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After the Chevron deference reversal, alternative approaches to environmental protection emerge

The Supreme Court's June decision, which curtailed the authority of federal agencies, has introduced more uncertainty about health and environmental protection.  Read More

Green globe placed and gavel on a law book.
Environment Law. Green globe placed and gavel on a law book. law for principles of sustainable environmental conservation. environmental protection and eco-friendly legislation law. Save Earth.ESG Source: Shutterstock/chayanuphol

On June 28, the U.S. Supreme Court overturned the Chevron deference, a 1984 ruling declaring that, in instances of ambiguously worded legislation, the Environmental Protection Agency and other federal rulemaking bodies’ interpretation and enforcement of specific statutes would merit judicial deference. Based upon the new ruling, Congress and the courts should no longer “defer” to agency decisions on matters of statutory interpretation. Prior to its reversal, the Chevron deference had been applied in over 18,000-plus cases according to the American Bar Association.

The highest court’s decision unleashed a broadside of reactions. Trade associations representing a cross section of American companies celebrated an unalloyed victory for business interests. Law firms representing individual business sectors applauded their clients and recommended an expansive application of the decision’s reach beyond current policy and regulatory processes. Nongovernmental organizations regarded the court’s decision as a significant setback for the assertion of executive authority to remedy pollution, worker protection, financial transparency and a host of other priorities.

Regardless of one’s position on the end of Chevron deference, the Supreme Court established a vague standard at best. Legal advocates, congressional staff and others in the legal profession expect lower courts to require several years or longer in evaluating court cases to develop the appropriate boundaries for a post-Chevron deference regime.

Several months of rearview mirror examination place the reversal of Chevron deference in a greater context and catalyze the emergence of other viewpoints that transcend the law as the sole authority to determine the legitimacy of agency decision-making. At this juncture, several salient trends are unfolding:

The legal world of post-Chevron deference is a floor, not a ceiling

Many statutes already provide clear instructions to agencies to guide the development and enforcement of their regulatory policy activities. For example, the 1970 Clean Air Act and subsequent amendments provide an explicit statutory basis for how EPA is to assess available scientific information to protect public health and the environment through the compilation and interpretation of air quality criteria. Such criteria serve as the technical foundation for the EPA Administrator to establish National Ambient Air Quality Standards with an ”adequate margin of safety” to ensure sufficiently protective standards. Analogous language embeds other statutes ranging from the mandate to apply an “ample margin of safety,” use benefit-cost analysis or rely upon “best available technology” to other criteria that guide agency-decision making.

Numerous federal actions are not covered by judicial review

Federal agencies encounter no judicial restraints on how they collect, analyze and interpret scientific data in their policy and enforcement actions. Multiple agencies, including EPA and the Food and Drug Administration, retain substantial freedom of action, post-Chevron Deference reversal, to interpret existing scientific information without reference to statutory interpretations. Through its Integrated Risk Information System (IRIS), EPA reaches conclusions on the probability of chemical risks that state and local governments are able to apply in setting their own standards. Even when IRIS values are cited as a basis for a specific regulatory action, the historical basis for legal challenges has remained quite limited. 

Non-regulatory policy options gain traction

Non-regulatory governance and policymaking options are expanding and will receive added impetus from the repeal of Chevron deference. The 2022 Inflation Reduction Act (IRA) provided substantial new policy authorities for multiple federal agencies to decarbonize the U.S. economy. IRA establishes the power of the purse and the tax code as primary policy instruments to achieve greenhouse gas reductions often in lieu of more contentious debates over agency regulatory authorities to control these gases. Subsidies and/or tax credits for development of cleaner sources of energy infrastructure, energy efficiency, purchase of more sustainable consumer products, including electric vehicles, are stimulating an investment boom across government and the private sector over the next decade. The words “Chevron deference” are not uttered in this conversation about IRA implementation.

New approaches integrate public health and environmental decision-making

New approaches that integrate public health with environmental decision-making are redefining our understanding of contemporary risks and how to respond to them more effectively. These approaches increasingly rely upon data analytics and other advanced methods for gathering and assessing risk information, and they integrate professions within the scientific community that formerly worked in isolation. Together with stakeholders mobilized at the national and community levels, they examine data and identify solutions for a range of issues including climate change, pollution levels in low-income communities, biodiversity and drinking water quality. While the legal profession debates the scope and applicability of the Chevron Deference decision over the next decade, a more dynamic and transparent coalition of citizens, scientists and other stakeholders are directly engaging with industry and government to sail around the sandbars of debilitated regulatory and legal debates.

Like the aftermath of its 2022 decision in Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s reversal this year of the 1984 Chevron deference ruling has unleashed a torrential rainstorm of legal debate. It has also unwittingly put into play whether the law can serve as the sole, or primary, authority to determine the legitimacy of federal agency decision-making. Agencies are endlessly adaptable, and civil society is stepping up and bringing forward alternative decision-making frameworks of which the law is one of many factors. Over time, the judicial process will catch up to reflect where civil society wants to go. As of now, legal arguments supporting the reversal of the Chevron deference represent a funnel of abstract and vague arguments and standards that introduce greater uncertainties surrounding health and environmental protection. 

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