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Analysis: Nevitt on Loper Bright Enterprises

Mark Nevitt |
Mark Nevitt

What does the Supreme Court’s ruling in Loper Bright Enterprises v. Raimondo mean for environmental law?
The court’s recent decision in Loper Bright Enterprises has enormous implications for environmental law and prospective climate action. While agencies and courts are digesting the ruling, there are four initial takeaways for environmental law.

Less Deference to the EPA and Federal Agencies
Following Loper Bright, federal agencies will be afforded far less deference on matters of statutory interpretation. Loper Bright overruled Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., a landmark case that previously guided questions of statutory interpretation. Chevron held that courts would defer to a federal agency’s interpretation of ambiguous statutory language, as long as that interpretation is reasonable. Chevron deference is now dead. So any environmental rulemaking that goes beyond a clear statutory mandate will be closely scrutinized by federal courts. Many environmentalists are upset about this loss of agency deference, particularly as several existing environmental statutes have been used as a vehicle to address environmental and climate matters.

But the news may not be all bad for environmentalists. After all, an administration hostile to environmental rulemaking may desire to interpret existing statutory language. Recall that the Chevron case involved a Reagan-era interpretation of the Clean Air Act that was deregulatory in nature and would have led to weaker environmental protections. As Professor Cass Sunstein noted, “Chevron told left-of-center judges:  Hands off!” So agency interpretation can cut both ways, depending on who is making the rules and interpreting existing statutes.

Greater Power to the Judiciary
As agencies are now afforded far less deference, where will statutory interpretive power lie? The judiciary, with federal courts now poised to have even greater authority over agency interpretation and decision-making. For some, Loper Bright is a necessary reset, merely reaffirming both Marbury v. Madison (“It is the province of the judiciary to say what the law is”) and the Administrative Procedure Act (APA) of 1946. Justice Roberts, writing for the majority, noted that Chevron deference was inconsistent with the APA:

"The APA codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal questions by applying their own judgment."

The court has already addressed numerous environmental cases in recent years (Sackett v. EPA, West Virginia v EPA) and the court has already granted cert on environmental law cases for the coming term. Loper Bright ensures that the court will play an even more important role in shaping environmental law for the foreseeable future.

Less Agency Authority for Climate Action
Following Loper Bright, agencies will struggle to use existing federal environmental statutes to reduce greenhouse gas emissions and address climate change more generally. Since Massachusetts v. EPA, the Clean Air Act has been the legislative vehicle to address federal efforts to reduce greenhouse gas emissions. While Massachusetts v. EPA is still good law, future climate action predicated on the Clean Air Act will face far greater scrutiny.

Greater Variability in Decision-Making
I also envision greater uncertainty in how environmental law and regulations are interpreted as different courts may well interpret statutory language in different ways. This could lead to a patchwork of regulatory standards, causing greater uncertainty. For example, the relatively pro-environment Ninth Circuit may well have a different read of existing environmental law then the more conservative Fifth Circuit. But time will tell how this will unfold, particularly if this divide creates greater regulatory uncertainty for business and environmental groups. Business interests have a special interest in some modicum of stability and certainty. And interpretative uncertainty can complicate long-term planning and efforts to comply with environmental law.

In sum, the end of Chevron deference will lead to a shift in the balance of power from federal agencies to federal courts. Because the court in Loper Bright grounded its reasoning on statutory and not constitutional grounds, Congress could theoretically reinstate Chevron at some future date — but that appears unlikely in the short and medium term.

Nevitt is an associate professor of law whose areas of expertise are Environmental Law, Climate Change Law, National Security Law, Constitutional Law, and Natural Resources Law.


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