This post is the first in a three-part series. Read Part 2 here. Read Part 3 here.
In January, the U.S. Supreme Court heard oral arguments in a pair of related cases — Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce — which could be among the most consequential decisions for U.S. democracy that the Court has ever issued.
That’s because the cases urge the Court to overturn a longstanding judicial doctrine called Chevron deference. Over the last 40 years, that doctrine has provided a practical framework for mediating the growing separation-of-powers fights among the three branches for control over administrative agencies, with the preservation of the administrative state’s essential democratic foundation as its guiding star.
The doctrine arose in a 1984 case called Chevron v. NRDC, which involved a challenge brought by the nonprofit Natural Resources Defense Council over the Environmental Protection Agency’s (EPA) novel interpretation of a Clean Air Act provision. The Court recognized that the values of democratic accountability and honoring expertise dictate that agencies themselves are better positioned to resolve questions about the meaning of authorizing statutes when those statutes are ambiguous, and therefore unanimously upheld the EPA’s deregulatory air policy.
From this case arose the Chevron “two-step” framework — quite possibly the most relied-upon tenet of American administrative law — which is made use of any time a government agency and affected members of the public do not see eye-to-eye on how to interpret a statute. At Step 1, the reviewing judge determines whether the debate over the meaning of the language can be definitively resolved through traditional tools of statutory construction. If not, the judge then moves to Step 2, which involves assessing whether the agency’s action rests on a reasonable interpretation of the disputed language.
Note there are two important things going on under the surface of this framework — both of which flow from Chevron’s motivating concerns with democratic accountability and expertise. First, Chevron deference rests on the assumption that Congress can and has implicitly delegated statutory interpretation responsibilities to agencies, as opposed to the judiciary. Second, reviewing judges must accept an agency’s interpretation even if they do not agree that it is the “best” interpretation. It is this conscious act of yielding to agencies that puts the “deference” in “Chevron deference.”
For much of its history, Chevron deference has been able to count conservatives among its most enthusiastic supporters. In the 1980s and ‘90s, members of the then-burgeoning conservative legal movement regarded the doctrine as a powerful bulwark against what they perceived as the greatest threat to their agenda: liberal activist judges.
But in recent years, bringing about the deconstruction of Chevron deference has become a cause célèbre for conservative lawmakers and advocates. They have come to recognize that the doctrine had tied an anchor around what has now become their greatest political asset: a federal judiciary that will remain well-stocked with conservative ideologues for decades to come. Consequently, Loper Bright and Relentless can be properly understood as the culmination of a years-long campaign to clearcut Chevron from the legal landscape so that a new regime of creeping reactionary juristocracy could flourish in its place.
For their part, progressive advocates have rightly recognized the political implications of these cases — namely, as a cynical power grab by conservatives. Largely unable to secure majority rule in the political branches through the standard democratic process, conservatives have become increasingly dependent on their “policymakers on the bench” for advancing their agenda (or defeating that of their political opponents). The death of Chevron is key to unlocking the full potential of this strategy.
But, for conservatives, the fight against Chevron is also about waging a broader war over ideology. As the oral arguments confirmed, embedded within this fight are at least three ideas that are central to the contemporary conservative movement’s project to reprogram American political thought for decades to come. In the second post of this three-part series this afternoon, I will explore each of these three ideas in greater detail.
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James Goodwin | March 4, 2024
In January, the U.S. Supreme Court heard oral arguments in a pair of related cases — Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce — which could be among the most consequential decisions for U.S. democracy that the Court has ever issued. That’s because the cases urge the Court to overturn a longstanding judicial doctrine called Chevron deference. Over the last 40 years, that doctrine has provided a practical framework for mediating the growing separation-of-powers fights among the three branches for control over administrative agencies, with the preservation of the administrative state’s essential democratic foundation as its guiding star.
Robert Fischman | February 29, 2024
How should the United States manage the largest biodiversity conservation system to be greater than the sum of its parts? This vexing question for the national wildlife refuges has received scant attention for the past quarter century. Now the U.S. Fish & Wildlife Service (Service), which administers the refuge system, has proposed a rule to guide specific refuge decisions to ensure they contribute to a national network rather than incrementally fray the web of conservation.
Federico Holm | February 28, 2024
A profound energy transition is sweeping the United States. In addition to mitigating dangerous greenhouse gas emissions that contribute to climate change, it means new economic opportunities and a safer and healthier environment for communities across the country. A better future is certainly within reach, or at least it is for some communities, which are the ones that will be able to capitalize on the green transition. But for many others, there is no guarantee that this clean energy transition will be a just and equitable one. Why is this the case? As we explore in a new report and interactive map, it turns out that one of the biggest obstacles is self-inflicted: local ordinances that restrict new renewable energy development projects, including wind, solar, and battery storage.
Federico Holm | February 22, 2024
On February 7, the U.S. Environmental Protection Agency (EPA) finalized new and stronger air quality standards for fine particle pollution (commonly known as soot), a harmful pollutant and byproduct of burning coal, manufacturing, oil refining, and motor vehicles. Soot is one of the nation’s most dangerous air pollutants, and one of the most widespread, though it disproportionately impacts the health of structurally marginalized communities. Multiple reports have found that people living within half a mile of warehouses have higher rates of asthma and heart attacks than residents in the area overall, increased risk of cancer, and nervous system effects.
Sophie Loeb | February 15, 2024
As North Carolinians continue to grapple with rolling blackouts and rising energy bills, yet another pending environmental catastrophe is developing in our backyards. Duke Energy, our state’s monopoly utility provider, has submitted filings for two new methane gas power plants — one at the current Roxboro coal plant in Person County and another at the Marshall plant on Lake Norman.
Daniel Farber | February 13, 2024
EPA has just issued a rule tightening the air quality standard for PM2.5 — the tiny particles most dangerous to health — from an annual average of 12 micrograms per cubic meter down to 9 micrograms per cubic meter. EPA estimates that, by the time the rule goes into effect in 2032, it will avoid 4,500 premature deaths, 800,000 asthma attacks, and 290,000 lost workdays. Most likely, by the time this post goes up, someone will have filed a lawsuit to overturn the EPA rule. What legal arguments will challengers raise, and what are their chances of winning? Let’s consider the possible challenges one by one.
Daniel Farber | February 8, 2024
In 2023, the Supreme Court ended 50 years of broad federal protection of wetlands in Sackett v. United States. It is only when you look back at the history of federal wetlands regulation that you realize just how radical and destructive this decision was.
Daniel Farber | February 2, 2024
Later this month, the U.S. Supreme Court will hear oral argument about whether to stay a plan issued by the U.S. Environmental Protection Agency (EPA) to limit upwind states from creating ozone pollution that impacts other states. As I wrote before the Court decided to hear the arguments, the issues here seem less than earthshaking, and for that matter, less than urgent. It was puzzling to me why after many weeks, the Court was still sitting on the “emergency” requests of the upwind states to be rescued from the EPA plan. Given that the Court seems to think the issues are important enough to justify oral argument, however, it’s worth examining what seems to be bothering the Court about implementing the EPA plan.
Richard Pierce, Jr. | February 1, 2024
I find the Center for Progressive Reform’s pursuit of environmental justice inherently appealing, but this work raises provocative questions: Should U.S.-focused groups like the Center and policymakers pursue an environmental justice mission that does not account for potentially negative trade-offs in developing countries? Or, are there ways to account for those trade-offs to ensure environmental justice work and efforts to address climate change benefit people across the globe?