Blog

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.

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.

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 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?

As discussed in yesterday’s post, the contemporary conservative movement is prepared to use legal battles over esoteric administrative law doctrines, such as Chevron deference, as a tool of ideological warfare. Importantly, though, these battles present progressives with a great opportunity to engage at the ideological level as well. After all, progressives have been busy developing their own competing vision of what our constitutional democracy should look like. They should seize the opportunity presented by the fight over Chevron deference’s future to articulate and advance that vision.

In Part 1 of this three-part series, I introduced the rapidly boiling legal battle over a once-obscure administrative law doctrine known as Chevron deference. Much of the commentary to this point has focused on the political motivations behind the conservative attack on Chevron deference. In this second post, I will take a closer look at how conservatives have carefully crafted this battle (and their broader war on the administrative state) to promote their distinctive brand of ideological thought.

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.

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.