Transcript: Supreme Court Rules: Reversal Of “Chevron Deference”
Marisa: Hi everyone. I’m Marissa Desautel, an environmental attorney in Rhode Island.
Clarice: And I’m Clarice, who’s a little rusty on her intros today.
Marisa: Well, and, and no, um, no fault of your own. We’ve dialed back the number of podcasts that we’ve been doing. So it’s been a minute. But here we are. And speaking of having been a minute, I think keeping up with maybe the rustiness and the time away, we read two different topics for today.
So I prepared for next week’s topic, and you prepared for a surprise.
Marisa: Yeah. I prepared for, I prepared for a topic that you had no knowledge of. Uh, typical Marissa fashion. I thought we were talking about Chevron deference. Which was an issue that the United States Supreme Court decided recently. And, um, I had already emailed Clarice with a different topic.
So for those listening, if it’s a struggle bus, it’s because, um, I suck at this, but I thought that we should talk about Chevron deference as a priority issue because the decision came out recently, and it is. It’s a huge 180 for environmental law practitioners, especially at the federal level in federal courts, but at state levels as well.
Do you have any idea what I’m talking about?
Clarice: Well, I was going to back up and say, can you explain a little bit of what Chevron deference is? Because it’s not that old. It’s only, I mean, it’s only 30, 40 years old. It’s an 84. The fact that it feels like it just kind of came and went, but tells us what it is.
Marisa: Chevron deference and I, when the, when the U S Supreme court’s decision came out, um, I believe it was at the end of June. So not that long ago, a couple of weeks ago, the, uh, the Rhode Island environmental bar were all a Twitter. We were calling and emailing and texting each other with various perspectives and opinions on it.
It’s a huge deal. And what is it? It is a 40-year-old precedent that was set by the U. S. Supreme Court during a case that Chevron was a party to, and it’s become known as Chevron deference colloquially. Yes. Um, because that’s just how the case law came out where, um, the U.S. Supreme Court said where a federal statute is not ambiguous, so if a federal statute is clear on its intent and what it means, then the judicial branch of government should give the agency interpreting that statute and regulation a degree of deference because the theory was the people working at these agencies are the subject matter experts.
And sometimes Statutes are written with some flexibility because the legislative branch wants to leave some room for the experts to figure out exactly how to implement the statute through their regulations.
So, Uh, there was a, um, a strong, in my opinion, a, a strong inference that if an agency was interpreting a, a statute or its own regulations, the courts would not overturn or change those decisions unless the statute itself was ambiguous and then the courts could go into a, a different kind of analysis.
What’s interesting is it sounds like this applies to statutes where there is clarity. And not necessary, so it’s sort of that idea of, it feels like there’s leeway for statutes with clarity when I would instantly imagine that there’s, you know, sort of wiggle room or space for statutes without clarity.
Like there’s that idea of you don’t know, so we’re going to give you the space. Why are they giving the space to the clarity? If a statute is clear then the agency has to follow exactly what the statute says, and there, there’s no Chevron deference given to that situation. However, if the statute in question is ambiguous, then the agency was allowed to go in and put its own interpretation on it.
Okay, we’re getting we’re saying the same thing, right? Yes, we are. So what does this mean now that what happens now that they don’t have this deference doesn’t exist? Well, good question. One of the conversations I was having with another environmental attorney in Rhode Island is how is this going to impact.
State practices: If you’re not a federal agency or operating under a federal statute, does this idea of Chevron deference trickle down to the states as well? In the past, when I’ve represented state government, you bring up Chevron deference, even if you’re in a state court or a state administrative venue.
You know, it’s one of those foundational doctrines. In environmental law, and I imagine from now on, definitely in federal court, you’re not going to be able to use it anymore, but I think also we’re going to start seeing that in, in state courts. It’s just a matter of time. Any pros and cons of this? Things that we’re excited about versus things that we hate?
Well, look, the bottom line is it doesn’t, in my opinion, it doesn’t matter which branch of government you’re working for. Once you start providing leeway and deference to one party over another, you’re going to have an abuse of that. Deference and abuse of that power. My concern is now federal agencies have expertise in their fields like the Environmental Protection Agency.
The thought there is that the subject matter experts are the ones interpreting federal statutes. And so they should have leeway. The issue is. Once you put people in that situation, they’re going to make mistakes. There’s going to be favoritism. There’s going to be, um, uh, opinions that are outdated, but taking that deference away from the experts and giving it instead to the U S Supreme court or the lower courts, that’s not any better.
Now, judges are. People and they make mistakes. They don’t get it right. And they’re not subject matter experts for those of us that are appearing before judges where before you could, you could come in and say the agency’s decision is based on this, this rule of difference that we’ve got now does the agency or the, um, the EP, the federal agency have to educate the judge and provide a subject matter expert.
Okay. And get that expert qualified subject to, um, uh, uh, uh, something called a Daubert review where the courts decide if someone is qualified to be an expert. So if someone’s not qualified to be an expert, but the court needs to be educated on the subject matter, then there’s a huge gap there. And I don’t, I don’t know how you bridge that gap.
Yeah. I think the two big concerns, which you pointed out that I first thought of when I was asking this question, were the idea of. It sounds like there is space for bias built in whether or not a judge or a deciding body leans a certain way or prefers a certain thing. There’s the space to pick that side, and then there’s also the concern that this judge now has to have a sort of deep and rounded understanding of what that topic is, and frankly, that’s not them, that’s not their job.
That shouldn’t be an expectation of them. How can they, you know, suddenly Learn to the same level as the expert and understand all the nuances involved in this. So I’m not sure how they’re going to be able to make these decisions when they are limited to their expected scope. It’s not right. Yeah, I would think just sitting here thinking about it as you’re talking, if I’m before a federal court judge, and I’m representing an agency, I think I’m still gonna, I’m still gonna use the underpinnings of Chevron deference to make the case that even though it’s not a slam dunk and you don’t, you know, you can’t just defer to the agency on everything.
There are still subject matter experts. So, opposing parties have to hire their own subject matter experts and let the judge kind of decide who they want to rely on. Um, so I would. I mean,, the facts of the matter are still there. The agencies have the subject matter experts, but there’s room now for people to come in and say, forget it, forget it.
You know, the, the, even if the statute is unambiguous, you don’t have to defer to what the federal agency has decided. Hmm. Does this make cases, do you think this is going to make, um, litigation more expensive? Yes. Because now it feels, yeah. Cause now there’s that idea of, well, We, we have to have an expert here.
Just to make sure everybody is speaking the same language, right? Yeah, the pendulum swings both ways On deference agency power now. It’s going back the other way. No Chevron deference power to Judiciary, it’ll probably swing back where the legislature says this is not constitutional. It’s not what we wanted. They might create new legislation But yeah in the meantime For practitioners, litigation is going to be more expensive.
Uh, you’ve got even more of an unknown in terms of if you, if you represent the government, I read a statistic somewhere that said even with Chevron deference in place, government agencies were successful on only like 70 percent of their cases. Wow. So, without Chevron deference, will they be less successful, or will the courts start looking to the agencies to just explain things more?
And then they’ll, they’ll rule the same way that they, that they would have. So that’s, you know, it’s 70%, it’s a lot, it’s more than 50%, but it’s not 100. Yeah, yeah, I guess we’re gonna have to start to see, I guess we’re gonna have to watch to see what cases do come through and see how that happens and, yep, the, the US Supreme Court case that was decided in June that took away the Chevron deference, um, was called Loper Bright Enterprises versus Raimondo.
If you’re a Rhode Islander, you know that Raimondo used to be the governor here. She has since moved to, um, the case was against the, um, National Marine Fisheries Service. So it was a Rhode Island case and came out of Rhode Island. It had to do with whether the government could require commercial fishing vessels to pay for a federal government monitor.
A person like a government appointee to monitor compliance with the Magnuson-Stevens Act, which has to do with size and catch limits for fishing. Um, and the government was saying, okay, Loper Bright Enterprises and other commercial fisheries. You have to have this government-appointed inspector, and you have to pay for it, and I guess, I think it was going to be about 700 a day.
So the company said, Hey, what are you doing here? Like you’re, you’re. You’re killing us. You can’t impose a 700-a-day fee under the Magnuson-Stevens Act because it’s not, it’s not provided for in that statute. And the U. S. Supreme Court said, we agree, uh, National Marine Fisheries, you don’t have, uh, The, the wiggle room that you did because the Magnuson Stevens Act is very clear and we are taking away Chevron deference.
So that just gets me back to that thought about the pendulum swinging. Yeah, did the National Marine Fisheries Service go too far in insisting on daily monitors and having the company pay the fee associated with them? The U.S. Supreme Court says yes. I bet commercial fisheries businesses would say yes as well.
I don’t know what the agency’s thought process is. I’ve not spoken with them, but, uh, that’s my take. I hate to say it, but this is going to end in a, we have to wait and see. Yeah. We have to see what this actually looks like in practice. Well, if you have any comments, questions, concerns, or thoughts about this, um, Again, feels like a short-lived, uh, the short-lived precedent, the short-lived deference, uh, let us know.
