The Supreme Court’s recent overturning of the Chevron doctrine, which allowed a certain amount of legislative deference to federal agencies, is only one example of the high court’s attempts to roll back administrative powers, according to Deborah Sivas, the Luke W. Cole Professor of Environmental Law and director of Stanford Law School’s Environmental Law Clinic.

On a recent episode of the Stanford Legal podcast, co-hosts Pamela Karlan, the Kenneth and Harle Montgomery Professor of Public Interest Law and co-director of Stanford Law School’s Supreme Court Litigation Clinic, and Richard Ford, the George E. Osborne Professor of Law, spoke with Sivas about the recent Loper Bright decision that overturned the longstanding Chevron deference, as well as other less-analyzed cases that may end up having even more sweeping effects.

The following is an edited version of the full podcast transcript, which can be found here.

Pam Karlan: This was a momentous term at the Supreme Court with regard to environmental and administrative law issues. What struck you most?

There were a host of big cases decided this term, following on a couple of big cases from the last few terms. Of course, the big one that got a lot of play was the Loper Bright decision, which put a final nail in the coffin for what’s called Chevron deference. That was part of a trilogy of cases that are geared toward trying to shrink down the influence of administrative agencies. 

Rich Ford:  What exactly is Chevron deference and why is it important? 

Chevron was a 1984 case. Ironically, a case that the Reagan administration pushed forward in deference to some of the deregulation that was going on at that time. We’ve now had a shift where the conservative scholars turned against Chevron. What that case said was that where there’s a congressional statute that has gaps in it, or ambiguities, and the agency that’s implementing that law is trying to do so consistent with what Congress directed, then that agency can fill those gaps with its interpretation of what it thinks Congress intended. The default rule created by Chevron said generally the courts should defer to the agencies because those are the folks who are really in the minutia and interpreting and applying the law–barring it being an outrageous kind of interpretation. This was a default, not something that couldn’t be overcome, but in the last decade, there’s been growing hostility towards that notion, in part because the more conservative legal movement doesn’t want to see the administrative agencies have so much power.  

In the recent Loper Bright case, the Chief Justice said, we haven’t cited Chevron for eight years or so, and that’s been true in my experience in litigating as well.  There’s been this long attempt to water down Chevron, and so the government wasn’t really using it as much as it used to, but now we’ve officially done away with it, so there’s no deference to the agencies, which leaves things to the independent judgment of 600 plus judges in the judiciary. 

Pam Karlan: One of the things that struck me as so ironic about this is that at the same time that the Supreme Court is getting rid of deference to administrative agencies and their expertise, they make sloppy mistakes on basic issues of science. Take the Ohio against EPA case where the Court’s opinion, when it originally comes out, talks about the problems of “nitrous oxide,” which, of course, is the laughing gas they give you at the dentist. The problem was actually with something called nitrogen oxide. Nitrogen oxide and nitrous oxide are not the same things at all. What do you make of this kind of contempt for agency expertise?

It’s definitely there in a number of the judges on the Court and some of the lower court judges as well, but what strikes me is that it’s very hard to disentangle what the meaning of a legal term is, or a phrase in a statute, from how the agency is applying it to a set of facts. We’re going to see some cases coming up where the question is: what’s the best available technology that can be used under the Clean Air Act? That’s a term in the statute, but there’s a long history of the agency actually thinking about what that term means. But if you just look at it from a strictly “we interpret words on a page,” point of view, it’s not clear to me that any of our current judges, who don’t hold advanced degrees in engineering or anything, would know the answer to that. 

Rich Ford:  Just to put it in context, there’s been a long-standing hostility to the administrative state among a certain faction of conservative jurists, and even if the demise of Chevron itself may not be all that momentous, because, as you pointed out, the courts hadn’t been citing it and agencies hadn’t been relying on it for quite some time, this is the culmination of this long standing attack on deference to the administrative state that we would expect to see continue in other areas.

It’s almost a signaling function from the Supreme Court to say, “yes, we invite you to challenge agency rulemaking, right and left.” One of the other big cases, this term, the Corner Post case—which came out on the same day as the immunity decision, so it didn’t get as much press as it might have otherwise—  has to do with when the statute of limitations runs on these administrative rule-makings, and it’s inviting folks to come back at rules that have been in place, in some cases, for decades. 

Pam Karlan: I think it’s worth talking about Corner Post because everybody was so focused on Chevron and Loper Bright that I think they may have missed just how big an issue Corner Post is. Corner Post was about a regulation involving swipe fees for debit cards. The regulation was from 2011. It was challenged, the challengers lost. And the six-year statute of limitations had run by 2017. But then in 2019 or 2020, a new gas station opens somewhere in the Badlands, and they want to challenge this regulation and the lower court said, look, the six years from when the regulation was adopted has passed. But the Supreme Court says, Oh no, the six years starts to run from when the regulation first affects you. So, what that means, is you just incorporate an entity in, say, Amarillo, and then you can go and bring your lawsuit in front of Judge Kacsmaryk to challenge the regulation—even though the regulation has been on the books, and even if it’s been upheld by several Courts of Appeals—because the only thing that bars you is if the Court of Appeals where you filed the suit has already decided the case. Then, if you add on Loper Bright, if the old decisions had any Chevron deference in them to what the agency did, then you get to revisit the whole thing now.

Absolutely, and one of the things that struck me when I read the Loper Bright decision was the Chief Justice saying: Oh, going forward, no Chevron deference, but it’s not going to unsettle things that are rules that are already decided. And then the next Monday, they decided Corner Post and created the situation where you absolutely could undo lots of rules.  

Rich Ford:  It’s not obvious that these decisions are what you might expect as being more conservative-leaning, “pro-business” because it is not clear that businesses are going to be better off with all this regulatory churn, where everything is constantly up for re-evaluation. But those Supreme Court decisions do seem  to comport to some quite specific ideological vision of the government, and in particular, hostility to administrative agencies.

I agree with that. That’s the general direction if you put all these individual cases together.

Pam Karlan: Can you tell us a little bit about the Ohio against EPA case?

That’s a case that hasn’t also gotten a lot of play, in part because the Court has not yet ruled on the merits. It is a Clean Air Act case in the D.C. Circuit, and it has to do with ozone pollution. The Act directs the EPA to protect public health from pollutants like ozone. To advance the ball on that, the agency promulgated a new rule that had to do with something called the “good neighbor” provision. You can imagine if you’re a state that’s downwind of a very polluting state, and you, as a state, are supposed to clean up your air quality, it’s hard to do if a neighboring state’s pollutants are blowing into your state. The good neighbor provision requires some of the states where the pollution can move out of the state into another state to adhere to certain rules, and that was what was at issue in that rulemaking. What the EPA said is that every state has to amend what’s called its State Implementation Plans to try to address that ozone problem. When states didn’t do it, the EPA came back and said: Ok, we’re going to do an overriding federal plan, which the Clean Air Act allows. A number of states challenged the rule, seeking a stay of the rule before the case was even heard on the merits. The D.C. Circuit turned that down. The states then petitioned the Supreme Court. The Supreme Court took it up on an emergency appeal, and issued a stay on the rulemaking. It can take years to work its way through the D.C. Circuit. So is that the new course of action with the Court just doing these emergency stays before they’d really even heard the merits of the case? 

The other big issue was the test for the stay, which is: Are you likely to prevail on the merits when the Court finally gets to the merits, and what is the balance of equities?  The Court focused entirely on the merits and telegraphed that you’re going to lose on? the merits, and the basis for losing on the merits is: EPA, you did not adequately respond to a comment or a set of comments by some states that were unhappy. I think we’re telegraphing where that case is going to end up. It’s now back at the D.C. Circuit, but the fact that the Court was willing to take it up on this emergency and issue the stay, and then saying: We’re likely going to throw out the rule because you didn’t adequately respond to someone’s comments. That’s a really far-reaching, potentially troubling decision. 

Pam Karlan: Yeah, so if the Court can look out there, find one of thousands of comments and then say: We don’t think the agency responded enough to this comment, so we’re going to toss out the rule, it’s basically open season on the rules. What effect is this going to have on agencies?  Some people say well, this is just going to mean the process is going to become much slower because they’re going to just respond to every comment, but there’s another group of people who say that what’s going to happen is agencies are just going to say it’s not worth doing the rule at all.

It’s hard to know, but my guess is that it is going to chill their enthusiasm for spending years and years,  on these rules, and if they just think, at the end of the day, we’ve got a very hostile Supreme Court They’ll be less inclined to do anything that’s sweeping and at a time when we actually need the agencies to do a lot more, but we’re probably going to see a lot less, and right now, there are three big climate rules that EPA has issued and each one of them is under challenge, and these cases we’re talking about are probably going to affect each one of them. 

Rich Ford: The realities on the ground are that we need complex regulation. It’s just unrealistic to imagine that Congress could anticipate all of this and write a statute that’s sufficiently detailed to cover all of this. It’s also really arrogant to imagine that the courts can swoop in at the last minute and understand the issues well enough to say: “You should have responded to this comment or that comment more adequately than you did.” And yet that’s where we are, so we need expertise more than ever in this area, but these decisions are taking us back to some 19th-century view of the way government would work, where you have Congress and the courts and that’s it, and they’re able to adequately deal with all of the issues that are confronting us. 

I agree. In some ways, we’re going to take ourselves back to before the New Deal, and it goes back to Pam’s earlier point: the courts don’t actually know what they’re talking about. I mean, this stuff is very complicated, just even in traditional air and water pollution, and it gets even more complicated when you’re talking about greenhouse gas emissions and climate change. 

Pam Karlan: Do you think that this is going to lead to states being more active in this space if the federal government is kind of pushed out of it? California can be a market-maker in some ways because if California bans a particular substance, or requires something, that often means companies nationwide are going to comply with that because of the nature of the California market.

That’s right. I think large states like California, New York, and others will continue to do this, but again, there’s been an attack on those states. One of the rules that EPA has issued recently that’s under attack right now in the D.C. Circuit is a challenge to the electric vehicle standards, in which there’s a whole provision of the Clean Air Act that allows California to set more stringent standards—this comes out of the past, with the LA area trying to solve its smog problem decades ago. Even Congress has given that authority to California, and then other states can follow it. But part of that challenge that’s now pending in the D.C. Circuit is really trying to say, no, California should not be allowed to be different here.