Editor's note: This post draws directly from the author's press statement on Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce.
The American public is lucky to have the federal administrative state. Every day, it protects all of us from harms like heavily polluted air, consistently contaminated drinking water, and dangerous workplaces. It strengthens our democracy. And it ensures a fairer, healthier, and more inclusive economy. The good news is that today’s self-aggrandizing U.S. Supreme Court decision in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce does not change that. And that is because it cannot change that.
The reality is that the attack on Chevron deference was always built on an illusion — the illusion that federal agencies are somehow not abiding by their statutory authority in carrying out their public interest missions. That illusion may be useful for advancing a certain political ideology, but it in no way captures the reality of how agencies do their work.
Here are the facts: Since the Founding, executive branch agencies have generally been faithful in implementing federal laws consistent with the instructions that Congress has provided them. In doing so, they have drawn upon their in-house expertise to build effective policies that are informed by the best available evidence and the input agencies receive from interested stakeholders. And agencies would have continued to do just this regardless of how the Supreme Court ruled today.
True, today’s decision invites conservative judges who refuse to respect the limits the Constitution places on them to more aggressively second guess agency interpretations of their own statutes. And worse still, whatever chaos ensues will be entirely of the conservative majority’s own making, as it rests on self-serving legal formalism and a deliberate misreading of the historical antecedents of the Administrative Procedure Act.
But agencies have always labored under the threat of judges determined to make policy from the bench. The best way for our administrative state to respond to today’s decision is to keep marching forward and doing the people’s business by working with the public to help solve our nation’s problems and address the hazards and challenges our country faces.
Over the next few months, we will see whether and to what extent judges abuse today’s decision. That will be the real measure of its impact. We stand ready to educate the public about such abuses and to work with them through our elected officials to mount an appropriate response.
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James Goodwin | June 28, 2024
The American public is lucky to have the federal administrative state. Every day, it protects all of us from harms like heavily polluted air, consistently contaminated drinking water, and dangerous workplaces. It strengthens our democracy. And it ensures a fairer, healthier, and more inclusive economy. The good news is that the self-aggrandizing U.S. Supreme Court decision in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce does not change that. And that is because it cannot change that.
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.