By Eric Murphy
Earlier this month, the U.S. Supreme Court issued a ruling expected to have sweeping impact across federal agencies, including the Department of Transportation. The decision, in a case called Loper Bright Enterprises v. Raimondo, gives judges more say in whether agencies are meeting the letter of the law. Under the previous “Chevron doctrine,” judges deferred to the expertise of federal rule makers as they interpreted laws to create rules and regulations.
Now, judges will have more authority to interpret whether the rules federal agencies create match the law. That could provide a window of opportunity for those seeking to challenge a wide range of rules across the federal government, including transportation rules like a recent EPA rule that would force a faster transition to electric vehicle production.
Ryan Levandowski, a legal expert at the Georgetown Climate Center, thinks the ruling could “open up the floodgates of litigation challenging agency rulemaking,” but also sees opportunities for states to step into the breach.
“Lower courts will have more room to overturn some of these agency regulations,” he says. “On the agency side, we’re likely to see some amount of chilling effect on the issuing of new regulations.”
But while federal agencies like the USDOT may be thwarted in their policy making, Levandowski says that “leadership states like New York or California or others now have this room to step in and develop their own rules and regulations because of those actions.”
Sharon Jacobs, a professor of administrative law at UC Berkeley, had a similar read in a recent discussion of the ruling’s impact on environmental policy. Because some federal policymaking might be stymied, she said, “sub-national efforts like California’s become all the more important when it comes to environmental regulation.”
Since the ruling only affects federal agencies, the states that have their own versions of Chevron deference to state agency interpretations will keep them in place.
As for federal agencies, they have already been relying less on Chevron as a legal strategy in recent years, anticipating the Court’s ruling. One example is current litigation in which the Federal Highway Administration is alleged to have exceeded its statutory authority to regulate tailpipe emissions on U.S. highways. There, the FHWA interpreted an old statute’s authority about developing performance measures for the U.S. highway system to include environmental performance.
Levandowski thinks similar cases, in which agencies use older laws to develop regulations addressing newer topics like climate change or autonomous vehicles, are more likely to be challenged in the new legal environment.
Agencies will still get some leeway, known as Skidmore deference, if they’ve maintained a consistent interpretation of a statute, if they are using valid reasoning, and if they can show they’ve thoroughly investigated an area, but that deference won’t always hold. Agencies currently win about 60% of “Skidmore” cases.
Daniel Farber, co-director of UC Berkeley’s Center for Law, Energy, and the Environment, says agencies will have to show more clearly how their rules and regulations adhere to the law going forward:
“If you look at the Biden EPA’s recent regulations, you can see that they weren’t counting on Chevron to win cases. Instead, EPA has carefully explained how its decisions match up to the language of the statute and the delegation of authority to the agency, how they fit longstanding interpretations of the law, and why they involve the kinds of complicated factual questions that only agencies can answer. EPA’s reasoning in those regulations may be a good model for the future.”
Photo Credit: Towfiqu barbhuiya via Pexels, unmodified. License.