With the Chevron Doctrine’s reversal by Loper Bright Enterprises v. Raimondo, the transformation of the regulatory landscape proves inevitable. The Chevron Doctrine previously granted federal agencies the power to interpret ambiguous federal statutes. Its dissolution poses a threat to legislative efficiency, with the judicial courts now taking the lead on such interpretations—an often lengthy and complicated process. But which communities are harmed when federal regulatory agencies can’t create public policy independently? The answer reveals a disproportionate impact on black and brown communities.
The Federal Trade Commission (FTC) is tasked with shielding consumers from unfair and deceptive business practices. A large historical track record precedes it: Congress empowered the agency to administer consumer protection laws in 1938, and the FTC has since benefited from the large range of latitude in rule-making granted by Chevron. While the FTC protects all consumers, their mission deeply impacts those most vulnerable to fraudulent business schemes: black and brown communities.
Research has indicated that unfair business practices affect consumers of color disproportionately. Most notably, these communities pay more car loan interest than their white counterparts and are more frequently targeted by government impersonators and deceptive advertisers. Consequently, black and brown consumers benefit most from robust FTC power that can combat such conduct. The main source of that power was its discretionary authority to define what an “unfair” business practice is–a power that now exists as a relic of the pre-Loper Bright era.
Similarly, the Environmental Protection Agency (EPA) is charged with administering landmark legislations like the Clean Air Act and the Clean Water Act. These acts respectively regulate emissions of hazardous air and water pollutants. These regulations are crucial for black and brown communities disproportionately exposed to harmful pollutants from waste facilities, as corporations routinely choose to place hazardous facilities in low-income neighborhoods in efforts to exploit the low cost of operations and relaxed industry regulations.
Even with EPA regulations in place, corporations have regularly taken advantage of these disadvantaged communities to offset the costs of properly disposing their waste material. For example, in Louisiana, a predominantly black neighborhood concentrated with petrochemical facilities has earned the name Cancer Valley: it’s burdened by the largest rates of cancer caused by industrial pollutants in America. Lax Louisiana state regulations perpetuate this disproportionate environmental harm–shedding only a small light on the danger in the weakening of environmental regulation.
The EPA and the FTC, through their regulatory power, play crucial roles in enhancing the quality of life of all Americans, but especially Americans of color. However, the legitimacy of their enforcement policies has been exposed to widespread critique just months after the overruling of the Chevron Doctrine. Corporate giants such as Kroger Co., Meta Platforms Inc., and Express Scripts have recently challenged the FTC’s powers through defamation lawsuits that claim the agency’s in-house court to be unconstitutional. Most recently, in response to the administrative court’s complaint that the corporate group unlawfully raised the price of insulin via an illegal drug rebate program, corporations attacked the validity of the administrative court as an institution. These corporations challenge the in-house administrative commissions established by Humphrey’s Executor, a landmark 1935 Supreme Court decision. The FTC’s in-house court is home to administrative proceedings that enforce consumer protection laws without federal judicial interference—a power formerly granted by the Chevron Doctrine. Their administrative court is crucial to protecting communities of color from practices that disproportionately affect them, such as deceptive marketing. It most recently had success in settling a suit against a personal finance app, Brigit, for these practices. Attacks on long-standing institutions just months after the Loper Bright decision demonstrate the new vulnerability these agencies now face in the protection of consumers affected most.
The EPA and other similar environmental agencies are under equally pressing criticism, as a slew of cases on the Supreme Court’s docket directly challenge the breadth of their authority as an environmental regulator. Most prominently, a Utah coalition representing private corporate interests hopes to narrow the environmental impact analysis required by the National Environmental Policy Act (NEPA). The group, Seven County Infrastructure Coalition, hopes to construct a crude oil railway in the Uintah Basin of Utah. The project is largely backed by private partners such as Rio Grande Pacific Corporation, a Texas-based private railroad holding company. Local environmental groups have stressed that the potential effects of increased crude oil refining on communities in Louisiana and Texas must be considered before approval of the 80-mile railway. While the District of Columbia Circuit Court agreed that the downstream impact of the railway on Louisiana communities—over thirty percent of which’s oil production is predicted to pollute the Louisiana Gulf Coast—should be a required consideration before construction, the Supreme Court has put the scope of the NEPA’s standards into question as it agreed to hear challenges to this assertion. Seven County Infrastructure Coalition v. Eagle County, Colorado is set to be argued on December 10, 2024. If the Court agrees with the Coalition, the power of federal agencies to interpret what kind of analysis is necessary under NEPA may be diminished if the Supreme Court chooses to set the standard solely to the direct consequences of industrial construction. Narrowing the scope of NEPA would enable corporations to further exploit low-income communities for business gain, restricting the accountability the EPA provides in requiring a consideration of social impacts before corporate developments.
While the ambush of litigation challenging federal regulatory discretion to interpret regulatory statutes post-Loper Bright has been correctly anticipated, the implications of the possible success of such challenges proves particularly worrisome for communities of color. Black and brown communities should remain at the forefront of analysis of a post-Chevron regulatory sphere, as they are most impacted by federal regulatory discretion, or lack thereof. By shedding light on the specific impacts of suppressing regulatory oversight, public policy can focus on how to curb the looming effects of a post-Loper Bright political landscape on already-disadvantaged communities.