Supreme Court moves put Biden climate agenda at risk

Source: By Pamela King, E&E News • Posted: Wednesday, May 3, 2023

Climate advocates.

Advocates rallied at the Supreme Court in 2022 after justices reined in EPA’s authority to regulate climate pollution from power plants. Francis Chung/E&E News/POLITICO

Opponents of robust federal climate action were emboldened this week after the Supreme Court signaled that it may be ready to overturn a powerful tool that helps agencies like EPA defend their rules against legal attack.

The justices’ decision to consider overruling Chevron deference — which gives agencies leeway to interpret ambiguous laws — comes less than a year after the high court breathed life into the “major questions” doctrine, which says Congress must clearly authorize agencies to act on issues of vast economic and political significance.

If the Chevron reexamination goes the same way as the major questions case, conservatives would have two significant weapons to wield against government regulations. Given the divided nature of the United States’ government — and politics more broadly — that could prove devastating for moves to rein in fossil fuels — tactics currently led by the Biden administration through agency actions rather than a calcified Congress.

West Virginia Attorney General Patrick Morrisey, one of the leading Republican foes of the Biden administration’s “whole-of-government” approach to addressing global climate change, said Monday that he sees the Supreme Court’s decision to take up Chevron as an “important extension” of conservative efforts to handcuff the federal government under the major questions approach.

“Congress should pass laws, judges should construe them, and unelected bureaucrats should stick to their job of just implementing those laws — not rewriting them,” Morrisey said in a statement. “We look forward to explaining over the coming weeks and months why the Court should take a step back from Chevron and return power where it belongs.”

Morrisey’s statement came on the heels of a Supreme Court order announcing that the justices would — in the context of a dispute over fishery management — revisit the doctrine established in the 1984 case Chevron v. Natural Resources Defense Council. Under that nearly 40-year-old precedent, courts generally defer to federal agencies’ reasonable interpretations of ambiguous statutes.

While Chevron was originally lauded by Republican-appointed justices as an important protection against judicial activism, the doctrine has fallen out of favor at the conservative-dominated Supreme Court. The justices have not applied Chevron deference to uphold a federal law in nearly a decade, although they have declined opportunities to scrap the doctrine.

Chevron is, however, alive and well in the lower courts, raising the ire of some of the Supreme Court’s most conservative members, including Justice Neil Gorsuch, who recently urged his colleagues to bury the doctrine with a “tombstone no one can miss.”

Federal appellate courts upheld agency interpretations in 71 percent of cases where the doctrine was cited — and agencies won far more often when those courts applied Chevron compared with when they did not, according to a 2017 paper published in the Michigan Law Review.

Because the Supreme Court takes up just a small number of cases each year, many federal appeals court rulings upholding agency rules on Chevrongrounds remain the law of the land.

So while conservative challengers may have a good chance of securing Supreme Court review of a signature climate rule like the Obama administration’s Clean Power Plan — as they did in the 2022 case West Virginia v. EPA that revitalized the major questions doctrine — their battles over smaller, targeted climate rules of the sort that President Joe Biden’s team is pursuing might meet their final fate in a lower court willing to defer to agency authority.

For example, in Loper Bright Enterprises v. Raimondo, the case the Supreme Court granted Monday, herring fishing operations are fighting a decision by the U.S. Court of Appeals for the District of Columbia Circuit that applied Chevron to uphold a NOAA Fisheries rule requiring companies to pay for third-party monitoring of fishing hauls.

The D.C. Circuit frequently has the final say in legal battles over EPA rules on climate and the environment.

White House press secretary Karine Jean-Pierre declined to respond Monday when asked about the Supreme Court’s decision to take up the Loper case.

“The implications of a broad ruling on Chevron deference would be significant in the lower courts,” said Rachel Rothschild, assistant professor at the University of Michigan Law School. “The Supreme Court can’t take every case.”

But, she said, it’s too soon to know how the Supreme Court will ultimately come down in its ruling in Loper, which is expected by summer 2024. Arguments are likely to be scheduled for next fall.

The question the justices agreed to consider in the case asks the court to either overrule Chevron or “at least clarify” that a statute’s silence on a controversial power does not require judges to defer to agencies.

“This is not a done deal,” Rothschild said. “They have left themselves an opening to not completely overrule Chevron in the way the question was presented.”

She added, “Not all is lost.”

More major questions

If the Supreme Court broadly overturns Chevron deference, the decision would spell catastrophe for federal efforts to act quickly on climate.

The lower courts are already scrambling to sort out how far the justices intended to apply their finding in West Virginia that the major questions doctrine can be used to strike down significant federal rules.

Since that decision, Morrisey and other conservative challengers have raised major questions arguments against everything from Securities and Exchange Commission rules governing climate disclosures to the Biden administration’s plans to wipe out federal student debt.

It could take the courts a decade or more to figure out when and how the major questions doctrine applies — a delay that could have “colossal consequences” for a rapidly warming planet, said Harvard Law School professor Richard Lazarus during a recent panel discussion at the spring meeting of the American Bar Association’s environmental section.

“It’s going to take time to work it out,” he said. “In many settings, taking time is fine. It takes 10 years, it takes 15 years. That’s fine. Not for climate change.”

Elbert Lin, a partner at the firm Hunton Andrews Kurth LLP, said during the same panel discussion that he was less sure that the major questions doctrine would be used to stop all federal regulation.

“In a way,” he said, “there’s one sort of very flip answer to that, which is that not everything can be major.”

While Loper may not ultimately overturn Chevron, even a weakened agency deference standard could have the effect of expanding the reach of the major questions approach, said Chris Walker, a professor at the University of Michigan Law School and one of the authors of the 2017 analysis of Chevron in the lower courts.

“Now it doesn’t have to be a major question anymore,” he said. “It could be some other type of question.”

Reporter Robin Bravender contributed.