A Hopeful Goodbye to Chevron Deference

By Joshua Roubik

Published July 3, 2024

On Thursday, June 27th, 2024, the United States Supreme Court issued an opinion in Ohio v. EPA.[1] In its Opinion, the Court explained that the “good neighbor” rule which requires that States protect the air quality of downwind states by reducing air pollution, would be stayed.[2] While the ruling dealt another blow to environmental regulation in the United States, one critical error stuck out in the Court’s opinion. Although it has since been revised, the original version of the opinion on multiple occasions referred to “nitrous oxide” (commonly known as laughing gas) when intending to refer to “nitrogen oxides,” the ozone precursor chemical being regulated.[3]

The very next day, the Court overruled Chevron deference in Loper Bright Enterprises v. Raimondo,[4] an unsurprising move that “returns judges to interpretive rules that have guided federal courts since the Nation’s founding.”[5] With almost perfect comedic timing, the Court explained that “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the [Administrative Procedures Act] requires.”[6] This standard coming from a Court that, just 24 hours prior, could not keep nitrogen-based compounds straight.[7]

I have concerns that echo those of Justice Kagan: “Judges are not experts in the field, and are not part of either political branch of the Government.”[8] As she explains, Judges in the United States do not know “When [] an alpha amino acid polymer qualif[ies] as a protein[.]”[9] Judges making these decisions has concerning implications and will likely have serious impacts on Administrative Law in the United States.

In the face of these rulings and their implications, I choose to have hope.

When Chevron was decided in 1984, it was lauded as a win for the deregulatory agenda of the Reagan Administration.[10] Democrats worried it would allow the Reagan EPA to deregulate as long as its interpretation of the statute was “reasonable.”[11] Over the years, a stronger and stronger executive branch and a less active Congress made it clear that deference to the executive could be used to further environmental protection.[12] A ruling believed to be detrimental to the regulatory state in the U.S. instead became the path to make the statutes work for the experts in agencies.[13]

It is hard to imagine it any other way. The administrative state is a cornerstone of executive action, and its strength has led to Presidential elections being repeatedly named the “most consequential election.”[14] In 1984, someone had to imagine a new way; they had to wake up in the face of a wildly popular Reagan administration and decide that they were going to fight that machine. We are the product of their imagination.

Today, we have a similar opportunity. We can choose to watch as all the 850 federal judges across the United States vacate every rule they do not like, or we can find a new way. It does happen all at once. Our problems will not be fixed tomorrow. It will require us to pick ourselves up again and again, with multiple losses and setbacks, and keep trying. Chevron deference had 40 years to change the way that we viewed the administrative state, and we turned that around to protect our environment and health.

I hope that in 40 years, our kids will be proud to say that we found a new way in the face of Loper Bright. And I hope that you will join me and those who have come before us in finding that new way.

[1] Ohio v. EPA, No. 23A349, slip op. (U.S. June 27, 2024, revised June 27, 2024).

[2] Id. at 2, 19.

[3] Compare id. with Ohio v. EPA, No. 23A349, slip. op. 5, 7, (U.S. June 27, 2024) https://www.supremecourt.gov/opinions/23pdf/23a349diff_lkhn.pdf.

[4] No. 22-451, slip op. at 35 (U.S. June 28, 2024).

[5] Id. at 2 (Gorsuch, J., concurring).

[6] Id. at 35.

[7] Ohio v. EPA, No. 23A349, slip op. at 5, 7 https://www.supremecourt.gov/opinions/23pdf/23a349diff_lkhn.pdf.

[8] Loper Bright Enter., No. 22-451 at 31 (Kagan, J., dissenting) (citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865 (1984)).

[9] Id. at 13 (Kagan, J., dissenting) (citations omitted).

[10] Gregory A. Elinson & Jonathan S. Gould, The Politics of Deference, 75 Vand. L. Rev. 475, 480 (2022).

[11] Id.

[12] Id. at 481.

[13] Id. at 483.

[14] See Henry J. Aaron, 2016: The Most Important Election Since 1932, Brookings Institution, (Dec. 18, 2015) https://www.brookings.edu/articles/2016-the-most-important-election-since-1932/ (stating the importance of the 2016 presidential election); Michael Hirsh, The Most Important Election. Ever., Foreign Policy Magazine (Sept. 25, 2020) https://foreignpolicy.com/2020/09/25/2020-election-donald-trump-joe-biden/ (stating that the 2020 presidential election was the most important ever); Michael McKenna, The Most Important Election of Our Lifetime: 2024 Edition, The Washington Times (Nov. 15, 2023) https://www.washingtontimes.com/news/2023/nov/15/most-important-election-of-our-lifetime-2024-editi/ (stating the 2024 presidential election is once again the most important election of our lifetime).