Recently, the US Supreme Court has not shied away from issuing precedent-setting decisions.  Next year, that trend may continue when they take up the case of Loper Bright Enterprises v. Raimondo. How the court rules could have a big impact on the ability of federal agencies to fight climate change by eroding the deference that the courts have given to regulatory agencies.

It may seem odd that a case is about whether the government can force companies to pay for having an observer onboard during fishing expeditions, would affect the US Government’s actions on climate change. But beyond the details of the case, what the court will really decide is the Chevron Deference, a doctrine that has required courts to defer to reasonable agency interpretations for decades.  This decision could adversely impact regulations on climate action as well.

Chevron Deference comes from the 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. The Court ruled that in cases where Congress does not really spell out whether an agency can act, the Court defers to that agency for interpretation, rather than decide for itself.

A Two-Step Process

When discussing Chevron Deference it is important to remember that legislating and regulating complement each other. Given all the obstacles to passing a bill through Congress, including the filibuster in the Senate, a broad coalition of support is needed to push through the measure.

On environmental issues, the way legislators can put that coalition together is by having legislation that sets a goal but does not delve into the details of how a program will be designed or implemented. Once the legislation is passed responsibility for implementing it, and ironing out the details that come with implementation, is left to the federal agencies. Chevron Deference enables this system to operate smoothly by acknowledging that legislation may have been left vague so that agencies will fill in the details.

Importantly, and unlike legislation, the regulatory rule-making process provides formal notice to all parties and an opportunity to offer critiques, comments, and recommendations before a rule is finalized.

In a recent conversation, Dena Adler, Research Scholar at the Institute for Policy Integrity at NYU School of Law, remarked that, “For decades, Congress has legislated under the assumption that it can broadly authorize agencies to reasonably interpret statutes to solve problems within their sphere of expertise. The Chevron framework allows agencies to leverage their expertise to address problems and prevents Congress from getting bogged down in technical matters that are beyond its knowledge and time-intensive to address.”

Why Chevron?

For years the Chevron Deference has been attacked by conservatives. They argue it limits the ability of the courts to interpret the law and gives too much power to the executive branch and federal agencies that are not accountable to the public.

In response, supporters of the Chevron Deference say it protects agencies from spending time seeking judicial approval each time they interpret laws. This would slow down the regulatory process or force agencies to wait for Congress to legislate each technical detail of a policy. Given the difficulties in getting legislators to agree on broad policy objectives, it would be hard to see how Congress could quickly agree upon complex, technical issues.

On the issue of expertise, in his opinion supporting Chevron Deference, Justice John Paul Stevens noted:

“Judges are not experts in the field and are not part of either political branch of the government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences… While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the government to make such policy choices – resolving the competing interests that Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.”

Winners and Losers

If Chevron Deference were eliminated, how would it impact Congress, the courts, and federal government agencies?

We could see a change in the type of legislation passed by Congress. It would likely be more narrow in focus and limited in its objectives. Without Chevron Deference in place, Congress might have to spend more resources going into finer points of policy detail. As previously noted, this would take more time and make it harder to build the kind of broad coalitions needed to pass legislation, especially given that we currently have divided party control of Congress.

For agencies, ending Chevron Deference would limit their ability to interpret statutes. In the view of Adler, this could also create a chilling effect. This would happen because agencies might be afraid of taking broad action for fear of it being struck down by the courts.

Adler speculated this may be currently happening in the wake of the Court’s decision in the case of West Virginia v. EPA. In that case, the Supreme Court used the so-called major questions doctrine to say the EPA does not have authority, under the Clean Air Act, to set up an emissions trading program to lower power plant carbon.

In the view of many, including Adler, the courts would be a clear winner if Chevron Deference were eliminated. When asked about this she recently stated, “Under Chevron, agencies can advance a reasonable interpretation of ambiguous statutory language. Absent Chevron, the courts will hold more power to shape implementation of the law.”

Given the conservative majority on the U.S. Supreme Court this would mean that a court some, like Founder Bill McKibben and former House Speaker Pelosi, have called hostile to fighting climate change would have more control over how we address the problem. While it would not be the end of our ability to lower carbon emissions, it would be an additional obstacle for the current and future administrations.

Going forward

Over the past years, the Robert’s Court has limited the ability of the executive branch, and federal agencies, to act on climate change.  If they eliminated Chevron Deference this would continue that trend.  Fortunately, there is a limit to just how much impact the court can have on climate and energy policy. There are several areas this ruling will not affect.

First, Congress still has the power to pass climate legislation that lays out clear actions for the EPA and other agencies to take on climate change.  This also holds for states, that have traditionally been the implementers of new climate change policy and higher environmental standards.

We are also likely to continue seeing growth in renewable energy and the fall in demand for fossil fuels, including the likelihood of peak oil demand by 2030. Their continued growth will be key to balancing out the potentially negative climate impacts of ruling from the Roberts Court.