Earlier this week, the conservative House Republican Study Committee (RSC) issued a memo on how the party’s lawmakers should respond to the U.S. Supreme Court’s pending decisions in a pair of cases called Loper Bright v. Raimondo and Relentless v. Department of Commerce. In these cases, the Court is considering whether to overturn a 40-year-old legal doctrine called Chevron deference, which guides reviewing courts to defer to agencies’ reasonable interpretations of their statutory authority when relevant provisions are unclear.
It’s worth reflecting on this memo because one of the issues that came up at the Loper Bright/Relentless oral argument was what sort of response overturning or limiting Chevron would provoke from Congress. This memo gives us a first concrete look at the answer to that question.
Broadly speaking, during oral arguments, the conservative justices embraced the view that Chevron creates disincentives for Congress to do its job properly. The implication then was that limiting or overturning Chevron would spur Congress to “Article I” better (however that might be defined).
Bearing this all in mind, it is striking by how little Article I actually figures in the RSC memo. Instead, its primary agenda items are litigation (Article III) and imposing more restrictions on agencies (Article II). The closest it comes to “empowering” Congress is the REINS Act, a law that would prohibit an agency from issuing a final “major rule” (having an annual economic impact of $100 million or more) unless Congress affirmatively approves it through fast-track legislative procedures. But, as a form of legislative empowerment, even the REINS Act is pretty weak since its use, by definition, springs from a reactionary posture and because it is intrinsically not constructive.
Not for nothing, everything listed in the memo was more or less congressional conservatives’ agenda all along. In order words, the looming advent of a post-Chevron world doesn’t seem to have provoked any change in direction for at least one party in Congress.
Notably, though, there’s nothing in the memo about finding ways to cross the aisle, improve regular-order lawmaking, or increase in-house capacity.
Maybe the problem with Congress isn’t Chevron after all.
Showing 2,833 results
James Goodwin | June 27, 2024
Earlier this week, the conservative House Republican Study Committee (RSC) issued a memo on how the party’s lawmakers should respond to the U.S. Supreme Court’s pending decisions in a pair of cases called Loper Bright v. Raimondo and Relentless v. Department of Commerce. In these cases, the Court is considering whether to overturn a 40-year-old legal doctrine called Chevron deference, which guides reviewing courts to defer to agencies’ reasonable interpretations of their statutory authority when relevant provisions are unclear.
Daniel Farber | June 27, 2024
Months ago, the U.S. Supreme Court agreed to hear an “emergency” request to stay EPA’s new rule regulating interstate air pollution. Like most observers, I was puzzled that the Court was bothering with the case before the D.C. Circuit even had a chance to consider the merits of the challenges. Months later, the Court has finally granted the stay, over a strong dissent from Justice Barrett. EPA may be able to fix the problem with this rule very quickly, and the opinion — at least on first reading — doesn’t seem to carry broad implications for other environmental litigation.
Daniel Farber | June 25, 2024
The U.S. Supreme Court agreed June 24 to hear a case about whether environmental impact statements need to address climate change. To read the arguments made about the case, you’d think that this was a common law area where courts establish the rules. But as I discuss in a forthcoming article, recent amendments have put a lot of flesh on the previously barebones law. The bottom line: The Supreme Court shouldn’t give advocates of narrowing the National Environmental Policy Act (NEPA) a victory that they were unable to get through the legislative process.
Sophie Loeb | June 20, 2024
Duke Energy, North Carolina’s monopoly electricity provider, is currently undergoing one of the largest utility-led fossil fuel expansions in the entire country. Though the corporation publicly touts its carbon reduction climate goals, its investments in natural gas are leading to burning a “super pollutant” gas – methane – that is 86 times more harmful than carbon dioxide at trapping heat and warming the environment.
Alice Kaswan | June 13, 2024
Deep in the heart of state and regional environmental and energy agencies, engineers, economists, scientists, and lawyers are working hard to develop comprehensive climate action plans (CCAPs). Created by the Inflation Reduction Act, EPA’s Climate Pollution Reduction Grant (CPRG) program is funding a range of state and subnational planning and implementation measures, including the CCAPs, which are due in 2025. In our recent issue brief, Comprehensive Climate Action Plans: What’s a Greenhouse Gas Reduction “Measure”?, we explore a key question: What is the nature of the “actions” that planners should include in their climate action plans? Or, to use the program’s term, what’s a climate “measure?”
Alice Kaswan, Catalina Gonzalez | May 21, 2024
States like California face sobering budget shortfalls, and their governors and legislatures are grappling with how and where to make cuts. These debates cast a spotlight on the critical importance of state budgets to an equitable clean energy future.
Daniel Farber | May 2, 2024
The U.S. Supreme Court is currently considering whether to overrule the Chevron doctrine. Chevron requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute. We should know by the end of next month whether the current conservative super-majority on the Court will overrule Chevron. In the meantime, it’s illuminating to put the current dispute in the context of the last 80 years of judicial doctrine regarding deference to agencies on issues of law. As this timeline shows, the Supreme Court’s engagement with this issue has been long and complex.
Federico Holm | May 1, 2024
Since the passage of landmark legislation like the Inflation Reduction Act and the Bipartisan Infrastructure Law during the Biden administration, we’ve repeatedly heard that we’re at a critical junction: There is a need to expand and accelerate environmental, climate, and clean energy policy implementation and opportunities to do so, but the pathway toward this goal will be plagued by significant delays. The National Environmental Policy Act (NEPA) has become a common scapegoat in this fight, with critics charging that the sometimes lengthy and complicated environmental review process NEPA requires is the main thing holding up decarbonization and the clean energy transition. This has led to calls from across the political spectrum for “reforming” the statute. This assumption, however, misrepresents what happens on the ground.
Daniel Farber | April 29, 2024
The bad news is that we’re not yet on track to avoid dangerous climate change. But there’s also good news: We’ve taken important steps that will ease further progress. We should resist the allure of easy optimism, given the scale of the challenges. Neither should we wallow in despair. There’s a good basis for hope.