This term, after 40 years, the Supreme Court will reconsider its decision in Chevron U.S.A. v. Natural Resources Defense Council, in which it determined what level of deference to give an agency’s interpretation of a statute.[1] Chevron is perhaps the most cited case in legal history and has transformed the Court’s administrative law jurisprudence.[2] The question of whether to overrule Chevron comes to the Court in Loper Bright Enterprises, Inc. v. Raimondo. [3] In this case, commercial fishing companies challenge the procedure used by the National Marine Fisheries Service to promulgate a regulation that requires industry-funded observers to monitor compliance with fishery management plans under the Magnuson-Stevens Fishery Management and Conservation Act.[4]

Commentors are divided on whether the Court is likely to completely overrule Chevron, or whether the Court will instead limit the doctrine.[5] Either way, Chevron likely will not retain its current form for long.[6] The impact that this ruling will have on administrative and environmental law remains to be seen. However, there is reason to believe that even overruling Chevron may not have the outsized impact on environmental law that might be expected from such an infamous case.[7]

The Chevron doctrine is a two-step test.[8] In the first step, courts determine if Congress has spoken to the “precise question at issue.”[9] If the statute is ambiguous, courts move to step two.[10] However, “if the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”[11] In the second step, courts defer to the agency as long as their interpretation of the statute is reasonable.[12] Reasonableness is not a high bar. Typically, if a court finds the statute to be ambiguous, the agency will get deference. Chevron marks a fundamental jurisprudential shift in interpretive power from the courts, who have historically determined “what the law is,” [13] to agencies in the executive branch.[14]

Although there is some data to suggest that Chevron empowered environmental agencies to draft more progressive policies,[15] the doctrine has not necessarily had a watershed impact.[16] Since Chevron was decided, the Court has made numerous carve-outs, such that “the exceptions swallow the rule,”[17] and in recent years, the Supreme Court has applied Chevron somewhat infrequently.[18] Yet, at the Circuit court level, the doctrine is still alive and well.[19] If Chevron is overruled or substantially changed, the effects will be felt primarily by lower courts where it is most often applied.

By overruling or limiting Chevron, the Court will reclaim some of the interpretive power it gave to agencies when it created the doctrine. Even if the Court overrules Chevron, judicial deference to agencies is here to stay—albeit in a perhaps less deferential form. In 2019, in Kisor v. Wilkie, the Court rejected the petitioner’s request, that it overrule Auer deference, a “cousin” of Chevron.[20] Although the Court refused to outright overrule Auer, it reiterated strong limitations to the doctrine.[21] The Court emphasized reviewing factors, such as the character and context of the interpretation, agency expertise, and whether the rule reflects the agency’s “fair and considered judgement,” in addition to other factors such as reasonableness to determine the level of deference to give agency interpretations.[22] These factors, which echo the Court’s considerations in Skidmore,[23] a pre-Chevron agency deference case, may provide insight into the Court’s priorities for judicial review of agency action. Perhaps the Court will return to Skidmore in full force, or perhaps it will use these themes as a guidepost to cabin the reaches of Chevron.

In environmental law, the impact of overruling—or limiting—Chevron may be muted by other interpretive and judicial factors that already diminish Chevron’s force. Research suggests that Circuits show a “strong willingness to defer, under any doctrine or framework, to agency action when environmental scientific expertise is required.”[24] Additionally, policy preferences and interpretive philosophies are often indicators of how a judge will rule on an environmental law case.[25] Given these nuances, it is difficult to predict how Loper Bright will impact the future of environmental law. However, as this article discusses, there are reasons to believe it may not be the watershed that the fall of Chevron seemingly implies.

 

[1] Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc, 467 U.S. 837 (1984).

[2] Linda Jellum, Chevron’s Demise: A Survey of Chevron from Infancy to Senescence, 59 Admin. L. Rev. 725, 726 (2007).

[3] Loper Bright Enterprises, Inc., v. Raimondo, 143 S.Ct. 2635 (2023).

[4] Loper Bright Enterprises, Inc. v. Raimondo, 45 F.4th 359, 364 (D.C. Cir. 2022).

^[5] See Linda Jellum, Chevron’s Demise: A Survey of Chevron from Infancy to Senescence, 59 Admin. L. Rev. 725, 726 (2007). See also Kristin E. Hickman & Aaron L. Nielson, The Future of Chevron Deference, 70 Duke L.J. 1015, 1017-1018 (2021) (predicting that the Supreme Court will likely limit, but not completely overrule Chevron); Jack M. Beerman, Loper Bright and the Future of Chevron Deference forthcoming 64 Wm & M.  L. Rev. Online (2024) (encouraging the Supreme Court to overrule Chevron).

[6] Id.

^[7] Jason J. Czarnezki, An Empirical Investigation of Judicial Decisionmaking, Statutory, Interpretation, and the Chevron Doctrine in Environmental Law, 79 U. Colo. L. Rev. 767, 769 (2008). See also Phillip D. Warren, The Impact of Weakening Chevron Deference on Environmental Deregulation, 118 Colum. L. Rev. Online 62 (2018).

[8] Chevron, 467 U.S. at 843.

[9] Id.

[10] Id.

[11] Id. at 842–843.

[12] Id. at 844.

[13] Marbury v. Madison, 5 U.S. 137, 177 (1803).

[14] Cass R. Sunstien, Law and Administration After Chevron, 90 Colum. L. Rev. 2071, 2085–88 (1990); Linda Jellum, Chevron’s Demise: A Survey of Chevron from Infancy to Senescence, 59 Admin. L. Rev. 725, 728–729 (2007).

[15] E. Donald Elliott, Chevron Matters: How the Chevron Doctrine Redefined the Roles of Congress, Courts and Agencies in Environmental Law, 16 Vill. Envtl.  L.J. 1, 3–4 (2005) (discussing how “Chevron moved the debate from a sterile, backward-looking conversation about Congress’ nebulous and fictive intent to a forward-looking, instrumental dialogue about what future effects the proposed policy is likely to have. Shifting the focus to questions like which policy choice is actually likely to do a better job of clearing up the air is a progressive change”).

[16] Michael Herz, Chevron is Dead; Long Live Chevron, 115 Colum. L. Rev.1867, 1870 (2015).

[17] Linda Jellum, Chevron’s Demise: A Survey of Chevron from Infancy to Senescence, 59 Admin. L. Rev. 725, 871 (2007).

[18] Kristin E. Hickman & Aaron L. Nielson, The Future of Chevron Deference, 70 Duke. L.J. 1015, 1016 (2021).

[19] Id. at 1017.

[20] See Kisor v. Wilkie, 588 U.S. 2404 (2019). See also Kristin E. Hickman & Aaron L. Nielson, The Future of Chevron Deference, 70 Duke.  L.J. 1015, 1017 (2021); Auer v. Robbins, 519 U.S. 452 (1996).

[21] Kisor, 588 U.S. at 2408.

[22] Id. at 2415­­–2418.

[23] Skidmore v. Swift, 323 U.S. 134, # (1944).

[24] Jason J. Czarnezki, An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation, and the Chevron Doctrine in Environmental Law, 79 U. Colo.  L. Rev.. 767, 771 (2008).

[25] Id. at 769 (citing Cass R. Sunstein, David Schkade & Lisa Michelle Ellman, Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90  VA.  L. Rev. 301, 322-23 (2004) (“From 1970 through 2002, Democratic appointees voted against agency challenges 64% of the time, whereas Republican appointees did so 46% of the time.”).