Judicial Deference to Agencies: A Timeline

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.

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.

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.

The U.S. Environmental Protection Agency (EPA) has issued a cluster of new rules designed to limit carbon emissions from power generators. Once upon a time, the presumption would have been that the rules would quietly go into effect, until someday a court rules on their validity. These days, we can expect a lot of action to begin almost right away.

In West Virginia v. EPA, the U.S. Supreme Court struck down the Obama-era Clean Power Plan. The heart of the ruling was that the U.S. Environmental Protection Agency (EPA) had engaged in a power grab, basing an unprecedented expansion of its regulatory authority on an obscure provision of the statute. Conservative groups have claimed since then that virtually every government regulation raises a major question. But the doctrine cannot be read that broadly. In particular, the doctrine does not apply to the emission standards for cars that EPA issued last week. As EPA explains in its prologue to the rule, the car standard is very different from the Clean Power Plan.

Today, the Center for Progressive Reform is publishing a new policy brief. Missing the Mark: How North Carolina’s Decarbonization Efforts Fall Short and How to Fix Them examines the pitfalls of North Carolina’s decarbonization plan (known as the Carbon Plan and developed by Duke Energy) and alternative models to address those shortcomings.

The Chevron doctrine requires judges to defer to an agency’s interpretation of a statute if that interpretation is reasonable. The State Farm case, which is much less widely known, requires courts to defer to an agency’s expert judgment unless its reasoning has ignored contrary evidence or has a logical hole. As you probably already know, two cases now before the Court will probably result in abandoning or revamping Chevron. But the “abortion pill” case that will be argued today will test the Court’s adherence to State Farm. Will the conservative Justices stand by State Farm even when doing so expands access to abortion?

My colleagues at the Center for Progressive Reform and I recently published a report and interactive map examining how local ordinances that restrict clean energy development can impose major obstacles in our efforts toward a just clean energy transition. Among the many important findings in our report, we highlighted the high degree of variability that exists between states in the way large-scale clean energy generation is regulated. In some cases, like Illinois and Michigan, governments have empowered state authorities to override local siting measures; other states have given local governments more decision-making powers to decide if and how renewable infrastructure can be built. Among the latter is Ohio.

Last week, the U.S. Securities and Exchange Commission (SEC) released its long-awaited final rule requiring publicly traded companies to report certain climate risks and greenhouse gas emissions as part of their financial risk disclosures.