Environmental Law In A Post-Chevron World

Last week, Venable's Government Division offered its general thoughts on the fallout from the Supreme Court's reversal of the long-standing Chevron deference principle. Here, the Environmental Practice Group offers some of its own reactions.

I served as chief counsel of the Federal Highway Administration. My firm bio proudly states that I was responsible for administering all legal issues on behalf of the agency. That's only half true.

Every week or so, agency leadership would gather for a meeting to update progress on key initiatives. When it came my turn to speak, I offered information to the assembled group (largely engineers and planners) about recent developments in transportation law and regulation. As chief counsel, that was my job.

But one member of the leadership team inevitably and regularly interjected following my updates. That individual said, "That's not a legal question; it's a policy question." It happened every meeting. You could set your clock to it.

Turns out, I was right all along. Using the rationale in the Loper majority, I might have said, "I'm sorry, engineers have no special expertise in resolving statutory issues. Lawyers do." For effect, I could have worn a robe and wielded a gavel.

In essence, that's the significance of the Supreme Court overturning the Chevron doctrine. It's not that the majority doesn't trust agency experts, or even that in many instances it wouldn't have decided that agency experts may have interpreted an ambiguous statute perfectly. It's that it should have been the judge in the first instance making that call.

A "power grab," or "hubris squared," says Justice Kagan in her dissent. I imagine that's exactly how the FHWA engineers would have felt if I had said to them, "Sorry, I'm the lawyer in the room, and I get to decide what the statute means." (I only ever did that in the shower the next morning. Chicken.)

Now that Chevron deference is history, the question is how this will play out in practice. Jay Johnson and I have the following thoughts:

• Writing and defending federal regulations is hard enough. It will get harder without the backstop of Chevron deference to an agency's interpretation of law. The "chilling effect" on EPA and other agencies is real.
• Congress will assume a higher burden to write laws that express its intent more clearly if it intends federal agencies to act. In theory, for example, Congress could pass the "Wetlands Protection Act of 2024" to clarify the definition of "waters of the United States" and direct EPA and Corps to adopt regulations that incorporate that legislative definition. Or they could pass the "PFAS Phase-Out Act of 2025." Do you expect that to happen? We didn't think so.
• EPA's efforts over the last 15 years to use the Clean Air Act to address climate change, specifically to control GHG emissions, are in clear jeopardy. It will become much more difficult to defend vehicle emissions standards, the power plant rule, the SEC GHG disclosure rule, and others.
• Litigation over agency action, already abundant, will explode. Between the "major questions" doctrine, Loper's shift of power to the courts to review agency action, AND an almost unlimited statute of limitations to file Administrative Procedure Act cases, the odds of favorable outcomes for those opposing regulation have increased tremendously. And if challengers get to pick their venue, why wouldn't they be filing more cases?This applies to both industry groups and environmental NGOs.
• The recent history of WOTUS demonstrates what the regulatory horizon may look like post-Loper. At present, there's an injunction in place against the 2015 rules in 27 states, one set of rules applied in 23 others, and pending challenges in at least two separate courts that could further complicate that math. Competing regulatory challenges will be brought in disparate venues and will create many more scenarios like that. "Regulatory certainty," often the preferred outcome for industry, could be a thing of the past.
• The number of citizen suits that will be filed will also increase substantially. Environmental groups won't wait around for the agencies to act.

While some of these ideas constitute unavoidable speculation, one need only survey a fraction of the reactions to the Loper decision to realize they may not be exaggerations.

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