By Will Merrix 
Photo Credit: Joe Raedle- Copyright: 2019 Getty Images
The Birth of Chevron Deference
The Clean Air Act was passed into law and enacted in 1955. It was the first major piece of legislation seeking to curb and study air pollution in the United States. In 1970, significant amendments were added to the law, shaping the core components it functions with today. The amendments in 1970 included holistic federal and state regulation, new regulatory programs, and expanded grounds of enforcement. By 1977, some states had still not met the air quality requirements set out both in the original law from 1955 and the additional amendments in 1970. Consequently, Congress passed another set of amendments in 1977. The 1977 amendments to the Clean Air Act mandated states establish permitting programs for any modifications to– or new constructions of– manufacturing plants. In describing the new regulations and compliance, the amendments repeatedly used the phrase “stationary source” to refer to sources of pollution subject to the permitting program without clarifying what should be considered a “stationary source.”
Four years later in October 1981, the Environmental Protection Agency (EPA) under the Reagan Administration promulgated a new rule redefining “stationary source” to mean only an entire industrial plant, while excluding the regulation of individual pieces of equipment at a plant. The rule was labeled the “bubble rule” as it effectively encased industrial plants in a fictional bubble, which allowed companies to treat all machinery in one industrial plant as if their individual emissions were aggregated in a bubble. Due to the new “bubble rule,” companies like Chevron were able to install new– or modify existing– pieces of equipment without obtaining the proper permitting, so long as the total emissions of the entire plant were not increased. For example, one smoke stack could be missing a filter but as long as total emissions were below a certain level, that was no longer cause for a violation. The rule was challenged by multiple environmental groups including one called the National Resource Defense Council (NRDC).
The lawsuit reached the Supreme Court after the EPA lost on appeal to the U.S. Court of Appeals for the District of Columbia. Upon reaching the Supreme Court, the question was whether the EPA’s decision was based on a reasonable construction of the statutory term “stationary source.” In a 6-0 ruling, in which Chief Justice Rehnquist, Justice O’Connor, and Justice Marshall did not participate, Justice Stevens wrote for the majority. In his opinion, Justice Stevens said, “If the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Justice Stevens central holding of Chevron v. NRDC (Chevron) created what became known as Chevron deference. Chevron deference refers to a canon of legal theory and jurisprudence that gives more discretionary power to executive agencies by preventing the court from being overbearing on regulatory actions.
Chevron deference comes into play when Congress leaves ambiguity in a law. In these situations, courts should defer to the interpretation given by the agency so long as it is “reasonable.” It functions as a two-step review. First, courts decide if the statute is “ambiguous.” If it is not, the agency must meet the definition the court has found within the language of the statute. If it is, the court proceeds to step two, in which it decides whether the agency’s proposed rule is “reasonable.” Chevron deference allows courts to retain their image of neutrality by avoiding questions in which they would be forced to implement policy preferences; they can instead leave the discretion of policy enforcement in the hands of the executive branch. In other words, Chevron deference also serves to block courts from substituting their “own construction of a statutory provision for a reasonable interpretation made by an [executive] agency.”
The Life of Chevron Deference
According to recent analysis by the Court, Chevron was uncontroversial when initially decided. Agencies had very little trouble clearing the “reasonable” test and courts appear to have remained as strong, apolitical institutions in the years after Chevron was decided. Agency interpretations reviewed under Chevron deference between 2003 and 2013 were upheld 77% of the time which indicates this fact.
Over time, the perception of Chevron deference began to change. It became widely derided within some conservative circles as the poster child of an ever-growing government. Some Justices of the current Supreme Court were among its critics. Justice Gorsuch has called Chevron deference a “judicial abdication” and “a violation of the separation of powers.” Chief Justice Roberts authored a dissent in 2013 in which he described Chevron deference as too presumptuous in an agency’s favor, saying a “delegation must extend to the specific statutory ambiguity at issue” rather than be carte blanche. Justice Thomas has repeatedly condemned Chevron deference in his opinions, as evidenced by his dissent in Baldwin v. U.S. which sought to overturn his own majority opinion from an earlier case in which he relied on Chevron deference. Baldwin was indicative of a major shift in Thomas’s legal opinion on the topic and was further entrenched by his later opinions.
The Decline of Chevron Deference
The rise of the anti-Chevron ethos is embodied in a method of statutory interpretation called the “nondelegation doctrine.” The nondelegation doctrine primarily claims that Congress cannot delegate its duties to the executive branch by way of executive agencies. In relation to Chevron deference, this manifests in the assumption that if Congress has not spoken on a specific issue, then they have delegated implementation and logistics of the issue to the respective agency. One of the ways the Supreme Court has reduced Chevron deference in recent years is by using part of the nondelegation doctrine known as the “major questions doctrine.” The central idea behind the major questions doctrine says there are some things too significant for agencies to decide, so statutes regarding these “major questions” should never be read as delegating interpretive authority to an agency. Justice Scalia penned a controversial opinion in 2014 in which he pulled together the Court’s opposing ideologies; the 9-0 ruling forced concessions from competing blocs on the Court. The opinion captured the essence of the major questions doctrine. The Court wrote that they “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
The growing anti-Chevron sentiment gained a strong majority of the court with the addition of Neal Gorsuch in 2017, Brett Kavanaugh in 2018, and Amy Coney Barret in 2020. With these justices on the bench, the Supreme Court has handed down multiple rulings curbing the influence of Chevron deference. The principles of the major questions doctrine were used to sideline Chevron deference in King v. Burwell (2015), Alabama Association of Realtors v. Department of Health and Human Services (2021), National Federation of Independent Businesses v. Occupational Health and Safety Administration (2022), West Virginia v. EPA (2022), American Hospital Association v. Becerra (2022), and Biden v. Nebraska (2023). While all of these cases discarded Chevron deference in favor of the major questions doctrine, none of them completely overturned Chevron v. NRDC.
The Death of Chevron Deference
In 2020, the National Marine Fisheries Service (NMFS), a branch of the executive agency known as the National Oceanic and Atmospheric Administration, instituted a new rule establishing “industry-funded monitoring in the Atlantic herring fishery.” The NMFS rule amended part of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) to require the owners of fishing vessels in the Atlantic herring fishery to pay the bill for federal monitors who oversaw fishing practices to ensure compliance. Several individuals and companies who participate in the fishery sued the NMFS and by extension, the Commerce Secretary Gina Raimondo. On its way to the Supreme Court, the NMFS moved for and a district court granted summary judgment. Summary judgment is a special type of ruling in which there is not a full trial because one party has demonstrated there is no genuine dispute over material facts and any evidence the other party could produce is legally insufficient to reach a conclusion not in their favor. They used Chevron deference and claimed that the NMFS operated with a reasonable interpretation of the language in the MSA. The U.S. Court of Appeals for the District of Columbia Circuit affirmed the lower court ruling by also using Chevron deference. The Supreme Court agreed to hear the case, and it appears they are now directly tasked with whether or not they should overrule Chevron. The exact legal question of the cases asks whether to “overrule Chevron v. Natural Resources Defense Council or at least clarify whether statutory silence on controversial powers creates an ambiguity requiring deference to the agency?”
In their briefs and at oral arguments on January 17, 2024, U.S. Solicitor General Elizabeth Prelogar advocated for keeping Chevron while Paul D. Clement– a frequent Supreme Court advocate and former Solicitor General– presented the justices with an argument in favor of its demise.
Representing a company called Loper Bright Enterprises, Clement’s brief thoroughly condemns Chevron. The brief says Chevron v. NRDC deserves “little, if any, Stare Decisis” because it provides “no serious reliance interests.” He argues that overruling Chevron would not affect the court’s precedent. He calls the decision in Chevron “egregiously wrong,” argues that its two-step test is “unworkable,” and says its implementation is obliterating “the careful design [of the separation of powers].”
Representing the NMFS, Solicitor General Prelogar argues in her brief that the court should uphold its decision in Chevron. She points to the case as a “bedrock” principle of administrative law which “provides an appropriately tailored framework for judicial review.” She also argues for Chevron receiving a particularly strong form of stare decisis given the lower court’s heavy reliance on it. Her brief also argues in favor of Chevron deference by saying it allows for the proper separation of powers by keeping the judiciary from interfering with the legislature’s ability to “vest authority in [an] agency.”
Neither brief addresses the other question before the court regarding the actions of the NMFS and its reading of the MSA. Both briefs spend a majority of their time arguing about Chevron, appearing to highlight how critical both parties see this principle in administrative law. While on its face this case is about the concerns of a group of fishermen, both briefs acknowledge there is a much larger question at the heart of this case.
A World Without Chevron
It appears that a solid majority of the Court’s current attitudes towards Chevron point to a greater likelihood that the case will be overturned rather than upheld, as evidenced by the recent decline of Chevron deference in jurisprudence. If the case is overturned, the executive branch would be divested of some of its authority and regulatory discretion because they could no longer implement policy without explicit consent from Congress. The federal administrative state touches nearly every aspect of life so the overturning of Chevron would have extensive implications. In the absence of new legislation, it would also make the federal judiciary the arbiter of what all these agencies can and cannot do in the absence of explicit congressional direction. Upholding the ruling would also have an impact by providing a renewed guarantee of executive discretion. The court is expected to release their decision in Loeper Bright Enterprises in late June or early July before their summer recess.