Trusting Courts to Protect the Environment: The Aftermath of Loper Bright.
Anna Nguyen
“Chevron is overruled.”[1] On June 28th, 2024, the Supreme Court dismantled a 40-year-old precedent that deferred courts to the reasonable interpretation of agencies.[2]
Chevron U.S.A., Inc. v. Natural Resources Defense Council was a landmark case.[3] The Supreme Court recognized the specialized expertise agencies had, allowing them freedom and flexibility within Congress’ statutes. The case established Chevron deference, a two-step process. First, the court asked if the statute addressed the issue before the court. If the statute was ambiguous, courts deferred to the reasonable interpretation of an agency.[4] For decades, Chevron was one of the most cited cases in administrative law —cited more than 18,000 times,[5] shaping the relationship between courts and agencies.[6]
But in Loper-Bright Enterprises v. Raimondo, the Court struck down Chevron, arguing that its deference to agencies conflicted with the core principles of the Administrative Procedure Act (APA).[7] Chief Justice Roberts, writing for the majority, argued that under the APA “it thus ‘remains the responsibility of the court to decide whether the law means what the agency says.’”[8] Chief Justice Roberts also asserted that courts are expected to make technical decisions, since many statutory cases “call upon courts to interpret the mass of technical detail that is the ordinary diet of the law.”[9] Chevron, the Chief Justice claimed, had “proved to be fundamentally misguided” and “unworkable.”[10]
Loper-Bright laid out a new framework which will expand the power of the judiciary while narrowing the role of federal agencies. Chief Justice Roberts echoed the famous dictum from Marbury v. Madison: “[i]t is emphatically the province and duty of the judicial department to say what the law is.”[11] The Chief Justice further emphasized that “Chevron prevents judges from judging.”[12] Meanwhile, Justice Kagan’s adamant dissent stated “[i]f opinions had titles, a good candidate for today’s would be Hubris Squared.”[13]
In this post-Loper Bright world, courts no longer have to defer to agencies. Instead, judges will have the last say on statutory interpretation, even if this involves technical or scientific questions. Chief Justice Roberts argued that “Congress expects courts to handle technical statutory questions . . .” and “. . . agencies have no special competence in resolving statutory ambiguities.”[14] Agencies no longer fill in the gaps. This role returns to the court.
SHOULD WE TRUST JUDGES TO PROTECT OUR ENVIRONMENT?
Wouldn’t it be simpler—and more effective—if the courts trusted agency expertise? In Chevron, Justice Stevens admitted judges were not “experts in the field.”[15] The American public also mostly favors federal agencies (with exceptions, like the DOJ).[16] This support isn’t necessarily unfounded. Agencies like the Environmental Protection Agency (EPA) are equipped with the scientific resources, research facilities, and expertise needed to tackle complex issues like climate change, air and water quality, and biodiversity protection.[17] For example, the EPA has scientists in regional laboratories across the nation, conducting field work and providing empirical evidence to support informed regulatory decisions and programs.[18] As Justice Kagan asserted in her dissent of Loper-Bright, ambiguous statutes aren’t always an accident—Congress can leave gaps in statutes, “believing that regulatory experts would be in a ‘better position’ to do so.”[19] Now, with the Chevron deference struck down, the question is whether courts are the best vehicle to make critical decisions for the environment—since their rulings are bound to have effects on our Earth.[20]
Judges are skilled at analyzing complex legal issues. They make decisions that have broad implications in society all the time. Thus, they are adept at weighing the public interest of a statute, determining the truth of the facts, and examining evidence. However, judges generally have broad understandings of various areas, and not the specialized expertise that environmental law can require. The law and science are both based in evidence, but they diverge in other ways. While the law focuses on a final truth based on rules and precedent, the scientific world is theoretical, open-ended, and subject to constant revision.[21]
Environmental law is dominated with ambiguous statutes. This ambiguity allows for agencies to respond rapidly to developing trends without having to pass new legislation. With the rise of new technologies and scientific discoveries, developments often happen faster than Congress’ legislation. The room for flexibility allows agencies to regulate within the scope of these statutes. Statutes such as the Clean Air Act, Clean Water Act, and Endangered Species Act were enacted decades ago, but are still relevant today because they have the flexibility to evolve over time.[22]
How do judges interpret the EPA’s ambiguous statutes? One example of an interpretation is within Massachusetts vs. Environmental Protection Agency.[23] Textualist judges such as Justice Scalia insist statutes be examined based on their plain meaning. In Massachusetts v. EPA, the majority opinion determined that the language of the Clean Air Act included greenhouse gases in the term “air pollution.”[24] Justice Scalia (dissenting) was grounded in dictionary definitions, claiming greenhouse gases are not required to be regulated in the Clean Air Act because “air pollution—focusing on impurities in the ‘ambient air’ at ground level or near the surface of the earth—is perfectly consistent with the natural meaning of the term.” Justice Scalia’s textualism doesn’t reflect a traditional scientific inquiry, and a judicial focus on “plain meaning” may not align with the fluid nature of science and technology.[25]
Another debate arose on the ambiguity of whether a wetland counted as “waters of the United States.”[26] In Sackett v. Environmental Protection Agency, the EPA ordered Sackett to restore their property after backfilling the lot with dirt.[27] The EPA claimed that this backfilling violated the Clean Water Act, since the Sackett’s property contained wetlands.[28] Under the EPA’s current rule at the time, “waters of the United States” were defined as navigable waters.[29] The EPA insisted that “water” naturally encompassed “wetlands because the presence of water is ‘universally regarded as the most basic feature of wetlands.’”[30] The Court rejected this, and defined the scope of the EPA’s jurisdiction as waters that are relatively permanent and continuous.[31] The majority based its reasoning off of statutory construction—if a federal statute affected property rights, it should be examined more narrowly.[32] In the dissent, Justice Kavanaugh, while agreeing with protecting property rights, argues against the majority’s new definition: “[b]ecause of the movement of water between adjacent wetlands and other waters, pollutants in wetlands often end up in adjacent rivers, lakes, and other waters.”[33] Environmental law experts also agree that this new definition would lead wetlands subject to pollution.[34] The Court in Sackett seems conflicted about the trade-off between individual rights and the realities of environmental protection.[35]
The Court’s recent decisions have decreased the scope of the EPA’s powers. Another recent case, West Virginia v. EPA, also recently limited the EPA’s authority under the Clean Air Act to regulate carbon emissions.[36] Loper-Bright was the final blow. With the end of Chevron, the American Association for the Advancement of Science (AAAS) warns there is an “urgent need to scale objective scientific evidence and expertise across all branches of the federal government.”[37] In their amicus brief to the Supreme Court, the AAAS asserted that in American Electric Power Co. v. Connecticut the Court recognized “[a]gencies can hear from all concerned stakeholders and elicit expert input, studying an issue—and the various state attempts to resolve an issue—in a way a court cannot.”[38] Considering the impacts of Loper–Bright, the AAAS is planning programs to help bridge the gap, training scientists to assist judges in understanding complicated science. AAAS and others in the field recognize how scientific education is important for the judicial system.[39]
IMPLICATIONS
The Loper-Bright decision is a win for industries highly regulated by agencies.[40] Even more of a win occurred in Corner Post Inc. v. Board of Governors of the Federal Reserve System, which broadens the interpretation of the default 6-year statute of limitations applicable to suits against agencies.[41] Instead of the statute of limitations occurring six years after an agency’s final rule is instated, the limitation is now six years after the plaintiff is injured by agency action.[42] Combined, agencies will likely see a rise in litigation against them.[43]
Not all is lost for agencies. In Loper-Bright, Chief Justice Roberts makes clear that the Court isn’t questioning prior cases that relied on the Chevron deference: “[t]he holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite the Court’s change in interpretive methodology.”[44]
In sum, the Loper-Bright decision curtails the power of administrative agencies, like the EPA, to regulate environmental protections. Now, federal judges from all 50 states will have the power to apply their reasonable interpretations to statutes —rulings that will impact the environment, public health, and more. We will have no choice but to trust judges to apply the law in the best interests of the environment, a responsibility that demands specialized expertise and a deep understanding of the evolving scientific landscape.[45]
[1] Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 412 (2024).
[2] Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 838 (1984).
[3] Id. at 837.
[4] Id.
[5] Benjamin M. Barczewski, Cong. Rsch. Serv., LSB10976, Chevron Deference in the Court Of Appeals 2 (2023).
[6] Id.
[7] See Loper Bright, 603 U.S. at 371.
[8] Id. at 392.
[9] Id. at 402.
[10] Id. at 407.
[11] Id. at 385.
[12] Id. at 374.
[13] Id. at 451 (Kagan, J., dissenting).
[14] Id. at 400-02.
[15] See Chevron, 467 U.S. at 865.
[16] Andy Cerda, Americans see many federal agencies favorably, but Republicans grow more critical of Justice Department, Pew Rsch Ctr., https://www.pewresearch.org/short-reads/2024/08/12/americans-see-many-federal-agencies-favorably-but-republicans-grow-more-critical-of-justice-department/ (last visited Feb. 20, 2025).
[17] Environmental Protection Agency, Our Mission and What We Do, https://www.epa.gov/aboutepa/our-mission-and-what-we-do (last visited Feb. 20, 2025).
[18] Id.
[19] See Loper Bright, 603 U.S. at 451 (Kagan, J., dissenting).
[20] See Jeffery Mervis, Supreme Court ruling may threaten role of science in U.S. rulemaking, Science (Jun. 28, 2024) https://www.science.org/content/article/supreme-court-ruling-may-threaten-role-science-u-s-rulemaking.
[21] See Sheila S. Jasanoff, Common Sense & Judicial Power in U.S. Courts, Daedalus (2018) https://www.amacad.org/publication/daedalus/science-common-sense-judicial-power-us-courts; see also David L. Faigman, Judges as “Amateur Scientists,” 86 B.U.L. Rev. 1207, 1207-10 (2006) (discussing the role of judges knowing scientific material); see also Paul A. Hanle and Michael D. Mastrandrea, Climate Science and Law for Judges: How Climate Science Works, Environmental Law Institute (2023) (describing the differences between law and science) https://www.eli.org/sites/default/files/files-pdf/HCSW_Hanle%20Mastrandrea.pdf.
[22] See National Agricultural Law Center, Environmental Law: An Overview, Univ. of Ark. Div. of Agric. Rsch. & Extension (last accessed Feb 20, 2025) (discussing ambiguous environmental statutes) https://nationalaglawcenter.org/research-by-topic/environmental-law/environmental-law-overview/.
[23] See Sheila S. Jasanoff, Common Sense & Judicial Power in U.S. Courts, Daedalus (2018) https://www.amacad.org/publication/daedalus/science-common-sense-judicial-power-us-courts;
[24] Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 497 (2007).
[25] See Massachusetts, 549 U.S. at 560 (Scalia, J., dissenting); see also Brief for The American Association for the Advancement of Science et al., as Amici Curiae Supporting Respondents, Loper Bright Enterprises v. Gina Raimondo., 603 U.S. 451 (2024).
[26] See EPA, About Waters of the United States, EPA.gov, https://www.epa.gov/wotus/about-waters-united-states (Last updated on March 12, 2025).
[27] Sackett v. Environmental Protection Agency, 598 U.S. 651, 657-60 (2023).
[28] Id. at 662.
[29] Id. at 657.
[30] Id.
[31] Id at 671, 674.
[32] Id.
[33] Sackett, 598 U.S. at 726 (Kavanaugh, J., concurring in part).
[34] Adam Liptak, Supreme Court Limits E.P.A.’s Power to Address Water Pollution, N.Y. Times (May 25, 2023) https://www.nytimes.com/2023/05/25/us/supreme-court-epa-water-pollution.html.
[35] Id.
[36] West Virginia v. Environmental Protection Agency, 597 U.S. 697 (2022).
[37] Sudip Parikh and Theresa Harris, Urgent Need to Scale Scientific Expertise in the Courts with Chevron Doctrine Overturned, AAAS (Jun. 28, 2024) https://www.aaas.org/news/urgent-need-scale-scientific-expertise-courts-chevron-doctrine-overturned.
[38] See Massachusetts, 549 U.S. at 560 (Scalia, J., dissenting); see also Brief for The American Association for the Advancement of Science et al., as Amici Curiae Supporting Respondents, Loper Bright Enterprises v. Gina Raimondo., 603 U.S. 451 (2024).
[39] Parikh and Harris, supra note 37.
[40] L. Delta Merner, How the Supreme Court Chevron Decision Benefits Big Oil and Gas, Union of Concerned Scientists (Jul. 1, 2024) https://blog.ucsusa.org/delta-merner/how-the-supreme-courts-chevron-decision-benefits-big-oil-and-gas/#:~:text=Understanding%20the%20Chevron%20Doctrine,doctrine%20more%20than%2018%2C000%20times.
[41] Corner Post, Inc. v. Board of Governors of the Federal Reserve System, 603 U.S. 799 (2024).
[42] Id.
[43] Id.
[44] See Loper Bright, 603 U.S. 376.
[45] See Massachusetts, 549 U.S. at 560 (Scalia, J., dissenting); see also Brief for The American Association for the Advancement of Science et al., as Amici Curiae Supporting Respondents, Loper Bright Enterprises v. Gina Raimondo., 603 U.S. 451 (2024).