Attack on Chevron Threatens Flood of New Law Cases, Delay in Resolving Cases, and Strain on Federal Courts

It is nearly impossible to conceive of any significant environmental regulation over the past four decades that has not involved the application of the "Chevron deference." It's one reason conservatives and others, e.g., the fossil fuel industry, are now rooting for the US Supreme Court (SCOTUS) to strike down the deference™ in the name of the separation of powers set out by the US Constitution. The instruments of the deference™'s possible destruction will be the high court™s decisions in two cases involving herring fishing. The cases, Loper Bright Enterprises v. Raimondo and Relentless Inc. v. US Department of Commerce, could be to administrative law what Dobbs v. Jackson Women™s Health has been to as a woman™s right to an abortion.

A decision is expected this summer. The Supreme Court agreed to hear the cases, but the only question it will be addressing is whether to reverse or refine the decision in the 1984 case of Chevron v. NRDC that gave rise to the doctrine named for it. It will not be deciding whether the $700 daily charge to herring fishing boat owners to cover the cost of inspectors is reasonable. In Part 1 of "Does Climate Policy Have a Herring Problem," I offered an overview of the Chevron deference, which has it as settled law over the past 70 or more years that under certain circumstances, the federal courts should defer to the expertise of federal agencies to provide the clarity that a bill might lack.

Ambiguity is often necessary for the passage of legislation. However, it raises the question of whether agencies are being given too much power. In Part 2 of the series, I'll be addressing the untoward negative consequences of doing away with the deference doctrine. As imperfect as it might be, the current system that accommodates an agency's filling in of the gaps found in legislation more or less works. There are very practical reasons for the high court to more or less maintain the current balance between the three branches of government that would kick the current system into a cocked hat that would more than strain the resources of the judiciary. In Part 3 of the series, I explain why I believe Justice Roberts and Barrett will side with the liberals on the high court bench to maintain the branches' current relationships and powers.

It's likely to send conservatives on a warpath to the newly "woke" Supreme Court, as MAGA(ets) see the dismantling of the administrative state as a core principle of their movement. Who has the power--to do what? Beyond the particulars of the Loper and Relentless cases, loom tough constitutional questions about the separation of powers between the three branches of government. Who has the power to write, administer, and interpret the laws of the land? Who has the constitutional authority to say what's ambiguous?

And more, where does the power and responsibility of one branch end and the next one begin? Can Congress share or shed its lawmaking responsibilities to the executive branch? Which branch is more "accountable" to We, the people? In political terms, the Chevron de