Charged Conversations Chevron Decision and other cases that will impact the legal landscape in the US - Part 1

Episode Transcript

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You're listening to charged conversations and I'myour host, or give them account.
Today, we'll be discussing the SupremeCourt's decision on the Chevron Doctrine, as
well as several other landmark cases thatwill certainly have a profound impact on the
legal landscape here in the United States. Several months ago, we briefly touched

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on the Loper Bright case, whichat that time had yet to be decided
by the Supreme Court. Just asa refreshedre Looper Bright was reassessing something known
as the Chevron Doctrine or the Chevrondeference, which was established by the Supreme
Court in the nineteen eighty four landmarkcase of Chevron Usa Ul Company versus the

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Natural Resources Defense Council, Inc.Now that the Loper Bright decision has been
released, today's podcast Part one willtake a closer look at this case and
other recent Supreme Court decisions that havesignificantly altered the legal and regulatory landscape when
it comes to federal agencies and theirscope of authority. For regular listeners,

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you'll know that we predominantly discuss energyand energy related topics. However, certain
events not only change the landscape orthe energy sector, but it also impacts
many other industries and fields. Thispast Supreme Court term was one such occasion,
and the overturning of the Chevron doctorin the Loper Bright case is a

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major part of that impact. Thissignificance lies not only just in the single
case that curtailed agencies authorities from ambiguouslaw, but in a series of cases
that signaled the Court's frustration with thetwo other branches of government. The expansion
of the federal government began during theGreat Depression and with legislation aimed at putting

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the country back to work. Thatexpansion continued after World War II, as
returning GI's needed jobs, and thefederal government obliged them by hiring quite a
few of them. What does thishave to do with today's case, Well,
because as the world became more complex, Congress, lacking expertise and technical

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acumen even back then, decided todelegate a lot of responsibilities to federal agencies
to fill out the law. Forexample, for an agency to come into
existence, Congress must pass a lawcalled an enabling statue. That enabling statute
sets forth the responsibilities, the rules, and the limits of power and delegations

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for each federal agency agencies like theEnvironmental Protection Agency created during the Nixon administration
in the early nineteen seventies and theDepartment of Transportation staff ablished in nineteen sixty
six are relatively new. Even neweragencies like the Department of Homeland Security two
thousand and two and the veteran theDepartment of Veterans Affairs nineteen eighty nine.

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But historically, federal agencies were presumedto be a political staffed by career civil
servants without political aspirations. That wasespecially true at least through World War II,
with VEVEINANMS understanding hierarchy and chain ofcommand, they often said, phrase
that's above my pay grade doesn't actuallymean indifference, but rather it's an acknowledgment

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of the limitation of one's position andtheir role. Most federal civil servants were
able to research and assemble information forthe heads of the agencies and cabinet officials,
who, in consultation with the Presidentand the president's team, made decisions.
The federal bureaucracy was there to implementthese decisions by carrying them out.

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However, over time, some civilservants took it upon themselves to actively engage
in the public's work, oftentimes blurringthe lines of political neutrality. This is
the case today and why the chevrondifference is really important. You know,
just as a personal anecdote, whenI first joined a federal agency as a

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general counsel or what they called achief counsel, overseeing legal and congressional portfolios,
I asked one of my lawyers,who do you work for. The
initial response was well you, andI said, well, that's true,
but think broader, who do wework for? Which brought the response we

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work for the people the United States? And there were several other answers in
between. But everyone I asked thisquestion too, seems to miss who they
really work for. Career civil servantsworking at agencies do work for different bosses
up through and including the head ofthat federal agent see and maybe the head

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of that cabinet agency. But asa component of the executive branch, which
all worked for the same person,that's the President of the United States.
After all, it's the president who'sresponsible for enforcing the laws passed by Congress.
And well, I don't know thisfor sure. I suspect that if
we could transport ourselves back to afederal agency sometime after World War Two,

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let's say in the middle of thenineteen fifties. I suspect if we had
asked the same question, they wouldhave gotten it right on the first try.
Congress not only passes laws, butit also holds the power to tax
and spend. However, the legislativeprocess can be convoluted, often resulting in

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ambiguous language. Sometimes this ambiguous languageis intentional. If we're trying to strike
a deal just to get a billpassed, well let's make it a little
more or fuzzy. Let's make ita little less clear. That way we
can all vote for it. It'sgood, right. Ambiguity isn't good.

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Similarly, when Congress decides today that, well, when five pages can work,
five hundred pages is better, writingof laws is something that Congress could
probably use a refresher course in this. Ambiguity requires interpretation, and that's what
brings us to the Chevron case.In the nineteen eighty four Chevron Usa versus

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Natural Resources Defense Council case, theSupreme Court established the principle of Chevron deference.
This doctrine mandates that courts defer toa federal agency's interpretation of ambiguous laws,
or what we call ambiguous statutory language, provided that the interpretation isn't off

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the chain. I guess you couldsay the decision has been pivotal in shaping
the relationship between the judiciary and federalagencies, granting these agencies far more leeway
in interpreting laws within their purview thanexisted before nineteen eighty four. In its

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opinion, the Supreme Court outlined atwo step test on when to grant this
difference, known as the Chevron deference. The core reason that ambiguities and statues
may be a delegation of authority fromCongress, thus limiting a federal court's ability
to review an agency's interpretation of thelaw in the specific case. At the

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hardest, Chevron the challenge arose fromthe United States Environmental Protection Agency's interpretation of
what to find a source of productionof pollution within the authority granted by Congress
through the Clean Era. At thetime of the Chevron decision was actually seen

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as a conservative move, as theCourt emphasized judicial restraint to not second guessing
federal agencies by giving them the power, with their expertise, to take the
lead in interpreting ambiguous laws. Interestingthough it faced criticism from liberals at that

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time for granting too much power tofederal agencies. Boy how times have changed,
potentially undermining the role of the judiciaryand leading to way for it autorective
bureaucracy wielding substantial influence over public policy. And they argued at that time that

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the Chevron deference compromised the separation ofpowers by allowing agencies to assume a quasi
legislative role. Well, the controvertencysurrounding this decision has persisted, with debates
focusing on the balance of power betweenthe legislative, the executive, and the

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judicial branches. I like to reada brief note from Sohan Das Gupta that
the Taft Law firm wrote in twentytwenty three, and I think it kind
of summarizes up what I've just saidto Chevron's current critics. Judicial review is
a pillar of the US Constitution,as the Supreme Court has recognized since no

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later that it's eighteen o three decisionof Marbury versus Madison. Marbury versus Madison
was the very first rule which establishedthis notion of review, and as promised
by the nineteen sixty six I thinknineteen sixty six Federal Administrative Act, the

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super Statute the Administrative Procedure Act,known as the APA. Well. Since
being handed down, Chevron had becomethe most frequently cited case in American administrative
law. Over seventeen thousand decisions fromlower federal courts had cited the case and
their rulings, and seventy yeah seventydecisions by the Supreme Court itself had cited

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Chevron. Between two thousand and threeand two thousand and thirteen, succid courts
applied Chevron in seventy seven percent ofdecisions regarding regulatory disputes. In the years
prior to the current case, theSupreme Court, with a majority of conservative
justices, had been seen as leaningtoward weakening or overturning Chevron. In twenty

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twenty two, the Court undertook thecase of West Virginia versus EPA, and
they ruled against parts of an admissionsrelated rule created by the EPA, asserting
that the agency didn't consider the costswhen implementing their rule. While this case
didn't actually directly overturn Chevron, itdefined and the major questions doctrine that was

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used in future cases to question theinterpretation of administrative or regulatory law with the
financial impact of the law had notbeen adequately considered or considered at all by
the agency, such as last year'sBiden versus Nebraska, which blocked Joe Biden's
student loan Forgiveness project under the HeroesAct for failing to account for its financial

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cost to states. All of thisbrings us now to the low for Bright
case and the unraveling of Chevron Lopefor Bry versus Rimondo. All started in
nineteen seventy six when Congress passed theMaguson Stevens Fishery Conservation and Management Act.
Now that's that's a mouthful, butthe bottom line is as it was intended

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to provide for the management of marinefisheries in US waters. One of the
provisions that act was that the FisheryService known as the National Marine Fishery Service
it's a sub agency of the Departmentof Congress, could require fishing vessels to
carry federal monitors on board to enforcethe agency's regulations, particularly to prevent overfishing.

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In February of twenty twenty, afinal rule established the standard process that
would require industry funded monitoring across NewEngland Fisheries. Low per Bride Enterprises,
the company that sued is a NewJersey based family owned herring a fishing company
operating in the waters of New England. The company estimated that the cost of

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federal monitoring would be about seven hundreddollars a day, not light and sometimes
actually exceeding the value of the dailycatch. So in February of twenty Low
Profile a lawsuit with the U.S. District Court of Columbia alleging that
the Fishery Conservation and Management Act didnot authorize the Fishery Service to mandate the

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industry funded monitoring of herring fisheries.The District Court, in applying Chevron,
granted summary judgment in favor of theFishery Service and Loper was out. Despite
Chevron providing deference in the case ofan ambiguously worded statute, the District Court
found that the law unambiguously provides forindustry funded monitoring of fishing and thus concluded

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its analysis at the first step ofChevron. The court acknowledged Looper's argument regarding
ambiguity in the statutory language, butnoted that even if these arguments had been
successfully argued, in the text,the Fishery Services interpretation of the law would
have been reasonable. Upon appeal,three judge panel for the Court of Appeal

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of the DC Circuit Court of Appealheard oral arguments on this case in twenty
twenty two and affirmed the judgment.However, instead of just affirming what the
District Court said, the Circuit Courtwent even further, and it concluded that
the language to the law was notcompletely unambiguous about whether it provided for industry

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funded monitoring of herring fishery. Instead, they concluded their analysis at the second
step of Chevron, stating that theFishery Service reasonably interpreted the law when it
came to what the court deemed thequote silence on the issue of cost at
sea monitoring. Well four days afterthe Supreme Court ruling in Lowe or Bright

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throughout the Chevron doctrine, the Justicesannounced that they would now be sending nine
more cases back to lower courts,and why to their ruling, This matchup
cases maybe the first indication of thelegal upheaval that could play out across the
United States judiciary now that one ofthe most widely cited Supreme Court opinions has

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been reversed. Justice Elena Hagen wrotein her dissenting opinion that the majority's decision
today will cause a massive shock tothe legal system, and by reversing the
nineteen eighty four ruling of the ChevronCourt, it's splashing the authority of regulators
and empowering the judiciary. Some thinkit's called into question the fate of more

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than nineteen thousand past federal cases thatcite this precedent, For without Chevron,
now, agencies are not entitled todeference, and the Court, through judicial
review can now say, well,wait a minute, is this reasonable.
We don't have to defer to youany longer federal agency. The concern about

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these nineteen thousand past cases did notgo unnoticed, and in his majority opinion,
Chief Justice John Roberts appeared to anticipateit when he wrote that the holding
of those cases that specific agency actionsare lawful, including the Clean Air Act
holding of Chevron itself, will stillbe subject to precedent, referring to the

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legal principle of starry decisives of adheringto judicial precedent. But Robert's stipulation may
not be enough to stop the significantfallout that the Court created with this ruling.
For one, the court seemed toprotect agencies prior actions, but it
was silent on addressing past interpretations oflaw, regardless for those cases not yet

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decided and for which statute limitations hasa run to bring new cases. The
floodgates are about to open. Whetherthat's a good thing or a bad one,
you'll have to decide. Coming upin Part two, we'll discuss the
applications of Loper Bright and and otherrecent rulings the next time. Thank you

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for listening to Charge Conversations a JoeStrucker production. This is your host breg
of him account. Stay tuned formore discussions beyond this and other energy related
topics. I'll see you next time.