The U.S. Supreme Court last week overturned the Chevron deference doctrine that for 40 years had given federal regulatory agencies the upper hand when challenged in court. Legal experts said the move will likely have mixed results.
The U.S. Supreme Court last week overturned a decision that for 40 years had given federal regulatory agencies the upper hand when challenged in court.
The court’s 6-3 decision — which CNN said “stands to transform how the federal government works” — reversed the landmark 1984 decision in Chevron v. Natural Resources Defense Council, a case that gave rise to what’s known as the Chevron deference doctrine.
Under the Chevron doctrine, federal agencies had the power to interpret a law they administer when that law is vaguely written, and courts were required to defer to the agency’s interpretation of a statute.
In a ruling by Chief Justice John Roberts, the justices rejected the Chevron deference doctrine, calling it “fundamentally misguided.” They said courts should rely on their own interpretation of ambiguous laws rather than having to accept the agency’s interpretation.
W. Scott McCollough, lead litigator for Children’s Health Defense’s (CHD) Electromagnetic Radiation (EMR) & Wireless cases and a practitioner of administrative law for more than 40 years, told The Defender he was “happy to see the Chevron deference doctrine go” because it “mostly benefitted the powerful.”
Agencies like the U.S. Food and Drug Administration (FDA), the Centers for Disease Control and Prevention and the Federal Communications Commission are supposed to work for the public — but when they are captured by industry, deferring to their “expertise” may mean deferring to the preferences of the industry they’re supposed to regulate, McCollough said.
“The bottom line is that the doctrine gave the powerful — the people who control the agencies — a huge thumb on the scale,” said McCollough, “making it nearly impossible for regular people to challenge agency favoritism in court.”
Dr. Meryl Nass said on Substack that the crux of the issue is whether the agencies or the courts (and plaintiffs) should have more power.
“Today, the agencies have been captured so I prefer to take away their power,” Nass said. “But someday if they can be reined in to work for the public, I might wish they had more.”
Who has final say on interpreting the law?
Kim Mack Rosenberg, CHD general counsel, told The Defender, “This ruling answers the question, ‘If a law is ambiguous, who has the final say on it?’”
Deference to the Chevron decision allowed agencies to essentially be the ultimate decision-makers in interpreting ambiguous laws, giving tremendous power to federal agencies, she said.
“Unfortunately,” Mack Rosenberg continued, “many of these agencies are ‘captive agencies’ with close ties (including financial ties) to the industries they are charged with regulating. So they lack objectivity with respect to those industries.”
The ruling means federal judges now have more authority to interpret these laws, she explained.
Mack Rosenberg said the ruling is very important for CHD since “many of CHD’s lawsuits seek to hold government agencies accountable for their action or inaction, and we anticipate future litigation in this area as well.”
Friday’s ruling doesn’t reopen old decisions, so prior cases that used the Chevron deference doctrine in reaching an outcome won’t suddenly be moot.
Removing the deference established by Chevron does not mean that courts will simply ignore agencies’ interpretations, Mack Rosenberg said, but the ruling gives courts more potential authority to interpret ambiguous laws without being bound by agency interpretations.
“However,” she added, “there is also a drawback.”
The courts many times don’t have the niche field expertise required to clarify ambiguous details about certain laws. This may be a problem, especially in lawsuits regarding laws and regulations that are very scientifically dense or technical.
When Congress passes laws, it sometimes intentionally leaves technical details ambiguous, Mack Rosenberg said. “Congress doesn’t have the expertise to write out everything in fine detail,” she said. “The idea is that the executive agency — with its expert staff — interprets and implements that law. That’s what federal agencies and executives are for.”
For instance, the U.S. Environmental Protection Agency hires people with Ph.D.s in the environmental sciences, she said. “A federal judge may have zero expertise on environmental issues.”
McCollough pointed this out, too.
“Most judges hate administrative law cases,” he said. “The topics make their heads hurt because they don’t know the difference between nitrous oxide and nitrogen oxides and prefer to not have to figure that out.”
Dissenting Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, voiced the same concern.
In her opinion, Kagan stressed that agencies are more likely than courts to have the technical and scientific expertise to make decisions on interpreting technical standards and laws.
She said the Chevron deference doctrine “has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”
Ruling could cause ‘shock to the legal system’
Kagan predicted last week’s ruling “will cause a massive shock to the legal system,” possibly casting doubt on established law interpretations, “threatening the interests of many parties who have relied on them for years,” she said.
Amy Howe in an article for SCOTUSblog wrote that when the Supreme Court issued its decision in the Chevron case more than 40 years ago, the decision wasn’t regarded as particularly consequential.
“But in the years since then,” Howe wrote, “it became one of the most important rulings on federal administrative law, cited by federal courts more than 18,000 times.”
Kent Barnett, a University of Georgia School of Law professor specializing in administrative law, told CNN, “There is no substantive area that this doctrine does not touch.”
Some researchers said the reversal of the Chevron doctrine could undermine the FDA’s drug and device approval process.
Currently, drugs and devices are approved by the FDA based on evidence that companies submit from what the law calls “adequate and well-controlled” investigations — but the definition of “adequate and well-controlled” has been left up to FDA interpretation.
Substacker Matt Stoller said the new ruling “has invited chaos in government.”
“Thousands upon thousands of regulations and laws were crafted under the premise that agencies could interpret their statutes themselves and write rules executing them,” he said. “Now lifetime appointed judges without actual expertise are going to have the chance to rewrite all of them.”
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