The Chevron doctrine was established in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), during a period of widespread agency budget-cutting. While Chevron was initially celebrated as a win for the deregulatory state, it has since evolved into a cornerstone legal test in the world of administrative law. Loper Bright Enterprises v. Raimondo (Loper Bright) and Relentless, Inc. v. Department of Commerce (Relentless), two cases on the Supreme Court’s docket this year, seem poised to overturn the regulatory power that Chevron provided for government agencies.
The case of Chevron specifically reviewed the regulatory regime established by the Clean Air Act (CAA). The Environmental Protection Agency (EPA) had long defined the term “stationary source” within the CAA to include each individual source of pollution within a plant or a factory. In 1984, however, the EPA redefined it: “stationary sources” started to encompass entire plants and factories, rather than the machinery within them. The Natural Resources Defense Council challenged this, arguing that it defeated the purpose of the CAA by allowing corporations to easily dodge regulatory review. In a unanimous 6-0 decision, however, the Supreme Court ruled against the Council, establishing the principle of Chevron deference. As long as the meaning of the statutory text was ambiguous – and as long as the agency’s interpretation of that ambiguity was relatively reasonable – federal courts had to defer to agency interpretation.
The modern Supreme Court has maintained a general antipathy towards Chevron’s principles – while, so far, refusing to explicitly overrule the case. For example, American Hospital Association v. Becerra (2022) and Becerra v. Empire Health Foundation (2022) both involve challenges to the Department of Health and Human Services (HHS)’s interpretations of the Medicare act. In American Hospital Association, rather than addressing how the HHS interpreted its power to “calculate and adjust” drug prices under the Medicare Act, the Court claimed instead that HHS had failed to properly survey the “average price” of drugs before it made its modifications. In Empire Health Foundation, the Court held that the definition of Medicare “eligibility” merely had to be read consistently throughout the entire statute. Neither applied Chevron principles, even though both could have been resolved by asserting the power of the HHS to promulgate its reasonable interpretation of healthcare statutes. Niz-Chavez v. Garland (2021) and West Virginia v. Environmental Protection Agency (2022) involved agency interpretations of a 1966 immigration reform act and the CAA, respectively – and yet the Court failed to mention the Chevron doctrine in either.
Loper Bright and Relentless pose a more direct challenge to Chevron deference. Both address the Magnuson-Stevens Act, which obligates the National Marine Fisheries Service (NMFS) to “implement a comprehensive fishery management program.” Part of this program is a system of federal observers that are randomly assigned to different fishing vessels. NMFS holds that private businesses, such as Loper Bright and Relentless, should pay for the costs of these observers. With the help of a public-interest law firm, Cause of Action, Loper Bright challenged the payment requirement. In both cases, the lower courts ruled against the challenges, citing directly to Chevron. Both Loper Bright and Relentless then requested certiorari, asking the Supreme Court to overrule Chevron entirely.
Ironically, the Loper Bright case seems to mirror the same circumstances that drove the initial Chevron ruling. Chevron, at the time, went to court because it would benefit directly from court deference to agency interpretation. While Loper Bright and Relentless are small, local fisheries, they are backed by larger industry interests that are going to court now hoping to benefit from strict judicial review of agency action. Cause of Action’s attorneys have been traced back to Americans for Prosperity, a libertarian policy advocacy group explicitly backed by Koch Industries. Koch, an oil-industry business magnate, has supported deregulation in dozens of different industries. Given that the many factories and plants his subsidiaries own would benefit significantly from overturning Chevron in favor of a softened regulatory regime, it comes as little surprise that Koch would be found with pecuniary interests in Loper Bright and Relentless as well.
Oral arguments were heard on January 17th for both cases, with a joint decision expected this summer. If Chevron is overturned, the future of agency regulation is in peril. Rather than allowing agencies to update their regulations based on real-world conditions, any amendments would have to be passed through Congress to avoid potential judicial review. This would significantly slow down regulation: while agencies pass more than 3,000 rules per year, the polarized House and Senate take much longer to enact – let alone edit – any bills whatsoever, particularly with enough specificity to avoid potential ambiguity. Agencies also rely heavily on the expansive interpretation of decades-old statutes, adjusting their language and definitions to better pursue the overall statutory goals that Congress has provided them. With the threat of litigation looming on the horizon, how vulnerable are these interpretations going to become?
David Doniger, one of the original lawyers in the Chevron case, called the Loper Bright litigation an obvious way to “cloth[e] nakedly private interests in highfalutin constitutional arguments”: the separation of powers, the limits of statutory interpretation, and the question of who Congress has delegated this interpretation to. Without Chevron – and facing the realities of a conservative Supreme Court and a host of conservative federal judges hand-picked by Donald Trump –these “private interests” might end up benefiting from the same constitutional arguments used to limit them in the 1980s.