US climate policy has a herring problem (II/III)

It is nearly impossible to conceive of any significant environmental regulation over the past four decades that has not involved the application of the “Chevron deference.” It’s one reason conservatives and others, e.g., the fossil fuel industry, are now rooting for the US Supreme Court (SCOTUS) to strike down the deference—in the name of the separation of powers set out by the US Constitution.

The instruments of the deference’s possible destruction will be the high court’s decisions in two cases involving herring fishing. The cases, Loper Bright Enterprises v. Raimondo and Relentless Inc. v. US Department of Commerce could be to administrative law what Dobbs v. Jackson Women’s Health has been to as a woman’s right to an abortion. A decision is expected this summer.

The Supreme Court agreed to hear the cases, but the only question it will be addressing is whether to reverse or refine the decision in the 1984 case of Chevron v. NRDC that gave rise to the doctrine named for it. It will not be deciding whether the $700 daily charge to herring fishing boat owners to cover the cost of inspectors is reasonable.

There are very practical reasons for the high court to more or less maintain the current balance between the three branches of government that would kick the current system into a cocked hat that would more than strain the resources of the judiciary.

Who has the power—to do what?

Beyond the particulars of the Loper and Relentless cases loom tough constitutional questions about the separation of powers between the three branches of government. Who has the power to write, administer, and interpret the laws of the land? Who has the constitutional authority to say what’s ambiguous?

And more, where does the power and responsibility of one branch end and the next one begin? Can Congress share or shed its lawmaking responsibilities to the executive branch? Which branch is more “accountable” to We, the people?

In political terms, the Chevron deference is about the role of government and the administrative state. It’s a concept that deeply divides Republicans and Democrats and is a central element of today’s culture wars. Conservative pundits and pols claim judicial deference is a nefarious plot to undermine American democracy by “socialists-slash-communists” like Senator Bernie Sanders (I-VT) and Representative Alexandria Ocasio Cortez (AOC).

Chevron is “a perpetual thumb on the scale, favoring today’s swollen executive.”

George Will

On the other side of the argument are progressive organizations like the Center for American Progress (CAP): “Conservatives have long battled against the expert civil servants within administrative agencies—which they’ve recently branded the ‘deep state’—in favor of the corporations and moneyed interests the agencies often are mandated to regulate.” [Italics mine]

Both sides agree that judicial deference is also about government accountability—although here, too, they come at it from different directions. The CAP states: “The modern right-wing movement is explicitly attempting to dismantle federal agencies it falsely paints as filled with bureaucrats with sinister intentions...[and] dismantle enforcement of laws that hold businesses accountable.”

Mark Chenoweth, in a piece posted on the Federalist Society website (the right’s preferred bar association), believes when a judge defers “to the executive branch’s typically self-interested interpretations of statutes, he abandons his personal duty as a judge to reach his own judgments and does an end run around the constitutional safeguards to judicial independence.”

Chenoweth equates judicial deference with a bias towards one of the parties in a lawsuit. George Will agrees, stating that deference favors “the most powerful litigant, the federal government.”

Critics attack federal agency leaders and their staffs, claiming they are unelected and unaccountable to voters, have their own agendas, and act as a “junior Congress,” thereby taking on legislative powers in violation of the Constitution’s separation of the branches—each with their unique responsibilities but whose boundary lines may not always clear.

Supporters of the deference critics claim that the president is more accountable than any senator or representative because he’s elected nationwide. The executive branch is also responsible to those in Congress.

Although not in the direct line of day-to-day decisionmaking in the agencies, Congress controls the purse strings. Members routinely haul agency personnel up to Capitol Hill to meet with them in their offices and testify at hearings about the operation and status of their programs. During all these interactions members of Congress have input into the process.

As no one really likes the bureaucracy, arguments against it have an atavistic appeal.

Love or loathe them, civil servants are essential to the operation of government—whether large or small, democratic or authoritarian, secular or sacred. They’re there to make the trains run on time.

Executive branch agencies get caught between administrations. A new president comes to town while the executive agencies are implementing the policies that the previous Congress and president agreed to. Should Trump capture the White House for a second time, he’ll come into office while the bureaucracy is implementing the Inflation Reduction Act (IRA). It’s the Biden administration’s signature climate law, and a policy Trump hates and has targeted in speeches.

It’s not that one administration can’t cancel out another’s rules by rescinding old regulations and replacing them with new ones. But it has to be done by the rule of law. To rescind a major environmental regulation requires another rulemaking procedure that can take years to finalize. A president and Congress of the same party can act to undo things more rapidly. However, consider that the Trump administration hadn't succeeded in rolling back every Obama-era regulation it had hoped to within its full four-year term. Biden will suffer the same situation at the end of its first term.

Trump’s animosity towards career bureaucrats is personal. It’s based on the misbegotten belief that civil servants are there to serve his personal interests whatever those might be—without regard to the rule of law. It’s hardly a coincidence that the Trump administration lost nearly 93 percent of the time in court —typically for violations of the Administrative Procedure Act (APA) that career staff told him must be heeded. Warnings that were largely ignored.

“Either the deep state destroys America, or we destroy the deep state.”

 Donald J. Trump

Trump has already said that on first day of his next administration that he intended to dismantle the deep state. It would start with his re-issuing his Schedule F executive order. Trump’s intention is to convert “tens of thousands” of  career civil servants who have anything whatever to do with policy into political appointees serving at his whim and fancy.

Between lawsuits and political pushback, such an order would create unimaginable uncertainty about the government. Should he accomplish the conversions, it would mean potentially swapping out the tops of federal agencies every four to eight years—a practical impossibility. It’s fine if your objective is chaos.

The larger context—limiting the reach of executive agencies

The Loper and Relentless cases are part of a grander scheme by conservatives to restrict the reach of regulatory agencies. The Supreme Court’s 2022 decision in West Virginia v. EPA provides a window into the possible outcome in the herring cases, as it offers courts a way around judicial deference.

The Supreme Court’s decision in West Virginia held that Congress may not authorize an administrative agency like the EPA to address what was termed a “major question” unless Congress gives it specific authority. A major question is sketchily defined as one having “great economic and political significance.”

“Broad statutory language, written with the aim of empowering an agency to take on new problems in new ways will no longer suffice^[i].”

Due to the West Virginia decision, “many agencies will just avoid taking any actions in the first place, knowing the risk of a decision being overturned. The obvious result could be a federal government unable to tackle the biggest issues society faces.”

Also, in the conservatives’ anti-regulatory quiver is US Securities and Exchange Commission (SEC) v. Jarkesy (Jarkesy). SCOTUS has already heard oral arguments in the case. The decision could impact the SEC’s “ability to bring enforcement actions for securities fraud before administrative law judges, rather than in federal district court.” 

Jarkesy claims that the SEC’s administrative procedure, i.e., the use of administrative law judges, denies him his constitutional right to a jury trial and is an improper delegation of congressional powers to the executive branch. If Jarkesy prevails, the consequences will be felt far beyond the SEC. It will impact any quasi-judicial process part of a federal agency’s mission, including Social Security, labor disputes, and workplace safety.

The legal assault on the administrative state is being expanded by companies like Space X, Amazon, Starbucks, and Trader Joe’s, who are looking to “cripple the country’s top labor watchdog, the National Labor Relations Board (NLRB), by having it declared unconstitutional.” Should that happen nearly 90 years of labor law would be jeopardy.

Justice deferred is justice delayed—the downside of doing away with the Chevron deference.

Deep-sixing judicial deference comes with some significant downsides. The defenders of Chevron cite the flooding of “federal courts [by] corporate interests challenging regulations in every sector risking Americans’ access to fair pay and acceptable working conditions, safe food and medications, clean water and air, stable financial markets, [and protecting] civil rights, and much more.”

One of the biggest knocks against doing away with judicial deference is described by Columbia Professor Thomas W. Merrill, a conservative scholar of administrative and constitutional law. According to Merrill, “the Supreme Court has the institutional capacity to decide every case involving a disputed issue of law that comes before it de novo—without giving any weight to the views of the implementing agency.” [Italics mine]

However, the professor warns that giving the same capacity to lower courts would be problematic.

“If every court of appeals were required to apply de novo review to every question of law that arises in a regulatory context, the courts of appeals would be overwhelmed.”

It’s highly probable that different courts would issue different, even conflicting, opinions on the same questions. It could lead to potential—although improper—forum shopping. It’s the practice of finding courts that align best with a plaintiff’s position. The fifth federal circuit is generally recognized as the most conservative, while the District of Columbia circuit as one of the most liberal.

Although opinions differ in terms of degree, overturning the Chevron deference will very likely be met with a raft of new law cases in the federal courts testing the terms in the opinion(s) and seeking clarification on how the high court would define the phrase “of great economic and political significance.” Should Jarkesy prevail, there’s also the caseloads of 2,000 federal administrative law judges and 10,000 administrative judges[ii] who would no longer preside over the quasi-judicial proceedings now handled by executive agencies.

US Treasury employees submitted an amicus brief in Jarkesy, which noted that federal courts “already operate 27 times more slowly than administrative proceedings.” How much slower would cases and controversies be decided with the additional caseloads?

The 2022 decision in West Virginia v. EPA was the final word in a series of cases that began seven years earlier, challenging President Obama’s Clean Power Plan (CPP). Without the addition of thousands of more judges, the exponential growth in court filings could routinely take eight or more years to resolve.

In her dissenting opinion, Justice Kagan wrote that courts lack the knowledge to subsume the function of executive agency subject matter experts as implementers of legislation. When it came to climate matters, she was both particular and brutal:

“The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening.”

During the oral arguments in Relentless, Justice Kitanji Brown Jackson was concerned that by overriding the deference, the court would “suddenly become a policymaker” and asked the plaintiffs’ council how that might be avoided.

A lot rides on major regulatory actions. Through regulation, the government protects the health, safety, and welfare of “We, the People.”

Delays are costly to businesses waiting for the rules on a particular tax credit, e.g., electric vehicles or emission standards from a power plant, to be finally issued. Markets hate uncertainty. Delays are also costly as measured by lives lost or burdened by continued exposure to harmful pollutants and cures for diseases being withheld pending final approval.

Time is a critical element in any policymaking formula. Markets move on. Societies evolve. Delays between the passage of a law and its implementation can make a policy obsolete before it’s even in operation. By the time SCOTUS ruled in the West Virginia case, the US had already surpassed the emission reduction targets of the CPP.

“Congress can hardly see a week in the future.”

Justice Sonia Sotomayor

Congress is hardly better suited than the courts to perform the tasks it routinely assigns to executive agencies. According to the Brennan Center for Justice: “Congressional staff tend to be hardworking and talented,” but they lack the specific knowledge and experience needed to craft implementing regulations. Other problems include high staff turnovers and the lack of access to “high quality, nonpartisan policy expertise.”

Justice Kagan’s robust dissent in West Virginia addresses Congress not knowing what it needs to know and not only when the legislation is first written. “Members of Congress often can’t know enough...to keep regulatory schemes working across time. Nor can Congress (realistically) keep track of and respond to fast-flowing developments as they occur.” (2082)