Legal precedent is for the birds, apparently. In June of this year, the Supreme Court issued a 6-3 decision in the case of Loper Bright Enterprises v. Raimondo, in favor of the plaintiff. (The defendant was Secretary of Commerce Gina Raimondo.) Along with its companion case Relentless, Inc. v. Department of Commerce, in which the plaintiff won in a 6-2 decision (Justice Ketangi Brown Jackson recused herself), these dual cases effectively overturn the 40-year-old precedent known as the Chevron deference doctrine, which has been relied on in thousands of lower court decisions.

The doctrine’s moniker derives from the 1984 case Chevron USA v. Natural Resources Defense Council. That conservative-leaning court, led by Chief Justice Warren Burger, ruled that when the language within any regulation or policy is deemed “ambiguous” or otherwise subjective, courts will defer to the enforcing agency’s expertise. Conservative groups have been trying to overturn Chevron for decades, claiming it gives “unelected bureaucrats” the authority to undermine Congress. Now, it would seem, that power resides in the hands of unelected judges.

Unintended consequences

Bob Marshall, a columnist for The Advocate, recently pointed out a strange irony in the 1984 decision. “The case establishing the precedent was a win for industry against an environmental group. But Chevron soon became a crucial lever for environmental protection because polluters never stopped trying to have it overturned.”

For whatever reason, the plaintiff (Chevron) evidently wanted nothing more than to create a wedge between what could be considered ambiguous and clear-cut when it came to the work of federal agencies.

In a statement issued by White House Press Secretary Karine Jean-Pierre, she says, “The Supreme Court’s ruling … is yet another deeply troubling decision that takes our country backward. [It] undermines the ability of federal agencies to use their expertise as Congress intended to make government work for the people.”

In its most basic terms, overturning the Chevron doctrine means that federal departments and agencies like the EPA, HUD, OSHA, USDA, and dozens more have been stripped of much of their discretionary authority when carrying out laws passed by Congress, such as The National Environmental Policy Act, The Clean Air Act, and The Inflation Reduction Act.

To say nothing of the Roberts Court’s penchant for siding with special interests over clean air laws, federal housing policy, and student loan forgiveness—all at the detriment of any societal benefit—this most recent case could theoretically apply to provisions within the Inflation Reduction Act. Should a well-funded plaintiff come forward and claim that clean energy incentives built into the IRA somehow violate a person’s or corporation’s 9^th Amendment rights, the court will now give considerably less weight to the experts within the Department of Energy, Environmental Protection Agency, and other agencies that have Congressional authority to carry out provisions in the Inflation Reduction Act.

Of course, should the tables turn—and history dictates they will—and a progressive-leaning Supreme Court is pitted against Republican-led executive and legislative branches, this decision may well come back to haunt those who praise the Loper Bright ruling as some form of justice. But then, foresight has never been the government’s strongest attribute.

Plutocracies are bad for housing

Many legal scholars versed in Constitutional Law see Loper Bright as something that reorders separation of powers among the government’s three branches and grants the Supreme Court greater discretion to basically veto the actions carried out by a federal agency. It likewise gives federal courts greater leeway to re-write policy, or at least reinterpret it based on personal preference. Justice Elena Kagan, in her dissent, wrote that the ruling makes the U.S. Supreme Court “the country’s administrative czar.”

“We’re taught in school about how the U.S. government’s separation of powers is supposed to work: Congress writes the laws, the executive branch carries them out, and the judiciary—including the Supreme Court—resolves arguments about what these laws mean and evaluates whether they’re being enforced properly,” writes Jeff Turrentine, a contributor with the NRDC. “In reality, these powers overlap at times between the branches … the system relies on a certain degree of trust.”

David Doniger, senior attorney and climate and energy strategist with NRDC, and the lawyer who represented NRDC in the 1984 Chevron case (the rest of his resume speaks for itself), says, “What it comes down to is this: If Congress has left an agency with a policy choice, the agency should get to make it, not the courts.”

On the topic of why the Chevron deference is important, Doniger writes, “It provides judges with clear guidelines for resolving legal disputes regarding the administration of laws intended to safeguard the public.” The decisions recently handed down in both Loper Bright and Relentless, Inc. have eliminated that failsafe. The highest court in the land has sided with “an alliance of billionaire businessman and conservative groups,” Doniger says, and taken power away from technical experts.

Should it stand, there is only speculation at this point on what standards and regulations will be challenged, and on what grounds. Given the Biden-Harris Administration’s historic efforts to transition to a clean energy economy, including emissions standards for federal buildings, empowering FEMA to incentivize the use of low-carbon building materials, formalizing a national definition for ‘Zero Emissions Buildings,’ and many more policies tied to the IRA and the Infrastructure Investment and Jobs Act (IIJA), agencies are now anticipating challenges of all stripes in the months and years ahead.

One such policy that’s likely to be in the crosshairs is the Federal Energy Regulatory Commission’s (FERC) new transmission and cost-allocation rule, which requires the nation’s transmission providers to implement long-term planning in anticipation of next-generation energy systems. This rule will assuredly be challenged—and possibly overturned—in the lower courts by energy service companies and utility regulators who don’t like the idea of upgrading the grid.

Starting over?

In the Loper Bright decision, Chief Justice Roberts wrote that the Administrative Procedure Act (APA)—a federal law that defines legal procedures for agencies, and the basis for the plaintiff’s case—directs courts to “decide legal questions by applying their own judgement … [making] clear that agency interpretations of statutes … are not entitled to deference.” However, Roberts also concedes, “to the extent these current rules are more firmly ground on what EPA says is their best reading of the law, and on expertise, and in fact-finding on scientific and technical matters, we think they are still quite defensible.”

Roberts and his conservative colleagues may have closed a rather big door on 40 years of precedent, but they also left open a small window. In other words, the expertise of agencies is still legally in play, and federal courts can and should still rely on that expertise where appropriate. This tiny concession offers a sliver of hope. And in a lesser-of-two-evils scenario, abandoning Chevron deference is still preferable to Project 2025.

“The small herring boats are out front in these cases,” Doniger writes, “but siding with them in court are big-business interests that want to avoid the safeguards our environmental, health, and financial laws demand of them.”

It is high time we stopped referring to this Roberts Court as having a “conservative” super majority. True conservatism is supposed to be grounded in principles of restraint, when in fact this current iteration has proven itself perversely activist time and again, willing to entertain far-fetched legal theories, permit dark money to influence elections, and turn a blind eye on decades of legal precedent. The so-called conservative members of this court are many things: reckless, suggestible, and now, evidently, self-dealing. But conservative isn’t one of them.

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