Chief Justice John G. Roberts Jr. famously described a modest role for the Supreme Court in his nomination hearings. But the decision to overrule the Chevron deference doctrine and to expand the role of courts is an extraordinary and self-aggrandizing claim of power and authority for the judicial branch.
Acceptable regulatory policy should be shaped by three considerations:
1. The wishes of the voters, expressed through an elected president, his or her appointees, and elected legislators who alone define and control agency power.
2. The weight of scientific and technical evidence about the issue.
3. The actual impacts on affected stakeholders — regulated parties and the publics they serve — whose views are collected through elaborate outreach efforts that both bring major players to the drafting table and involve thousands, sometimes hundreds of thousands, of public comments.
The role of the courts is to keep agencies within whatever boundaries Congress delineates. When Congress does not, cannot or will not identify those boundaries, Chevron teaches that reasonable agency — often by players “present at the creation” — are as close as we can get to actual legislative intent. Creating a more intrusive role for courts seems unwise, as courts do not participate in any of the three conditions for acceptable policy.
William R. Andersen, Seattle
Chief Justice John G. Roberts Jr. is wrong that the Chevron deference doctrine is “unworkable.” The process works! But like everything in a democracy, it is messy.
Congress provides wide discretion to federal agencies in writing and implementing rules required by legislation. That process is time-consuming and factually and analytically rigorous, and it includes numerous checks and balances. It takes years to write and promulgate a regulation, after which organizational or individual stakeholders have an opportunity to file a lawsuit — which they very often do. These lawsuits have to be addressed as part of the regulatory process. Many members of the public also have an opportunity to review and question the work of “bureaucrats,” many of whom are scientists, economists, engineers, epidemiologists and other subject-matter experts. As recently as last year, the White House Office of Information and Regulatory Affairs issued guidance aimed at making it easier for more people to participate in the federal rulemaking process.
The end result may be a regulation some group with a vested interest doesn’t like. But that’s life, especially in a democratic society. You win some and you lose some. The Supreme Court, in its infinite wisdom, has only mucked up the waters.
Josh Lowry, Silver Spring
In 1981, I joined the solicitor’s office at the Federal Energy Regulatory Commission, defending agency decisions before federal appellate courts. When the Chevron v. Natural Resources Defense Council decision was issued in 1984, I cited it in dozens of briefs and in oral argument. Overruling this significant precedent is a tragic mistake. Under Chevron, when a statute administered by an agency contained ambiguous terms, the reviewing courts would defer to the agency construction as long as that decision was rational.
The pretext advanced in the majority decision doing away with Chevron was that the 1984 case led to inconsistency because interpretations would often change when a new administration took power. During my appellate tenure, I recall only one time when an incoming administration attempted such a change. That circumstance occurred in 1981, before Chevron existed, when incoming Reagan administration commissioners tried to overturn a prior decision that had been upheld by the 11th Circuit.
In short, Chief Justice John G. Roberts Jr. is fixing a problem that does not exist. Even if it did exist, the simple solution would be to bar an agency that has been afforded deference for one interpretation from again claiming deference for a different construction of the same provision.
The real reason for the conservative assault on Chevron is to prevent an alleged “deep administrative state” with its “liberal bias” from imposing allegedly onerous regulations on business. Agency decisions at FERC are rendered by five commissioners appointed by the president and confirmed by the Senate. Only three can be from the same political party. To be sure, these commissioners collaborate with lawyers, economists, engineers and other regulatory specialists when reaching their decisions. During my four decades at FERC, political biases were checked at the door. The men and women I worked with were consummate professionals, always seeking the correct result. Sometimes, we got it wrong. In those cases, the agency was unable to show a logical connection between the facts adduced and the decision made. Accordingly, the appellate court either reversed or remanded the cases despite the grant of deference.
The ultimate folly in Chief Justice Roberts’s decision is his “belief” that all federal jurists are paragons of virtue without any biases whatsoever. I pity those federal agencies whose decisions are subject to review in federal district courts. The conservative rush to the district court in Amarillo, Tex., and Judge Matthew Kacsmaryk will be immediate.
Americans deserve consistency
As a former director of the Office of Enforcement and assistant general counsel for enforcement at the U.S. Nuclear Regulatory Commission, I am very concerned about the impact overturning the Chevron decision will have on radiation and nuclear reactor requirements. The impacts of nuclear accidents do not respect the boundaries of states or district courts. The American people deserve uniform requirements that equally protect all.
Yet now, U.S. courts will decide for themselves the reasonableness of NRC implementation of the Atomic Energy Act of 1954, which requires the commission to promulgate “standards and instructions to govern the possession and use of special nuclear material, source material, and byproduct material as the Commission may deem necessary or desirable to promote the common defense and security or to protect health or to minimize danger to life or property.”
Given the varying educations, experiences and perspectives of judges, despite their acting in good faith, the reversal of Chevron will no doubt create a “crazy quilt” of requirements resulting in varying levels of safety and protection in different districts, states and regions of our country. This will also result in confusion and costs to the nuclear industry.
Jim Lieberman, Silver Spring
The recent overturning of the “Chevron doctrine” by the Supreme Court will definitely affect Environmental Protection Agency’s ability to regulate toxic air pollutants. I had the honor of working for the Environmental Protection Agency for 30 years. My job was concerned with the Clean Air Act and the regulations developed to implement it.
The Clean Air Act is one of the most complicated environmental statutes, and the regulations promulgated under that statute are equally complicated because of the broad array of industrial processes they cover. Consequently, the EPA is often called upon to clarify both statutory and regulatory language and to explain whether or how those rules would apply to a particular configuration or modification of an industrial plant or process.
During my tenure at the agency, I wrote many of these policy memorandums that set legal precedent and enabled the EPA to effectively implement environmental regulations. These interpretation policies adhere strictly to a “plain-language reading” of the statutory and regulatory language, and they are scrutinized by legal staff to ensure the EPA does not overstep the intent of the original statutory or regulatory language. The clarifications are an integral part of the environmental regulatory implementation process.
EPA staff have spent decades writing and implementing these regulations and are uniquely qualified to make these interpretations. Removing this authority from regulatory agencies and placing it with the courts will severely limit the EPA’s ability to act in a timely and effective way to protect the environment from toxic pollutants. Without these years of expertise, the courts are not in a position to take over this responsibility, and the health and welfare of the public will suffer.
From my own career of 30 years of legislative advocacy, I would add that if Congress is going to function in the way it will need to now that the Supreme Court has tasked lawmakers with writing much more detailed legislation, it is critical to restore congressional “regular order,” which has been eroding since Georgia Republican Newt Gingrich’s tenure as speaker of the House in the 1990s.
Regular order is simply the congressional process through which all legislation must be reported from a related committee to be considered on the floor of the House or Senate. The committee process itself encouraged legislative expertise, bipartisan behavior and cohesive, on-time policy results. The Congressional Budget and Impoundment Control Act of 1974 established a new congressional budget process and timetable, a budget committee in each house, a Congressional Budget Office, and congressional control over the impoundment of funds by the executive branch.
Yet today, the use of continuing resolutions has become common any time that Congress and the president do not reach agreement on spending levels and fail to enact regular appropriations by the start of the federal fiscal year beginning Oct. 1. Between fiscal years 2010 and 2022, 47 continuing resolutions passed, allowing Congress to delay its duties for as long as 176 days at a time. On three occasions, not even a continuing resolution was approved, resulting in a government shutdown.
This astonishing record of legislative failure is a direct result of not adhering to the important committee role, the fundamental precept of regular order. If Congress can’t even fund the government, how can it be expected to write detailed regulations?