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The True Intent of Overturning Chevron: Stifle Agency Rulemaking

   

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This article is republished from SciLight, an independent science policy publication on Substack.

It’s been a rough few weeks for the US legal framework for protecting public health and safety and science-based decision making. In a string of really problematic decisions, the US Supreme Court’s ultra-conservative majority has ensured that the hard job of regulatory agencies in protecting the public interest will get even harder, if not impossible in many instances. 

On June 28, their decision wiped away “Chevron Deference,” the ability of agencies to rely on reasonable interpretations of the tasks set for them by Congress based on their expertise. Instead, the argument goes, Congress should be clearer in its mandates, and if they are not, the courts will decide what the best interpretation of the statutory mandate is, not the experts in the agencies. And when in doubt, agencies should ask Congress to clear up any confusion. Yeah right. That will work….

Much of the commentary I have read, including posts from my colleagues on Scilight, has focused on the fact that the overturning of the Chevron precedent means that courts no longer must defer to the technical interpretation of agency experts to meet agency statutory mandates.  In effect, judges with no subject matter expertise on the substance of a case will be deciding the technical details and best approach for a huge range of issues in public health, environmental protection, public safety, conservation and more. 

To be clear, under Chevron, judges were advised to defer to agency experts on technical issues if their interpretation of the law was, in a specific judge’s view, “reasonable.” In other words, judges already had a lot of flexibility regarding how they considered the information from experts. But now, they don’t even need to consider deferring to agency expertise.  Some will, some won’t, most likely. The consequence is greater inconsistency in rulings and more confusion about what any given legal mandate means in practice. 

Of course, it also means that there is an even greater incentive for those who don’t like specific rules to challenge them in court, appeal, and appeal again. After all, with no guiding precedent, you might just find a judge or appellate panel that is all too ready to toss aside the opinions of those with scientific and technical expertise and experience and substitute their own views. 

That means virtually every regulation on private action intended to serve the public good will be delayed, delayed, and delayed. More work for the overburdened courts. There is more confusion for those trying to comply with regulatory rules. Less action that really serves the public interest, not private interests, business interests, or monied interests.

It is not hard to see that is the real intent of the Supreme Court’s ruling on Chevron. It is also the intent, and consequence, of the ruling blocking the use of Administrative Law judges by the SEC – and likely by extension other agencies. And even the intent of the presidential immunity case that seems so completely at odds with our Constitutional Democracy. Aside from the political consequences, if a president and their appointees are immune from consequences for inappropriate, even illegal, meddling in agency actions has any accountability gone by the board?  If the president orders that an agency violate its statutory mandate, who is accountable? 

I really have no idea and no way to find out until it happens – which it will…

I make no pretense of legal training, but I am a scientist and policy practitioner. In other words, I spent much of my career researching, reviewing research and analyses, and interpreting scientific evidence that guides policymaking for environmental issues. And as an agency official, deciding and putting my name to regulations promulgated pursuant to the agency’s statutory authority. In my case, that agency was NOAA, and the policies were conservation and management of living marine resources. That included the policy that was the heart of the cases that made it to the Supreme Court and resulted in this terrible overturning of precedent. At issue was whether the agency should require fishermen to pay the costs of onboard observers that were placed on their vessels to monitor and report on bycatch of species that were not supposed to be targeted by those fishermen according to their fishing permits. That bycatch includes other commercially valuable species as well as protected and endangered species such as whales and turtles. 

Congress ordered that bycatch be minimized and that protected species not be caught. Congress also authorized the use of observers. But Congress decided not to pay the cost for some observers and have that borne by the businesses conducting the activity. And in big fisheries such as in Alaska, the cost is borne by the fishing businesses. But Congress didn’t say fishermen should pay the cost in this specific fishery for Atlantic herring, even though that fishery is quite profitable and has been since the herring stocks recovered from massive overfishing – a story for another time.   

So as an agency official, when the agency isn’t given funds for observers but is required to reduce bycatch, what are the options? Ignore the requirement to reduce bycatch? Ask fishing vessels to cover the cost? Close the fishery? A “reasonable” interpretation, but I suppose perhaps not the only one, is that fishermen bear some of the cost (note: in no cases do they bear all the cost even though they are the ones impacting the public resource). 

Does anyone seriously think that going back to Congress and asking them to be clearer about who should bear the cost is an option if you are going to do your job of meeting the mandates enacted into law already? As far as I can see, Congress can barely agree to fund the government and pay already incurred bills! This issue of observer costs has been around for decades. Should the agency have just waited until Congress is “clear,” and in the meantime, perhaps all the whales, turtles, and dolphins will be killed? Other fisheries will lose out because of the herring fishery bycatch……

Now, with any semblance of deference to expertise gone, what will officials do? Most likely, be even more cautious. Move more slowly. Let the courts decide on very technical issue. After all, the highest court in the land just said to hell with your expertise and reasonableness!

Make no mistake, this was a long-term strategy not to improve agency decision making, but to make it much much harder. To stymy regulations so that businesses have and even freer hand. It is big businesses and an army of lawyers who already have an upper hand versus any regulatory control. Now that hand may be even freer. 

And who loses? Well, you guessed it. Everyone else.

The court is not making esoteric rulings that don’t matter to most people. They are taking a chainsaw to our system of health, safety, and environmental protections. 

 

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