-like articulation of the sequencing of the decision process contained in the two-step, and widely adopted by courts since then, does not appear in the body of the opinion itself as an organizing principle, and so is conceptually isolated.

This isolation separated the Chevron doctrine from the values it was originally tied to in the full opinion of Justice Stevens. In Merrill’s view, reading the doctrine as authorizing the same deferential standard of review to agency interpretations of “implicit” gaps as extended to explicit gaps in statutes has constituted the judicial authorization of a “revolution in the structure of American government”—transferring from the judiciary to the executive interpretive authority in any case involving ambiguity in a statute. Proponents of the idea of applying Chevron to implicit statutory gaps included Justice Antonin Scalia. In Merrill’s view, however, the approach is the greatest weakness of the doctrine because it ignores the Administrative Procedure Act itself, which requires de novo review by the courts of agency statutes.

Despite this weakness, the perceived simplicity of the Chevron doctrine was seen as a godsend by executive branch lawyers, and so the Department of Justice was an architect of the doctrine’s proliferation. As was Scalia; Merrill describes the justice’s early advocacy for the doctrine as having a largely negative effect on other members of the Court. The author describes some of Scalia’s opinions as “polemical.”

The problems with the two-step, according to Professor Merrill, lie with the words used in the doctrine. It is unclear whether, at step one, a court is supposed to only look at the text of the law being interpreted, or maybe other elements of the statute, or perhaps legislative history (as a stand in for congressional intent). But Scalia’s refusal to join any opinion that relied on legislative history meant that canon of statutory interpretation fell into disuse at the Supreme Court, and led to the rise of textualism. But it is also not clear, in the Chevron two-step, how clear the text of a statute must be.

The book charts Justice Scalia’s “lonely campaign” to make Chevron the universal standard for reviewing agency interpretations. This effort came to a head in City of Arlington v. FCC where, in one of the more humorous parts of the book, Merrill describes Scalia’s success in gaining a five-vote majority over a strong dissent by Justice Roberts.

Scalia and the D.C. Circuit interpreted the Chevron doctrine to mean that any ambiguity in a statute constituted an implied delegation to an agency interpretation. According to Merrill, this is precisely backward. In the professor’s view, the question, instead, should be whether there is persuasive evidence that Congress actually delegated authority to the agency to interpret the particular matter at hand. Toward the end of the book, Merrill says that independent judicial judgment should be a default assumption, unless Congress does in fact intend that the agency is to serve as the primary interpreter. Congress has illustrated the intention to bestow interpretive authority on agencies through broad statutory mandates, such as a directive to “protect public health” or establish “just and reasonable rates.”

In the absence of this intention, however, Merrill puts forward a proposed amendment (which he calls Chevron II) to the doctrine of mandatory acceptance. The idea is to apply deference only to agency actions that result from notice-and-comment rulemaking. He also proposes a new three-step regime of judicial review. First, the reviewing court should determine whether the agency’s interpretation falls within the boundaries of its delegated authority. Second, if it does, the next step would be to ask whether the agency interpretation violates any specific provision found in applicable legislation. Finally, if it does not, the court should ask whether the agency interpretation is a product of the notice-and-comment process. If these standards are met, the court should accept the agency interpretation as the proper exercise of discretionary choice. If the agency has not used notice-and-comment, the agency should still be entitled to the court’s respectful consideration of its interpretation, depending on whether it comports with settled expectations.

As Merrill notes, determining the boundaries of agency’s delegated authority is an extremely difficult task for courts. Having decisional guidance like the Chevron doctrine is therefore incredibly useful, provided that doctrine incorporates the foundational accountability values described above.

Professor Merrill’s account of the doctrine is a timely and refreshing read. It reminds us that the balance of power among courts, the executive branch, and Congress is a delicate one, and there are fully justified reasons why agencies should enjoy judicial deference. They are the more accountable body than the courts. But, as Merrill notes, judicial deference is not unlimited. Agencies should, in fact, act in politically accountable ways by including public participation in their processes.

Time will tell what the future holds for the Chevron doctrine. At the moment, there do not seem to be sufficient votes on the Supreme Court to kill it entirely, although it may suffer benign (or not so benign) neglect and decline for some time. As Professor Merrill reminds us, though, Chevron enjoyed significant judicial popularity for a reason, and it could be both reformed and reinvigorated to meet society’s ability to progress under the rule of law.

Lisa Benjamin is an associate professor at Lewis & Clark Law School.

Lisa Benjamin Examines Book on Chevron's Destiny.

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