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By Graham Rex, F22 Environmental Clinic Student
Chevron has done wonderful things to protect the environment. No, not the company Chevron—I’m talking about Chevron, the legal doctrine. Under the Chevron doctrine, courts defer to agencies’ interpretations of ambiguous statutes, so long as such interpretations are reasonable. This idea, articulated in 1984 in the U.S. Supreme Court case Chevron v. NRDC, has provided the EPA and other federal agencies with bountiful power to decide how to wield the regulatory authority Congress delegates to agencies. But many court observers think we may soon see the demise of Chevron deference.
Let’s begin with the basic framework of the Chevron doctrine. Applying the doctrine involves two steps: First, the court asks whether the statute is ambiguous. If it is not, then that is the end of the matter—Congress’s clear intent governs. If the statute is ambiguous, then the court advances to step two, where it asks if the agency’s interpretation is a reasonable one. If the agency’s interpretation is reasonable, the interpretation is allowed to stand. If it is unreasonable, the court strikes down the interpretation.
Agencies such as the EPA have mostly used their interpretive power under Chevron to develop more stringent environmental regulation. But Chevron hasn’t resulted in only flowers and sunshine for the planet; the doctrine also gives agencies the authority to make decisions that harm the environment. Indeed, the Trump administration’s rollbacks on environmental regulation buttress the fact that Chevron is a double-sided sword. The bottom line is that Chevron gives agencies lots of power.
Not surprisingly, Chevron deference has been quite a divisive issue. Conservatives have criticized the doctrine for unconstitutionally delegating legislative power to make laws, and for usurping judicial authority to interpret the laws. Liberals respond that expert agencies are better equipped than Congress to handle complex regulatory decisions, and that the constrained, guided authority Congress delegates to agencies is an inevitable part of a functioning government in a sophisticated society.
As of late, the Supreme Court has largely dodged the issue. Many high-stakes administrative law cases, including the recent West Virginia v. EPA majority opinion, have failed to even cite Chevron. But some scholars think Chevron’s demise is imminent, and for good reason. For one, the Court hasn’t actually applied the doctrine since 2016. More alarmingly, several of the Court’s current Justices have indicated their opposition to the Chevron doctrine. Justices Thomas, Gorsuch, and Kavanaugh have suggested that Chevron violates separation of powers principles. Justice Alito has characterized Chevron as a “once celebrated, and now increasingly maligned precedent.” Chief Justice Roberts has argued that Chevron should be narrowed. Justice Barrett’s views on Chevron are still not clear, but it seems unlikely that she is a huge fan. Justices Kagan, Sotomayor, and Jackson would surely support Chevron deference, but they are thoroughly outnumbered.
So what will happen to the Chevron doctrine? Many court watchers thought the Court would finally look Chevron in the eyes in West Virginia v. EPA, but the Court skirted the issue by reviving the major questions doctrine. Chevron’s ultimate fate remains to be seen, but its odds don’t look good. One thing is for certain: the current Supreme Court is extremely unlikely to apply the Chevron anytime soon.
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