Another Step Toward Judicial Supremacy

The U.S. Supreme Court last week agreed to decide a case that could bring on a major weakening of the laws that the United States Congress has put into place to protect public health, safety, and the environment.

For almost four decades, the Supreme Court has adopted a deferential approach when federal regulatory agencies interpret their statutes to give them the power to protect us from irresponsible companies that put profits over public welfare.  

Under the so-called Chevron doctrine, a court reviewing an agency’s action is not supposed to decide for itself whether the statute under which Congress authorized the agency to act empowers the agency to take that action. Instead, the court must first ask whether the statute is ambiguous, as many modern statutes are.

If the relevant language of the statute is ambiguous, then Congress has implicitly delegated to the agency the function of determining the statute’s meaning, and the reviewing court should uphold the agency’s interpretation of its statute so long as it is reasonable.

If the statute is unambiguous, then both the court and the agency are, of course, bound by Congress’s unambiguously expressed intent.

This approach makes a great deal of sense, because regulatory agencies deal with their authorizing statutes on a day-to-day basis, and they are constantly interpreting those statutes to resolve issues that Congress may not have anticipated when it wrote the statutes.  

In addition, agencies are often involved in drafting and amending the statutes they administer, and they interact with Congress regularly through congressional oversight and the appropriations process.  

Through these activities, agencies acquire expertise in administering their statutes that a reviewing court lacks, because a court addresses the meaning of any particular statute only very rarely as it decides cases of all varieties that come before it.

The Chevron doctrine, however, has never been popular with the regulated industries and conservative think tanks that want to limit the power of federal agencies. They have for decades spent large sums of money and devoted enormous intellectual energy to filling the federal courts with like-minded judges who will rein in the federal agencies.  

Last June, they achieved a major victory when the Supreme Court, in a case involving the U.S. Environmental Protection Agency’s (EPA) power to regulate emissions of greenhouse gases, held that the Chevron doctrine does not apply to “major questions” of “great economic and political significance.” In such cases, the agency must point to language in the statute that “clearly” authorizes the agency’s action. And the reviewing court gets to decide whether the agency has made that demonstration.  

To no one’s surprise, EPA failed to persuade the six conservative justices that Congress had clearly authorized it to require power plants to shift electricity production to less-polluting natural gas and renewable energy. And EPA is now struggling to address greenhouse gas emissions within the narrow constraints that the Court imposed.

In agreeing to hear a case involving the authority of the National Marine Fisheries Service to require federal observers on commercial fishing boats to monitor compliance with the agency’s regulations, the Supreme Court has agreed to entertain arguments that it should revoke the Chevron doctrine.  

Abandoning the Chevron doctrine would signal to judges who are ideologically disposed toward limiting the power of the federal government that they are free to do so. Agencies like EPA, the Consumer Financial Protection Bureau, the Occupational Safety and Health Administration, and the Consumer Product Safety Commission would find it much harder to adjust to changing circumstances as they attempt to protect the public.

The demise of the Chevron doctrine would be another step in the direction of judicial aggrandizement and a major victory for the companies and ideologues who oppose federal regulation.

But it would be a terrible loss for the consumers, workers, and other vulnerable people and places who depend on federal agencies to protect them from polluters, profiteers and plunderers.