WASHINGTON >> The Supreme Court heard arguments Wednesday in a set of cases that could pave the way for its conservative supermajority to undercut how American society imposes rules on businesses, advancing a key goal of the conservative legal movement.
Such a ruling would make it easier to challenge regulations across a gamut of issues — including keeping the air and water clean, ensuring that food, drugs, cars and consumer products are safe and much more.
The court is expected to issue its ruling by the end of its term, most likely in June. But it remains unclear how sweeping any ruling — and its consequences — would be. Here is a closer look:
What is at issue?
The plaintiffs in the case are asking the Supreme Court to overturn a major 1984 precedent, Chevron v. Natural Resources Defense Council. The decision lays out a framework that federal judges — especially at the district and appeals court levels — have used for decades to resolve the myriad legal challenges to regulations.
People who do not like particular rules can file lawsuits arguing that an agency exceeded the limits of the authority Congress granted to it. According to the precedent established in Chevron, if part of the law Congress wrote empowering a regulatory agency is ambiguous but the agency’s interpretation is reasonable, judges should defer to the agency.
In the cases argued Wednesday, owners of commercial fishing vessels are challenging a regulation issued by the National Marine Fisheries Service. It requires commercial fishers to pay the cost of monitors who prevent overfishing. An appeals court upheld the rule based on Chevron methodology, and the plaintiffs are asking the Supreme Court to reverse that — and to overturn Chevron.
Why is the case important?
Even though the question of who pays for fishery monitors mainly affects only a handful of commercial fishers, the principle the case establishes could profoundly influence how the government imposes rules on a range of businesses.
Critics of Chevron argue that the approach puts too much power in the hands of executive branch agencies and that courts are abdicating their authority to interpret the law. Proponents of it argue that without such a filter, courts will be micromanaging any number of exceedingly technical issues that judges have no expertise to resolve.
“If Chevron disappears,” said Jody Freeman, a Harvard University law professor who specializes in administrative and environmental law, it could become “a free-for-all for judges to dig into the nitty-gritty of everything agencies are doing” and “an invitation for interest-group lawyers to try to tie up the agencies in legal knots.”
Notably, the lawyers representing the commercial fishing business plaintiffs in Wednesday’s case are backed by petrochemicals billionaire Charles Koch. He and his brother, David Koch, who died in 2019, have for decades funded libertarian-minded conservative causes.
What are the possible outcomes in the case?
The controlling conservative bloc of the Supreme Court is widely believed to have taken the case with the intent of curtailing Chevron. But it is unclear how far the court would go, what the consequences would be or what regulations could be upended since there are any number of paths the justices could take.
At the modest end of the spectrum, the court could simply narrow Chevron’s reach. For example, it could say that an agency is not free to interpret ambiguous statutes unless Congress has signaled that it specifically gave that agency such discretion — for example, if a statute says the agency shall come up with a “reasonable” approach to accomplishing its mission.
At the aggressive end of the spectrum, the court could overturn Chevron entirely and bar judges from deferring to an agency’s interpretation of its statute under any circumstances.
How might the case affect environmental protections?
Overturning the Chevron doctrine could put dozens of existing environmental regulations on air, water and chemical pollution at risk — and it could profoundly weaken the federal government’s authority to impose new regulations to limit climate change and to ban the use of asbestos and other toxins, said experts in environmental law.
That would be a major victory for the fossil fuel lobby and other industry groups that have strategically sought to limit the Environmental Protection Agency’s authority to regulate pollution under laws that direct the agency, when writing new rules, to require industries to use the “best available technologies” to reduce pollution.
The EPA is drafting a pair of major climate change rules on cars and power plants that are expected to be released this spring. Because the federal agency, rather than the law, specifies the technologies to be used, “these rules will now certainly be targets of lawsuits that could be strengthened by the overruling of Chevron,” said Michael B. Gerrard, director of the Sabin Center for Climate Change Law at Columbia University.
Still, he said: “Nothing would be automatically overturned. But it’s a very large new arrow in the quiver of lawyers trying to push back against environmental regulation.”
What about already decided cases?
Looming over the arguments Wednesday was what a ruling curbing or even overturning Chevron would mean for past cases that were decided using the doctrine.
While the Supreme Court has only rarely invoked Chevron, lower courts have relied on Chevron’s methodology thousands of times to uphold regulations by ruling that agencies’ views of ambiguous statutes were reasonable.
A lawyer for the plaintiffs, Roman Martinez, told the justices Wednesday that he did not believe overruling Chevron would be particularly disruptive because of the judicial principle of not reopening already settled legal issues. But Solicitor General Elizabeth Prelogar warned the justices that “endless litigation” would ensue.
“Litigants will come out of the woodwork seeking to open those decisions and contending that they didn’t actually address what they now say is the relevant question,” she predicted.
Where does the conservative legal movement fit in?
The Supreme Court’s conservative supermajority has been chipping away at the authority of the administrative state, which took its shape as part of President Franklin D. Roosevelt’s New Deal. It is the primary way modern American society imposes rules on businesses: Congress creates agencies staffed by technical experts to study various types of problems and empowers them to issue legally binding regulations.
Such regulations are aimed at broadly helping society but can cut into the profits of individual business owners.
After the consumer safety and environmental movements in the 1960s, a backlash emerged from businesses, and critics argued that government functionaries who were not accountable to voters were issuing regulations whose costs outweighed their benefits. (Elected lawmakers who control agency budgets have a procedure to overturn specific regulations, and agencies are run by presidential appointees.)
Rolling back the regulatory state became a central ideological goal of the ensuing conservative legal movement. And since President Donald Trump consolidated a conservative supermajority by appointing justices who emerged from that movement, it has been moving to do so.
In June 2020, for example, the five Republican appointees then on the court struck down a law in which Congress had sought to protect the chief of the Consumer Financial Protection Bureau from being fired by a president without a good cause, such as misconduct. Since Trump’s third appointee joined the court, the majority has gone further.
In particular, in June 2022, the court expanded and entrenched what the conservatives call the “major questions doctrine,” under which judges can strike down regulations that have a significant effect if they believe Congress was not explicit enough in authorizing agencies to take such actions.
Against that backdrop, overturning or gutting Chevron appears most likely to be their next step.
This article originally appeared in The New York Times.
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