We will be OK without the Chevron doctrine. . . if the courts are fair and Congress pays close attention

Written: August 2024

In Chevron v. NRDC, the Supreme Court created what became known as the Chevron doctrine. The 1984 case required courts to uphold an agency’s reasonable interpretation of an ambiguous law. There was some leeway – courts did not uphold arbitrary or capricious interpretations or interpretations of rules outside the agency’s expertise. They looked to reasonableness and applied Chevron sparingly. Ambiguity itself is a problem with lawmaking. Congress tries not to write laws using ambiguous language subject to rogue interpretation. And Congress always could amend laws if agency interpretations went against congressional intent, or were unanticipated, or for any other reason in carrying out legitimate legislative work. Last week, the Supreme Court overruled Chevron in a pair of cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, which the Supreme Court combined to answer the Chevron issue. Both concerned the National Marine Fisheries Service’s interpretation of a rule. Chevron and the disposal of Chevron rest on separation of powers. If Congress meant to defer to agencies, it would have said so, or so the reasoning goes. When Congress leaves something unclear, agencies make interpretations. Agencies promulgate regulations that have the same force as statutes. Skidmore deference, the idea that a court may still consider agency interpretation of questions in its purview, remains intact.

In Chevron, the Court allowed the EPA to interpret a phrase, “stationary source”, in a way that allowed companies emitting pollution to apply a bubble concept, compromising the permit requirements applicable to adding new installations in a facility or facility modifications. Under the agency interpretation, facilities could install equipment that emitted too much pollution without receiving a permit as long as the entire facility was adherent. That is, they could avoid emissions permitting requirements and limits by engaging in piecemeal facility replacements and upgrades. The NRDC objected to the interpretation arguing it violated congressional intent, which was to improve air quality by requiring facilities upgrading to meet specified emissions requirements.

If contextualized in politics, Chevron itself concerned an interpretation that promoted the Republican policy to protect economic growth at a cost to the environment. It allowed the EPA and states to interpret the Clean Air Act language in a way that allowed a more lax approach to air quality and emissions by using the bubble system. Beyond debate here – there is merit to both sides – environmental concerns sometimes conflict with other legitimate concerns in the political landscape.

Concern for what the agency is doing likely trumps concern for ambiguous statutes as a whole. Something political is going on, but polarization should not lead to hasty judgment about the costs of abandoning Chevron. Put another way, if a second Trump presidency were to come to be, and agency leaders were swapped out, those empowered by Chevron would be Trump appointees to agency leadership. The Trump campaign and the 2025 Presidential Transition Project (Project 2025) threaten to dismantle the bureaucracy – preferences for small government sound like the Republican party of the 1980s. However, a preference for leaders who lack subject-matter expertise does not. The three-tier system of government is being tested as the judiciary is both overly empowered and highly politicized. The possibility of weakening agencies, which are part of the executive branch, would further distort the three-tier system.

If Trump is elected and appoints an FDA leader who is staunchly anti-abortion, pro-pharma with the exception of mifepristone, permissive about drug advertising, and who denies public health emergencies, one’s stance on the Chevron doctrine might well change, especially if one opposes those mixing ideology with health policy. Recently, I wrote about deference to the FDA concerning mifepristone. If the FDA were run by someone who opposes the dispensing of the drug for ideological or religious reasons and who hired those who agree to use their positions to undermine the objectivity of the drug approval, I would not favor deference. Consider the potential disaster of an inexperienced leader at agencies that engage in high-risk areas: the Nuclear Regulatory Commission, Health and Human Services, the Bureau of Alcohol, Tobacco, Firearms and Explosives, etc. If there were a risk to a nuclear facility, a statute were ambiguous on security requirements, and an agency head interpreted an ambiguous law to suggest less security were needed, the agency’s resolving the ambiguity itself may pose a risk to the people. In the mifepristone case, the circuit judges were ideological, and the agency was not. The tables may turn.

There is a possibility that agencies may not continue to attract and maintain experts if the leadership changes, or the experts within agencies may become less influential on their leaders if political appointees are appointed for partisan reasons rather than for expertise. The day-to-day work of civil servants should provide consistent expertise, and current laws protect their employment to a certain degree. The possibility that agencies will be trimmed, experts fired, and budgets cut suggests that experts from outside of agencies testifying may be the best source of technical information to help inform a court about an ambiguous law.

The agency interpretation is not always better. In fact, in Chevron itself, the agency interpretation of the Clean Air Act was favorable to industry and not so great for the planet, the people breathing the air, or the environment. One benefit to Loper, although arguably not beneficial if courts are made up of partisan judges, is that agencies, with their niche expertise, will not systematically be favored over broader interests of the people. For example, if an agency were deciding to fund scientific research like stem cell treatment, the agency itself would generally be composed of enthusiasts. If such enthusiasts interpreted statutes to divert more money to their cause, a court may be a better arbiter of a (hypothetical) ambiguous statute allowing the agency to do so. For example, if stem cell research pulled money from carrying out policies more likely to cure or prevent chronic disease, discussions beyond an enthusiastic agency would be highly relevant, making a court perhaps a better, less biased decision maker. (People’s Science by Ruha Benjamin discusses the human costs of California’s devotion to niche scientific research.)

Sometimes deferring to agencies would be best; sometimes not. If the executive were run by experts, there were a three-tier government system with separation of powers, and there were a truly unpolitical judiciary, there is reason to see courts as able to take expert witness testimony and make decisions about ambiguous statutes or defer to the experts, when appropriate. However, as Justice Kagan noted in Gonzalez v. Google, a complex case about the internet and section 230 of the Communications Decency Act, the Supreme Court is not composed of the “nine greatest experts.” And Justice Kagan noted during the pandemic that the court should not be “armchair epidemiologists.” Clearly, experts remain crucial to cases. There is also clearly reason to note the value of agency interpretations of statutes. The value is steeped in expertise and therefore requires appointing qualified people to posts, whether as leaders, researchers, or other relevant employees.

While I see the problems, especially the fear that the nine justices on the Supreme Court could become default “armchair experts”, I do not concede that overruling Chevron will undermine executive agencies across the board or harm the public. There has been somewhat of an overreaction. Understandably, a partisan judiciary is the factor that could undermine democracy. A well working, fair judiciary may very well choose when to defer to agency expertise and when not to. Judicial review is a well-established social good.

The legislative branch also plays a role in the analysis of the aftermath of Loper. It is a wake-up call to write unambiguous laws and perhaps to be clearer and delegate rulemaking authority explicitly more often. It is uncertain whether implicit congressional delegations of rulemaking authority to agencies will also be on the chopping block. That is, Congress’ silence is (or was) usually an opening for agency rulemaking. If agencies are weakened during the next four-year presidential term, then legislators could become more important to mediate the downside of weak agencies and the politicization of the courts.

To rule in favor of deference when agencies are led by one’s favored partisans and to wish to eliminate it when they are led by appointees of the opposing or unpreferred political party would be an unfortunate and glaring sign of an impartial judiciary and of impartial commentators about Loper. Those evaluating the impact of Loper must also reckon with their own policy preferences less they become biases. Since the time of Chevron, when the NRDC opposed the relaxed interpretation of the Clean Air Act, the EPA has been grappling with policies that weigh economic growth and environmental protection, regardless of presidential politics and partisanship.

While Loper looks like a judicial power grab and a sign of a politicized judiciary, it should be contextualized in the three-tier system. Overruling Chevron may be a sign of a court willing to deviate from established caselaw, but it need not be a sign of democracy’s demise.