Supreme Court may overturn precedent governing climate regulations
1984’s Chevron doctrine has been a pillar of federal regulatory law.
MARIANNE LAVELLE, INSIDE CLIMATE NEWS – 1/18/2024, 9:39 AM
The Supreme Court on Wednesday heard arguments for overturning the so-called Chevron doctrine, one of the most important principles guiding federal regulation for the past 40 years.
The doctrine, named for a 1984 court case involving Environmental Protection Agency air pollution rules, has been high on the agenda of right-wing groups for years. It holds that when the meaning of a law is disputed, the federal agency’s interpretation should be given deference as long as it is reasonable. Environmental groups fear that overturning the precedent will make it easier for courts to block new pollution regulations, especially those addressing climate change.
The cases heard on Wednesday, Loper Bright Enterprises v. Raimondo, and Relentless, Inc. v. Department of Commerce, take on rules put into place in 2020 that require industry-funded federal observers aboard vessels in the northern Atlantic fishing for herring.
The small school fish are key to the northern Atlantic’s food web and fishing economy. The federal rules to monitor and prevent overfishing of Atlantic herring have been bolstered in recent years, in part to address the strain on the fishery due to warming waters.
Paul Clement, a titan among conservative appellate litigators, and lawyers from the Cause of Action Institute, one of the nonprofit groups in the large libertarian advocacy network built by petrochemical billionaire Charles Koch, portrayed the fight over the Chevron doctrine in this case as a David vs. Goliath battle.
“This case well illustrates the real-world costs of Chevron, which do not fall exclusively on the Chevrons of the world, but injure small businesses and individuals,” Clement told the court. “For my clients, having to carry federal observers on board is a burden, but having to pay their salaries is a crippling blow.”
In fact, as the federal government noted in its briefs, the National Oceanic and Atmospheric Administration was able to reimburse the fishing operations for 100 percent of monitoring costs in the two years since the rules went into effect, an amount totaling about $30,000. But such details did not come up in the arguments before the high court, nor were they likely to; the justices decided last year to limit their consideration of the cases to the sole question of whether the Chevron precedent should be limited or overturned.
Potential shock to the legal system
Chevron is probably the most important, and certainly the most-cited precedent, in all of administrative law, according to scholars on both sides of this dispute. The Biden administration’s chief litigator before the Supreme Court, Solicitor General Elizabeth Prelogar, argued that Chevron should be upheld and predicted grave consequences if it is overturned.
There are “thousands of decisions that could stand to be displaced and create chaos if Chevron is overruled,” Prelogar told the court. She said it would cause “an unwarranted shock to the legal system.”
While environmental groups fear that overturning the Chevron precedent will make it easier for courts to block new pollution regulations, history has shown the standard has cut both ways. In fact, the 1984 decision setting the precedent was a defeat for environmentalists, with the Supreme Court upholding a narrow interpretation by President Ronald Reagan’s EPA on how to enforce the Clean Air Act at big industrial plants like those of Chevron.
Associate Justice Neil Gorsuch, Trump’s first appointee to the Supreme Court, has long been a vocal opponent of the Chevron standard, despite the fact that his mother, Anne Gorsuch, was the EPA administrator whose decision was upheld in the original case.
During oral arguments, Gorsuch made clear he continues to view agency deference as problematic.
“The cases I saw routinely on the courts of appeals … are the immigrant, the veteran seeking his benefits, the Social Security disability applicant, who have no power to influence agencies, who will never capture them, and whose interests are not the sorts of things on which people vote,” Gorsuch said. “I didn’t see a case cited … where Chevron wound up benefiting those kinds of people.”
But Associate Justice Elena Kagan, an Obama appointee, focused on how the safety and health regulations protecting broad swaths of the American public could be upended if the idea of agency deference is overturned. She gave a slew of examples of regulatory disputes she said would be better decided by agency experts than judges who know nothing of the subject matter: whether a cholesterol-reducing agent is a drug or dietary supplement; whether power production capacity refers only to AC power sent to the grid or also to DC power produced by solar panels; and, from the original Chevron dispute, what is the definition of a stationary source of air pollution.
“It’s best to defer to people who do know, who have had long experience on the ground who have seen thousands of these kinds of situations,” she said. “You know, judges should know what they don’t know.”
As has been the case with so many recent disputes, the Supreme Court appears sharply divided along ideological lines on the issue. And with conservatives in the majority, most observers expect at least some limitation of the Chevron doctrine, if not the more radical move—which Associate Justice Clarence Thomas previously endorsed—of ruling that it was unconstitutional.
“We’re looking at probably the biggest administrative law case in decades, and it’s going to create a broad pro-business, anti-government precedent that will last a generation, hurting public policy, national governance, and risking American lives,” said Craig Green, a professor at Temple Law School, speaking at a forum last week organized by the Center for American Progress.
Green believes that because Chevron was rooted in even earlier court precedents, the current cases could change the way federal regulators have operated since most of the agencies were established. “These cases, on the one hand, are really tiny, about whether a particular agency can make fishers pay for monitors at sea. But it’s also about the enormous question whether federal agencies can function as they have done since FDR, the New Deal or the ’30s.”
Roman Martinez, another lawyer representing the fishing operations, told the court that the Chevron doctrine actually promoted greater instability in the law, because it holds that the agency’s interpretation of the law is due deference even if it changes from Republican to Democratic administrations and back again, as has happened with numerous policy issues before the court.
“Chevron, by design, creates this world in which… the agency can kind of flip-flop and then force courts to flip-flop with it,” Martinez said.
But the timing of the challenge to Chevron clearly means greater peril, at least for the time being, for progressive policy, especially around climate change. While conservatives have a commanding 6-3 majority at the Supreme Court, federal agencies are setting up a wide array of complex regulations to implement President Joe Biden’s climate policy, including vehicle emissions standards, rules for carbon pollution at power plants, and IRS rules on clean energy tax credits.
“The scary thing is that precisely at the moment when we need ambitious, scientifically driven, technologically sound regulation, the Supreme Court is poised to overrule a case that was centrally about agency expertise,” said Lisa Heinzerling, professor at Georgetown Law School who specializes in environmental and administrative law.
The Supreme Court is expected to decide the cases before July.
Marianne Lavelle is a reporter for Inside Climate News. She has covered environment, science, law, and business in Washington, DC, for more than two decades. She has won the Polk Award, the Investigative Editors and Reporters Award, and numerous other honors. Lavelle spent four years as online energy news editor and writer at National Geographic. She spearheaded a project on climate lobbying for the nonprofit journalism organization, the Center for Public Integrity. She also has worked at US News and World Report magazine and The National Law Journal. While there, she led the award-winning 1992 investigation, “Unequal Protection,” on the disparity in environmental law enforcement against polluters in minority and white communities. Lavelle received her master’s degree from Columbia University Graduate School of Journalism and is a graduate of Villanova University.
Here are more “ET’s” recorded from around the planet the last couple of days, their consequences, and some extreme temperature outlooks, as well as any extreme precipitation reports:
A brutal and potentially historic heat wave is kicking off in Western Australia.— Extreme Temperatures Around The World (@extremetemps) January 19, 2024
Temperatures in the Pilbara area might approach 50C with minimums of 35C or more.
The Southern Hemisphere hottest day and night in climatic history will both be approached.
Stay tuned. pic.twitter.com/eCattLEYsA
Reliable weather models showing 128°F [53°C] as the maximum near Lyndon, Western Australia on Tuesday. pic.twitter.com/qiODpkSsBt— Ryan Maue (@RyanMaue) January 19, 2024
The mercury could pass 50°C/122F in some parts of #Australia in the coming days. That is beyond the limits of human survivability for very long. What #temperatures will be reached over this landmass at 2C over global. It won't be comfortable for humans or nature. pic.twitter.com/PB3rgRZNOm— Peter Dynes (@PGDynes) January 19, 2024
Big contrasts in EUROPE:— Extreme Temperatures Around The World (@extremetemps) January 19, 2024
Very cold in the North/west: -14.7C at Arras, FRANCE lowest temperature since the station opened in 1986.
Record warm nights in the SE:
Tmin 16.2C in ALBANIA highest ever in January, Tmins 18C/19C in Turkey.
Hot afternoon in CRETE with 26.5C at Sisi. pic.twitter.com/8oLJeWIRUs
Tropical nights in January— Extreme Temperatures Around The World (@extremetemps) January 19, 2024
Tonight the temperature didn't drop below 20C in some areas of Crete,Greece.
Later in the day,temperatures slipped just below 20C.
Malia 21.0C overnight Tmin,later slipped to 19.6C.
Next 2 nights can be tropical as well and European record is at stake. pic.twitter.com/Q46pMFYK3T
EUROPEAN WARM SPELL- PART 3— Extreme Temperatures Around The World (@extremetemps) January 18, 2024
Hottest January nights in most of Balkans.
Also,some max. temperature records broken today include:
23.0 Pescara tie
18.2 Monte Calamita
20.5 Slavonski Brod
19.2 Girokaster https://t.co/KsgRbET8uj
SE Asia Heat wave -part 2— Extreme Temperatures Around The World (@extremetemps) January 19, 2024
Extreme heat in THAILAND where in the past 8 months recrod heat has been constant and relentless.
Today 37.2C at Chanthaburi and 36.1C at Bang Na broke their January records of high temperatures and it will get worse
January Asian heat record is at stake https://t.co/pKLiV2fIaj
Scorching heat in Central America & the Caribbeans with up to 40C in Mexico,38C Guatemala,Honduras and El Salvador,37C Nicaragua,Costa Rica and Panama,34C in the Caribbeans.— Extreme Temperatures Around The World (@extremetemps) January 19, 2024
35.5C today in the NICARAGUAN capital Managua,its hottest January day on record.
That's the cool season… pic.twitter.com/rLxZIgUtR9
🌡️-10.4°C in Baltasound (Shetland), a settlement on the island of Unst, the most northerly inhabited island of UK 🇬🇧!— Thierry Goose (@ThierryGooseBC) January 20, 2024
Thanks to unusually calm conditions & snow cover, the temperature have rapidly dropped under clear skies.
➡️ New monthly record, 1.5°C from its all-time record. pic.twitter.com/4xRmLBMDQo
🥶 Another arctic air outbreak is forecast across much of the central and eastern U.S. through this weekend. This event will not be as frigid as the last outbreak, however, temperatures and wind chills will still be hazardous across a large part of the nation. pic.twitter.com/1nTNBatt49— NWS Weather Prediction Center (@NWSWPC) January 18, 2024
Here is more new 2023 climatology:
December 2023 in Mexico had an average temperature of 17.0C which matches the 1991-2020 normal.— Extreme Temperatures Around The World (@extremetemps) January 19, 2024
It was very dry in the Northwest and wet in the central-east.
See temperatures and rainfalls anomalies maps credit of SMN-Conagua. pic.twitter.com/PFnidECZ01
December 2023 in #Barbados had an average temperature of 27.05C which is 0.3C above normal.— Extreme Temperatures Around The World (@extremetemps) January 18, 2024
Record high temperatures as high as 33.4C were recorded during the month.
Some violent storms and flash floods contributed to a wetter month than average (see rainfall totals map). pic.twitter.com/vGvEROU2C4
Here is More Climate News from Friday:
Its much worse than #climate models predict as new research confirms— GO GREEN (@ECOWARRIORSS) January 19, 2024
Most Earth system models are missing key piece of future climate puzzle, such as thawing permafrost, frozen ground in the North that contains twice as much carbon as the atmospherehttps://t.co/puqYtQ6MyF
The amazing scientific consensus. Reported once then erased from daily news:— Ben See (@ClimateBen) January 19, 2024
“Targeting a climate resilient, sustainable world involves fundamental changes to how society functions including changes to..political & economic systems and power relationships”https://t.co/huWxG51yJS
November data was just released by CERES yesterday, with albedo setting yet another record low at 28.6%. That is, less incoming solar is being reflected back out. More is being absorbed.— Prof. Eliot Jacobson (@EliotJacobson) January 19, 2024
Why? Less sea ice, darker snow (ash/algae), fewer aerosols, land-use changes and more. pic.twitter.com/DJhJsf9QlF
"Climate change and atmospheric dynamics unveil future weather extremes" | @Penn press release for our (@xueke_li et al) new @PNASNews study on the role of jet stream resonance in the 2021 Pacific Northwest "Heat Dome" event: https://t.co/ttBepxxuLE— Prof Michael E. Mann (@MichaelEMann) January 19, 2024
The wheels of justice turn slowly sometimes, but great to see deniers taken to court for lying about science-in this case, smearing/harassing climate scientist @MichaelEMann— Dr. Gabriel Filippelli (@GabeFilippelli) January 18, 2024
US climate scientist’s defamation case over online attacks finally comes to trial https://t.co/AoGnkAzTMI
If you haven't yet fully digested the mechanics of decreasing sulfate aerosols driving the acceleration of climate f&%kery in 2023, this video featuring @LeonSimons8 is well worth a watch:https://t.co/PWzvYspimo— Prof. Eliot Jacobson (@EliotJacobson) January 18, 2024
“It took 28 years of COPs before we could even use the phrase ‘fossil fuel’,” @AlGore said. “The climate crisis is a fossil fuel crisis and yet it’s taken this long to overcome this resistance and even naming that problem.” https://t.co/3CXb4fM1d8— Climate Reality (@ClimateReality) January 19, 2024
#Arctic sea ice extent is currently the 19th lowest on record (JAXA data)— Zack Labe (@ZLabe) January 19, 2024
• about 330,000 km² above the 2010s mean
• about 260,000 km² below the 2000s mean
• about 810,000 km² below the 1990s mean
• about 1,240,000 km² below the 1980s mean
Plots: https://t.co/tBkW5GBgHF pic.twitter.com/HdqNMtF3sd
It's been 5 years since I took up Twitter.— Edgar McGregor (@edgarrmcgregor) January 19, 2024
In that time, many of my fellow climate activists have moved on while new ones replaced them.
That is okay. Times change.
I can't help but wonder why this movement isn't bigger. I can't help but wonder why more aren't angry. pic.twitter.com/1Uv8YHijM0
More from the Weather Department:
The snow in Philadelphia, Pennsylvania, shows no signs of stopping anytime soon, with the area expecting 4 inches or more.@JMichaelsNews is LIVE sharing current conditions as the city braves #Indigo under a state of emergency: pic.twitter.com/KDODbUnnQc— The Weather Channel (@weatherchannel) January 19, 2024
This may explain any shoveling soreness. These are totals based on spotter reports as of 9:55am today. Only spotters that reported consistently are included and as usual numbers vary greatly. Some could still see another foot by Friday. #News4Buffalo #LakeEffect#4WarnWeather pic.twitter.com/73CsitD4Yv— Todd Santos (@ToddSantos4) January 18, 2024
Holy cow. Some big rain totals showing through next week. Latest EURO/GFS here into the following Saturday. Multiple rounds of incoming weather from the SW showing starting late Sunday/Monday. https://t.co/Hk3pbO7x8H pic.twitter.com/xU5E036QGB— Mike's Weather Page (@tropicalupdate) January 18, 2024
Latest 7 day rain map through next Friday AM here… lingers into Saturday too. Continuous SW flow up through Texas towards the Florida panhandle next week. Out west is dealing with Pacific storms with heavy rains too. https://t.co/W7KmGIeLi8 pic.twitter.com/IOttOdxNRB— Mike's Weather Page (@tropicalupdate) January 19, 2024
Great video from earlier today. https://t.co/0BrBEzXBVS— Capital Weather Gang (@capitalweather) January 19, 2024
SNOW IN FLORIDA 47 YEARS AGO! ❄️— Matt Devitt (@MattDevittWX) January 19, 2024
On January 19th, 1977, an extremely rare snow event swept across our state. Areas of 1 – 2" fell across Central Florida and light snow was reported in Southwest Florida towards West Palm Beach and Miami. Snow flurries were seen in the Bahamas too!… pic.twitter.com/LUU0w3vH9M
Today’s News on Sustainable Energy, Traditional Polluting Energy from Fossil Fuel, and the Green Revolution:
Cop28 deal will fail unless rich countries quit fossil fuels, says climate negotiator https://t.co/lrJdxwe71L— Guardian Environment (@guardianeco) January 19, 2024
BIG NEWS! This is an important victory for current and future generations and the environment.— Greenpeace International (@Greenpeace) January 18, 2024
RT to celebrate! https://t.co/lEUmHTQNXM
If the U.S. is to reach its climate goals, solar arrays will cover an area larger than Maryland.— Yale Environment 360 (@YaleE360) January 19, 2024
Growing native flowers and grasses at these sites could give a much-needed boost to imperiled insects, a new study finds.
Read more @YaleE360: https://t.co/rngrB5jxmJ pic.twitter.com/rG5CRaa8sv
More on the Environment and Nature:
Erosion is sculpting dramatic features in the world's biggest iceberg in what's likely to be the final months of its existence. https://t.co/LNCUz6ylCc— Svein Tveitdal (@tveitdal) January 18, 2024
A huge spike now in sea surface temperatures along eastern Tasmania.— Terry Hughes (@ProfTerryHughes) January 20, 2024
These positive anomalies are even higher than during severe coral bleaching events on the #GreatBarrierReef, and very destructive to kelp bed systems. https://t.co/Bc7FSu4CA0 pic.twitter.com/bFvXsZVCby
Every species on Earth deserves life not just humans but humans are eradicating almost every other species on Earth in greatest extinction in over 66 millions years https://t.co/XNndpi6KSK— GO GREEN (@ECOWARRIORSS) January 19, 2024
More on Other Science and the Beauty of Earth and this Universe:
Scientists Film Plant 'Talking' to Its Neighbor, And The Footage Is Incredible— GO GREEN (@ECOWARRIORSS) January 19, 2024
Imperceptible to us, plants are surrounded by a fine mist of airborne compounds that they use to communicate and protect themselves. https://t.co/MEIRHq0BCN pic.twitter.com/aWwJaUY8Eg
With a sunset from home, I wish my beloved and much appreciated fellow inhabitants of planet Earth a fantastic start in the weekend, a peaceful, relaxing good evening and a blessed night. May God bless you, stay healthy and kind.❤️💙💚🌿🌱☘️🌲🌳🍀💚 pic.twitter.com/cprBmAx0XD— Green is a mission (@Greenisamissio1) January 19, 2024