In an era where science and law often collide, the June 28, 2024, Supreme Court decision in Loper Bright Enterprises v. Raimondo overturning Chevron deference marks a pivotal shift that could reshape environmental regulation as we know it. The longstanding Chevron decision established the principle that federal courts must defer to an agency’s reasonable interpretation of any statute deemed to be ambiguous. This change now means federal judges can decide what a law means for themselves, potentially expanding their authority into the realm of policymaking, an area that may be beyond the expertise of the judiciary.
Loper has many far-reaching implications, several of which are not fully understood.
The 1984 Chevron decision was a response to the complexity of regulatory laws and a recognition that Congress often did not define requirements in these laws with precision, requiring agencies to use their specialized expertise to interpret ambiguous Congressional language. A premise of Chevron was that courts were at a disadvantage in filling gaps in vague statutory language because they lacked the familiarity agencies have with the realities of designing regulations and making them function effectively. However, over time, conservative legal scholars and some representing industry interests argued that agencies were getting a free ride from Chevron deference and courts rather than the Executive Branch should have ultimate authority to interpret ambiguous laws and assure that agencies adhere to their intent. Critics of agency decisions also maintained that some agencies were using Chevron deference to shield political and partisan agendas from judicial scrutiny. Whether these perceptions of agency motivations were well-founded, they had a receptive audience among Supreme Court judges concerned by perceived agency overreach. This led the Court to agree to reconsider the Chevron doctrine and ultimately to overturn it. Notably, the legal challenges to Chevron received financial support from Leonard Leo and Charles Koch, among others who support polluting industry interests.
Many environmental NGOs and scientists feared the consequences of a Supreme Court decision repealing Chevron because it could weaken sound policy and legal decisions by agencies that advanced public health protections against unsafe chemicals.
Without Chevron deference, courts may be more likely to scrutinize how the EPA has interpreted the law, which can lead to more legal challenges. Unfavorable decisions can produce significant delays or even rollbacks of important environmental protections. Given the increasing risk of judicial intervention in the formulation of science policy, the EPA and other agencies may be hesitant to implement policies that could be challenged as legally ambiguous under the agency’s controlling statute. There are also fears that, without Chevron deference, courts will be emboldened to use questionable statutory interpretations to justify requiring agencies adopt less health-protective approaches to environmental health. We are already seeing Industry invoke Loper to challenge more EPA decisions, leading to an increase in litigation. With some courts predisposed to favor Industry interpretations of the law, this power shift could make it harder for EPA and other agencies to defend stronger environmental and health protective standards.
However, there could be a “brighter” side to the overturning of Chevron. EPA’s legal and policy positions have not always been in the best interest of public health and environmental protection. Without Chevron deference, advocates may be better able to advance stricter health-protective environmental standards where EPA’s interpretation of the law has failed to fully protect health as envisioned by Congress. In such cases, EPA could no longer demand deference for interpretations that, based on the intent and language of the law, do not carry out the goals of Congress. This could lead to more transparency in EPA decision-making as the Agency feels pressure to more rigorously justify its decisions to better withstand increased judicial scrutiny. However, successfully using the courts to seek a more proactive interpretation of an environmental statute will be heavily dependent on the outlook and predisposition of particular courts since Loper would give judges greater independence and flexibility than under Chevron and judges are highly variable in their philosophical and political orientations.
The repercussions of Loper extend beyond regulations, raising critical questions about the role of scientific expertise in policy decisions. Traditionally courts have relied on agency scientific expertise in applying complex and highly technical statutes. Whether this deference to agency scientific judgments and conclusions will continue after Loper is not yet clear. This creates uncertainty for government scientists who may be wary of how their research may be used by policymakers and anxious whether their scientific work will stand up to legal scrutiny. But one positive outcome may be that increasing legal scrutiny may lead agencies to seek more input from scientific experts so their regulations and scientific work product can better withstand legal pushback. This could foster a more collaborative space for scientists, lawyers, and decision-makers and encourage more evidence-based environmental policies to protect public health.
Editor’s Note: To learn more about how this changing legal landscape affects science, join the Science Action Network’s Nov 13th webinar. Register at: bit.ly/sannov24.
About the authors
Bob Sussman, JD is an experienced lifetime environmental lawyer who has argued major cases in the federal courts raising issues about the interpretation of environmental and health protection laws. Bob was the EPA deputy Administrator in the Clinton administration and senior policy advisor to the EPA administrator under President Obama. He has taught courses on environmental law at Yale Law School and the Georgetown Law Center. His current practice is representing NGO groups in court cases and administrative proceedings under the Toxic Substances Control Act and other laws. Bob is a graduate of Yale College and Yale Law School and clerked for a federal judge.
Abena BakenRa, MPH is a Science Associate working with the Science, Policy & Engagement team at PRHE. She manages the Science Action Network, assists with public commenting efforts, and leverages her expertise in public health to advance PRHE’s mission. She received her MPH from University of California, Berkeley, specializing in Epidemiology and Biostatistics.
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