Yes Federal Agencies can still regulate on environment, food, medicine etc after Supreme Court overturned Chevron - about unclear laws - previous clarifications still apply
- may lead to more stability
This is about the Chevron defence in US law which gives Federal agencies somewhat more flexibility in interpreting the law than they had without it. There’s a lot of confusion about it online - it has far less effect than click bait headlines suggest. The new ruling overturning it will mean
less change in how agencies interpret the law between Republican and Democrat presidencies
Congress will need to be more careful in how it drafts out new laws
however existing rulings won’t change, so the things that agencies are already permitted to decide can still be decided by them.
Federal agencies can continue to decide things that they already have the powers to decide
So, the FDA continues to have its authority to regulate food and medicine. and Congress continues to be able to delegate authority to the executive in future legislation. There is no way Congress has to micromanage new laws for every new drug, type of food, electronic apparatus etc; it's not about that.
Instead it is about situations where the legislation is unclear or ambiguous. Cases where Congress passes a law to delegate authority to the executive / agency, but it's not clear what exactly it has given the executive authority to do.
In practice this has turned out to be most important for environmental legislation and the legislation often has ambiguities that can be used to strengthen it and not so often ambiguities that can weaken it.
REPUBLICANS AND DEMOCRATS BOTH AGREE WE NEED ENVIRONMENTAL, PROTECTION BUT REPUBLICAN PRESIDENTS TEND TO WANT WEAKER PROTECTION BECAUSE THERE IS LESS EFFECT ON INDUSTRY
Republican presidents try to use Chevron to weaken environmental protection and Democrat presidents try to use it to strengthen protection. The rule is neutral but in practice the Democrat presidents have a higher success rates than Republicans.
The background here is that Republicans tend to side more with the big industry and these often find environmental laws add to their costs and they want weaker interpretations of the laws in order to save costs.
It’s not black and white. Republicans generally aren’t against ALL environmental legislation. They agree on the importance of protecting the environment, and there has been a fair bit of bipartisan environmental legislation, but they tend to favour weaker environmental legislation than Democrats.
ORIGINAL CHEVRON CASE WAS USED TO WEAKEN ENVIRONMENTAL PROTECTION UNDER REAGAN
But the original rule was to weaken environmental protection under Reagan in 1984.
The original Chevron case was about whether power plants can apply the clean air act to the entire power plant or has to apply it separately to individual stacks in the power plant.
The clean air act was ambiguous with the natural interpretation being to apply it separately to individual stacks which is a stricter requirement.
The EPA under Republican president Ronald Reagan wanted to interpret it in a way that would save money for utilities by telling them if one stack is not so clean they can use some of the allowance for an neighbouring cleaner stack to comply with the act without cleaning up every individual stack.
In the original Chevron case, the Supreme Court sided with the EPA and let the Reagan administration weaken the clean air act in this way.
However though it benefited the Reagen administration who wanted to have laxer environmental laws it soon came to be used to tighten environmental laws under Democrats. The Republicans found it far harder to use ambiguities in the law to weaken environmental regulations and the Democrats found it far easier to find ambiguities to tighten them.
QUOTE STARTS
Chevron’s lawyers must have felt pretty great on June 25, 1984. It was a balmy 86 degrees in Washington, D.C., the sun was shining between wispy clouds, and the Supreme Court had just upheld the EPA’s big favor to fossil-fuel interests—a weak air pollution rule that let polluters avoid installing new scrubbers. Life was good, or so they thought.
...
In the abstract, Chevron deference is neither a liberal nor a conservative tool. It merely strengthens the executive branch at the expense of the judicial branch. In the three years following the decision, the administration’s win rate in constitutional challenges rose by ten percentage points. Whether that power is used to tighten or relax regulations depends, in theory, on who occupies the White House and picks the agency heads.
“If your part is in the executive branch, then Chevron is a good thing—it gives you a lot more power,” says Brian Potts, a partner at the law firm Foley and Lardner, who specializes in energy and environmental law.
But Chevron’s empowering effects have not been neutral or uniform across the administrative landscape. In regard to environmental laws, which are typically strongly worded and absolute in their commitment to conservation, Chevron has become particularly useful.
“Environmental statutes in this country were passed by bipartisan majorities committed to strong environmental regulation and health outcomes,” says John Walke, director of NRDC’s Clean Air program. “They are comprehensive and capacious. Against that historical backdrop, Chevron is a gift.”
Put simply, administrations seeking to tighten environmental regulations can usually find ample space within the statutory language to support the tougher rules. For example, the Clean Air Act has a “good neighbor” provision aimed at limiting how much pollution states can allow to drift across their borders, thereby dirtying the air of adjacent states. In 2014, the Supreme Court turned away a utility industry challenge to the EPA’s strict interpretation of that rule, pointing out that the agency is entitled under Chevron to interpret the Clean Air Act as it likes, as long as it is trying to accomplish the law’s lofty goals of clean air.
Presidents—usually of the “R” variety—seeking to loosen the reins on polluters have had a much more difficult time identifying ambiguities that can be exploited under Chevron. The EPA lost a series of court challenges in the early 2000s, because the judges couldn’t accept that the strict language of the country’s environmental laws allowed for the permissive interpretations of the Bush II–era agency.
So that was the situation for many years since the Chevron case was decided in 1984
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
SUPREME COURT HAVE FREQUENTLY MADE THEIR OWN DECISIONS ABOUT WHETHER TO APPLY CHEVRON OR NOT - SO THIS IS ESSENTIALLY DELEGATING THE SAME FREEDOM TO LOWER COURTS
This new ruling has very little effect on the Supreme Court as they have frequently ignored Chevron when it didn’t seem to them to be relevant. So it’s not as radical as it might seem, they are basically telling lower court to follow their example.
The lower courts CAN still defer to the agencies. They will get briefs from the agencies based on their expertise suggesting theh court rules in a particular way and the courts can read those briefs, decide it is a matter that falls within the competence / expertise of the agencies and then just do as the recommend.
So it doesn’t prevent courts from deferring to the agency.
Rather it tells them to make their own decisions on a case by case basis about whether to defer to the agency or overrule the agency, just as the Supreme Court always has.
Or course, different courts might have different ideas about how to handle an ambitious law. Then it goes to the Supreme Court.
For Congress it means that when passing new laws they have to be more careful in how they frame laws. They can still delegate the decisions to the federal agencies. There is no question about the power of Congress to delegate decisions to the federal agency.
But going forward they have to be a bit more explicit in saying what specifically they delegate. There are pluses as well as minuses to this. One of the pluses is stability.
Also it's not going to affect previous decisions.
Then if Congress thinks the Justices got it wrong they in turn can clarify the situation by passing more power specifically to the federal government in new legislation.
WHEN CHEVRON DOCTRINE WAS APPLIED IN THE PAST - FOR UNCLEAR LAWS - LOWER COURTS DEFERRED TO FEDERAL AGENCIES IF THEY HAD A REASONABLE INTERPRETATION OF THE LAW
A law delegates decisions to a federal agency
However something is unclear in the description of what that agency can regulate under the law
The agency’s interpretation was a reasonable interpretation of the law (otherwise it would have been thrown out with or without Chevron)
But the agency’s interpretation of the law was one of several interpretations and not necessarily the best.
In those situations the Supreme Court decision on Chevron was used by lower courts to decide in favour of the agency’s interpretation of the law.
The Lower courts still could only choose between reasonable interpretations of the law. But before they had to choose the reasonable interpretation due to the agency.
NOW LOWER COURTS CAN CHOOSE WHAT THEY CONSIDER TO BE THE MOST REASONABLE INTERPRETATION - THOUGH THEY CAN STILL TAKE ACCOUNT OF THE EXPERT ADVICE BY THE AGENCIES ON WHAT IT CONSIDERS TO BE THE BEST INTERPRETATION
Now they can if they feel it is needed, override it based on their judicial interpretation of what the law really means.
The courts of course can only do this based on interpretation of the law. And they continue to defer to the agency on scientific / technical expertise.
In more technical detail:
Even when those ambiguities involve technical or scientific questions that fall within an agency’s area of expertise, Roberts emphasized, “Congress expects courts to handle technical statutory questions” – and courts also have the benefit of briefing from the parties and “friends of the court.”
Moreover, Roberts observed, even if courts should not defer to an agency’s interpretation of an ambiguous statute that it administers, it can consider that interpretation when it falls within the agency’s purview, a doctrine known as Skidmore deference.
. Supreme Court strikes down Chevron, curtailing power of federal agencies - SCOTUSblog
AGENCIES CAN CONTINUE TO MAKE DECISIONS BASED ON AREAS OF LAW ALREADY CLARIFIED FOR THEM
This is a useful document on it for companies deciding what to do now that the Chevron principle is dead. The 5 things it covers are:
Number 1: Don’t panic. Just because a rule was previously upheld under Chevron doesn’t automatically mean it will be overturned.
Number 2: Do consider whether existing rules are worth challenging.
Number 3: Don’t expect the agency to defend its prior approach.
. Five Things Companies Can Do Now That Chevron Deference Is Dead
The first point there is that the old decisions are not actually changed.
This is by the principle of “Stare Decisis”, that what is decided remained decided unless there is a really good reason to overturn it. For a high profile example, Roe v. Wade was overturned, the right to abortion, but Obergefells, the right to gay marriage has not been overturned and is not likely to be.
That is because amongst other reasons, the right to abortion has always been controversial since Roe was overturned while there hasn’t been anything like the same controversy about gay marriage which is widely accepted in the USA as a non controversial decision.
Roberts indicated that the court’s decision on Friday would not require earlier cases that relied on Chevron to be overturned. “Mere reliance on Chevron cannot constitute a ‘special justification’ for overruling” a decision upholding agency action, “because to say a precedent relied on Chevron is, at best, just an argument that the precedent was wrongly decided” – which is not enough, standing along, to overrule the case.
. Supreme Court strikes down Chevron, curtailing power of federal agencies - SCOTUSblog
Court decision: Read the Court’s Decision to Overrule the Chevron Doctrine
POSITIVE AND NEGATIVE EFFECTS
Chevron had negative as well as positive effects.
Positive - this was often used by the Federal government to apply old laws to new situations such as new technology that didn’t exist when the law was passed which simplified legislation
Negative - the government could change the interpretation of the law from one administration to the next and each time the lower courts had to accept the new interpretation which meant companies were unsure how the laws applied to them
Positive - this however let agencies change interpretations based on the president’s wishes and his manifesto which makes it easier to fulfill the wishes of the people with some interpretations.
The Supreme Court has ignored Chevron in one way or another for many years and so it makes no difference to Supreme Court cases.
It's not clear what effect it will have. First to deal with a common misunderstanding online:
Congress can and does delegate such things to Federal agencies and this won’t change.
This is for unclear laws - where it’s not clear what Congress has delegated to the Federal agencies
If the unclear laws have already been clarified in previous court cases then they can’t be challenged just on the basis that they relied on Chevron.
Then for the cases that do reach the courts, the click bait headlines are likely overstated. It would just mean the Judiciary to question the decisions of an agency more than before.
There are advantages as well as disadvantages. The advantage is more stability from one president to the next.
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