What the overturning Chevron deference means for the Great Lakes

July 29, 2024 Nicholas J. Schroeck

By Nicholas J. Schroeck

July 29, 2024

The United States Supreme Court recently overturned a 40-year-old precedent that could have major implications for the Great Lakes. In deciding two cases this term related to herring fishing and regulatory fees — Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce — the nation’s highest court overturned its 1984 holding also known as the “Chevron precedent” or “Chevron deference.” In Chevron v. Natural Resources Defense Council, courts had to defer to federal agency interpretation of unclear or ambiguous language in laws passed by Congress. Meaning that agency staff at the Environmental Protection Agency (EPA) and other federal agencies could interpret laws to eliminate ambiguities and fill holes or gaps in Congressional legislation.

Chevron deference recognized that agency staff, who should be experts in their relevant fields (chemists, biologists, engineers), have the requisite skills and technical knowledge to address complicated issues that arise when taking language from a law passed by Congress and developing rules and regulations. While Chevron deference had been the norm for decades in administrative law, which is the area of law most relevant to federal agencies, the holding faced growing criticism over the years from conservative judges and lawyers arguing that it had resulted in a bloated, powerful and unelected bureaucracy.

The Loper case overturned Chevron by a 6-3 majority along ideological lines, with all conservative justices in the majority. In doing so, the Supreme Court decided that judges and not agencies should be the final arbiter on myriad regulations related to water pollution, air pollution, food and drug safety, and student loans — to name just a few. In writing for the majority, Chief Justice Roberts held that Chevron was “fundamentally misguided” and that judges should have the final say when there are disputes as to unclear language in laws passed by Congress. Justice Kagan, writing in dissent, asserted that the court’s majority has made itself “the country’s administrative czar.”

The opinion overturning Chevron deference does include limiting language. Chief Justice Roberts wrote that in some instances an agency’s interpretation of a law is appropriate when it is authorized to exercise a degree of discretion. Roberts also wrote that the court did not want to relitigate past judicial decisions that relied on Chevron deference. His attempt to limit a rush to the courthouse may be futile, if past cases are a guide.

There are now hundreds of potential questions to be litigated that agencies could have previously answered relative to future regulations. Likewise, past agency decisions that are considered settled law may be opened for judicial review. For example, the EPA has relied on their interpretation of broad authority under the Clean Air Act to limit greenhouse gas emissions. Similarly, the EPA recently asserted authority under the Toxic Substances Control Act to regulate PFAS. Corporations, and their trade associations, are likely to challenge EPA regulations considering the new ruling. And, importantly, the Loper ruling applies to all federal agencies, so we may see a deluge of litigation in many areas related to public health and safety.

What does the Loper decision mean for the Great Lakes?

Most states have delegated authority to execute and enforce federal environmental laws. The EPA’s interpretation of laws that regulate pollutant discharges under the Clean Water Act (CWA), for example, are included in permits issued by the states. So, if the federal requirements change due to a judicial opinion, those changes will make their way into permit conditions, or relaxing of permit conditions, at facilities permitted under the Clean Water Act.

As mentioned above, regulation of PFAS and other “forever chemicals” may be at risk in the post-Chevron world. Under the Clean Water Act, it is illegal to discharge a pollutant from a point source into the Great Lakes and other waters of the United States. The law is enforced through permits that are often very technical and conditions in which rely on Chevron-type deference. The concern from environmentalists is that a relaxing of permit conditions could lead to further degradation of the Great Lakes.

Similarly, as new chemicals or pollutants enter the marketplace, there is a risk if they are not specifically listed in a law passed by Congress, that they may not be regulated in the future. This is because courts may rely on their own interpretation of congressional intent without technical or scientific expertise on the underlying issues.

One small reason for hope is that judges may be forced to read or reread the actual text of our environmental laws as originally adopted by Congress. The Clean Water Act includes the goal to eliminate all discharges of pollutants into waters of the United States, by 1985. We have not yet achieved that goal. The National Environmental Policy Act (NEPA), which requires environmental assessments and environmental impact statements for certain federal actions, includes very strong language ordering the federal government to act as an environmental trustee for future generations. Both laws have been limited by the courts over time, and often at odds with the language drafted by Congress.

Another backstop for Great Lakes protection is the obligations on the United States under international agreements. The Boundary Waters Treaty of 1909 between the United States and Canada aims to prevent disputes over the use and pollution of our shared waters and to solve problems as they arise. Under the authority of the Boundary Waters Treaty, the U.S. and Canada entered into the Great Lakes Water Quality Agreement in 1972. Amended in 2012, the agreement codifies a commitment between our two countries to protect and restore the Great Lakes. In times of regulatory uncertainty on either side of the border, it is fortunate that the U.S. and Canadian governments have treaty authority to hold each other accountable for protecting our shared waters.

Industry has been successful over the years in limiting the coverage of our environmental laws through litigation. In this new, post-Chevron legal landscape, there is an opportunity to refocus Congress’ language and intent of laws like the CWA and NEPA and to convince judges to order our federal agencies to take a more proactive and protective approach to environmental regulation. This litigation approach may be successful initially in federal district courts and in some federal appellate courts depending on the ideology of the individual judges. But the current majority of the Supreme Court has ruled repeatedly in favor of industry interests and has sought to lessen the coverage of our environmental laws.

In short, this litigation strategy will ultimately be limited by the current Supreme Court. Advocates can also work to convince Congress to amend and update our environmental laws to include specificity that would survive judicial review under Loper. Getting Congress to pass new environmental legislation or to make significant amendments to existing legislation is no small order. Experience has shown that industry lobbyists are very effective at shaping or killing legislation that is unfavorable to their bottom line. To overcome these roadblocks, large and strong Congressional majorities in favor of environmental protection, like those in the 1970s, may be required.