We’re Better Off Without Chevron Deference
In 1984, the U.S. Supreme Court created the doctrine of “Chevron deference”, which required courts to defer to a government agency’s legal interpretation of the statutes the agency implements.1 Earlier this year, in the Loper Bright case, the Supreme Court eliminated that doctrine.2 Since then, commentators have bemoaned the loss of Chevron deference. They say that courts will be making technical decisions that are best left to scientists. But the sky is not falling, and these commentators are greatly overreacting. Because it was an absolute rule, rather than a sliding-scale deference rule like California’s, Chevron deference gave government agencies powers that are usually better left to judges. Judges can still defer, and no doubt will, when a statute truly calls for scientific determination. We’ll take a look at the Clean Water Act to see how Chevron deference played out in practice.
What The Commentators Say
But first let’s hear from the commentators. The headline in Science magazine, for example, asserted that “Supreme Court ruling may threaten role of science in U.S. rulemaking”, and argued that the “ruling means judges should no longer defer to the scientific expertise of those agencies on a vast range of technical questions and, instead, should make such decisions themselves” (emphasis added).3 Henry I. Miller, writing for the American Council on Science and Health, insisted that Supreme Court “decisions have taken the prudence out of jurisprudence, creating a climate of uncertainty and distrust regarding public policy”.4 He cited Blair Levin and Larry Downes, who argued that “[t]he judicial veto doctrine multiplies the number of decision-makers and discounts the value of expertise” in an article entitled “The End of the Chevron Doctrine Is Bad for Business” published in the Harvard Business Review.5
What Waters Are Regulated By The Clean Water Act?
Now to the Clean Water Act, which prohibits “the discharge of any pollutant” except in compliance with the act.6 The phrase “discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source” (emphasis added).7 Let’s stop there for a moment, and consider a regulation issued by a government agency, the U.S. Army Corps of Engineers, that defines “navigable water” as “waters that are subject to the ebb and flow of the tide” or are used (or “susceptible for use”) “to transport interstate or foreign commerce”.8 This definition was undoubtedly taken directly from an 1870 Supreme Court decision, which held that “public navigable rivers in law [are those] which are navigable in fact”, which are those that “are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”9 So far, then, there is no conflict between the agency expertise and the decisions of the Supreme Court.
The controversy about what waters are regulated by the Clean Water Act arises from the decision by Congress to define “navigable waters” as “waters of the United States”.10 What does that mean? A person might conclude that it meant nothing more than “navigable waters”; after all, Congress used the same phrase in 1899 when it prohibited “[t]he creation of any obstruction…to the navigable capacity of any of the waters of the United States” (emphasis added).11 The Corps (and everyone else) interprets this phrase in the 1899 act to apply to those “navigable waters”—waters that are navigable in fact—discussed in the paragraph above. But what if Congress intended the same phrase in the Clean Water Act to mean something else? Are scientists or judges better suited to figure out what Congress intended?
When interpreting statutes like the Clean Water Act, courts are supposed to implement legislative “intent”: “We reemphasize that our role is to interpret the intent of Congress…not to make a freewheeling policy choice”.12 To ascertain Congressional intent, courts focus on the words of a statute and sometimes on its legislative history. None of the Chevron-deference commentators argues that scientists are better than judges at ascertaining legislative intent.
Consider an editorial written in 2006 by Donald Kennedy, editor-in-chief of Science and former President of Stanford University. In “What’s a Wetland, Anyhow” he harshly criticized the plurality opinion interpreting the phrase “waters of the United States” in the Rapanos case discussed below: “[Justice Antonin Scalia’s] search for commonplace labels as proxies for scientific definitions must have left his copy of Webster’s Dictionary dog-eared from overuse”.13 According to Dr. Kennedy, Justice Scalia “shows no awareness of what hydrologic investigations have demonstrated about the interconnectedness of ground and surface waters”.14 Dr. Kennedy, however, showed no awareness that the interconnectedness of waters does not help elucidate Congressional intent. In particular, he seems not to have understood Justice Scalia’s response to the type of argument Dr. Kennedy was making: “what possible linguistic usage would accept that whatever…affects waters of the United States is waters of the United States?”15 If someone as knowledgeable as Dr. Kennedy did not understand the legal issue in Rapanos, what hope is there that more average scientists will do better?
Levin and Downes argued that the end of Chevron deference will produce “an investment climate that is not more predictable and stable, but less”.16 For the Clean Water Act, however, the end of Chevron deference did indeed create more stability, not less. Chevron deference, in comparison, should create instability whenever an issue becomes politicized and the Presidency changes parties, as it did during the administrations of Presidents Barack Obama, Donald Trump, and Joseph Biden.
EPA’s Flip-Flopping Regulations
Uncertainty over the scope of the Clean Water Act goes back at least to 2006, when in Rapanos the Supreme Court split 4-1-4. Justice Scalia, writing for the plurality, concluded that (1) “waters of the United States” is not limited to navigable-in-fact waters, (2) when Congress said “waters” it did not intend to include wetlands, and (3) wetlands are regulated under the act only when there is “no clear demarcation” between the wetland and adjacent waters.17 Justice John Paul Stevens (who wrote the original Chevron decision), writing for the dissent, would have affirmed the Corps’ definition of “waters of the United States”, which was different from and much broader than its definition of “navigable waters” discussed above.18 Justice Anthony Kennedy, writing only for himself, argued in favor of a “significant nexus” test untethered either to the words of the Clean Water Act or to Chevron deference.19 In one of the curiosities of law, federal courts of appeals proceeded to treat Justice Kennedy’s opinion as binding law, as did the U.S Environmental Protection Agency (“EPA”) and the Corps, even though eight of the nine Supreme Court justices rejected it.
In 2015, the Obama Administration issued new regulations broadening the definition of “waters of the United States”.20 In 2020, the Trump Administration issued regulations narrowing that definition21, and in January 2023 the Biden Administration issued regulations broadening the definition but not returning it to the Obama definition.22 The 2015 rule expanded the previous long list of features to include many more specifics (such as pocosins, prairie potholes, and Western vernal pools) as well as waters “within 4,000 feet of the high tide line or ordinary high water mark of a water” that had a significant nexus to specified waters, and it included a long definition of “tributary”.23 The 2020 rule greatly shortened the list of features, removed the significant-nexus test, greatly expanded the list of exclusions, and redefined “tributary”.24 The January 2023 rule restored the significant-nexus test but left out much of the 2015 rule, including the specifics and the 4,000-feet provision, and cut back on the concept of “tributary” even when compared with the 2020 rule.25 These changes in the regulations radically expanded and contracted the acreage subject to regulation under the Clean Water Act.
No one seriously contends that this flip-flopping resulted from changes in scientific opinion rather than changes in political appointees. Had the Supreme Court applied Chevron deference, this flip-flopping would have continued during the next Trump Administration, and could have continued every time the Presidency changed parties. Instead, the Supreme Court created stability in 2023 when it adopted the conclusions of the Rapanos plurality in its second Sackett decision—without applying or even mentioning Chevron deference.26 Because the Supreme Court has now identified what the Clean Water Act regulates, government agencies can no longer issue regulations contradicting that determination.
More generally, Chevron deference never provided as much stability as its defenders suggest. When the flip-flopping Clean Water Act regulations were challenged, courts did not automatically apply Chevron deference and dismiss the challenges. Instead, courts found other ways to put regulations they did not like on hold. For a time, there was one set of “waters of the United States” regulations in effect in part of the nation, and other set in the other part. Judges are human beings, and when they care enough about an issue they will find a reason to reach the outcome they want.
In an important Clean Air Act case decided by the Supreme Court in 2007, for example, the Rapanos shoes were on the other feet. EPA had concluded that Congress did not want to regulate carbon dioxide (i.e. global warming) under the Clean Air Act. Justice Scalia, writing in dissent, argued that EPA’s decision was entitled to Chevron deference.27 But Justice Stevens, writing for a majority that included Justice Kennedy, blew by Chevron deference to reach the opposite conclusion.28
Judges who feel strongly about new regulations will find a way to “veto” them. But scientists are people too. When they care enough about an issue, they are not likely to behave better than judges. Judges who do not feel strongly, however, may very well defer to government agencies on questions such as whether “one population segment [is] ‘distinct’ from another” under the Endangered Species Act, as Justice Elena Kagan argued they should (in dissent in Loper Bright), especially when the agencies back up their interpretation with “geographic, genetic, morphological, [and] behavioral” data and “benefit from [their] ‘historical familiarity’ with how the term has covered the population segments of other species.”29
California’s Sliding-Scale Deference
Will courts behave differently without Chevron deference? Perhaps not very much, if California is an example. California uses a sliding scale of deference, in which it “consider[s] the agency’s specialized knowledge and expertise—especially relevant where the statute at issue is a complex, technical one—”and “afford[s] great weight” to the regulations “unless a provision is clearly unauthorized or erroneous under the statute.”30 And yet government agencies often prevail on questions of statutory interpretation, even when those interpretations might seem far-fetched. In a recent case, for example, a California court of appeal concluded that, under California’s Fish and Game Code, bees were fish.31 Ordinary people might think that when the California Legislature expanded the definition of the word “fish” in the Fish and Game Code to include invertebrates, it was referring to aquatic invertebrates, which would not include bees. But the court concluded otherwise.
The Chief Justice of the California Supreme Court, Tani Cantil-Sakauye, recognized that California would be mocked for this decision and for the California Supreme Court’s refusal to take the case. She acknowledged that ordinary people might think that “the Legislature could not possibly have intended such a result” but argued that “[t]hese kinds of seemingly illogical outcomes can in fact best capture the enacting Legislature’s intent in a variety of circumstances.”32 Decisions like these suggest that courts often rule in favor of government agencies even on counterintuitive interpretations.
How Judges May Inadvertently Decide Scientific Issues
Counterintuitive interpretations are far more frequent than an ordinary person might suppose. Before Sackett, the Corps routinely concluded that dry desert washes were “waters”, a practice ridiculed in Rapanos.33 According to the Corps, these dry desert washes have an “ordinary high water mark”—even though they ordinarily do not have any water, much less high water—which made them waters regulated by the Clean Water Act.34 Paradoxically, there should be more “waters” in the arid West than in the wet East, because the lack of vegetation in the desert makes it easy to see every little eroded cut and its “ordinary high water mark”. Before Sackett, therefore, the Clean Water Act regulated both “wet waters” and “dry waters”.
Although the Corps classified dry washes as waters, it did not classify them as wetlands because they lack wetland plants (among other things), which under the Corps’ guidance are a necessary requirement for wetlands. The Corps’ guidance involves the kind of technical assessment that calls for real scientific expertise. Neither Rapanos nor Sackett questioned the Corps’ guidance, and courts are not likely to get into the weeds, so to speak, of wetland delineation. Nevertheless, Rapanos and Sackett may create some friction with the guidance. The standard adopted in Sackett—wetlands are regulated when they are “indistinguishably part of a body of water that itself constitutes ‘waters’ under the [Clean Water Act]”35 —assumes that a wetland is wet. How else can it be indistinguishable from a water? The Supreme Court seems to have envisioned a setting where a thick stand of reeds hides the actual boundary between the water and the wetland. But many wetlands are usually dry, especially in the arid West.
In this way, judges may inadvertently decide cases in ways that affect scientific determinations. When statutes and government regulations call for counterintuitive results, judges are more likely to misunderstand all the consequences of their decisions. The Supreme Court would say that scientists can and should file amicus briefs informing courts of the consequences of a decision. But the goal of scientists who file amicus briefs is usually to influence the outcome, not to provide enlightenment. Scientists who want wetlands regulated under the Clean Water Act are not likely to tell a court that many wetlands look, to a non-specialist, just like dry land.
Judges Have One Advantage Over Agency Scientists
We can now return to the argument that scientists are in a better position to interpret technical statutes. What principle or method would scientists apply to ascertain whether bees are fish, whether dry washes are waters, or whether dry wetlands are navigable? These are not technical issues, and they cannot be resolved by measurements or experiments. Congress may have indeed intended, in some statutes, to leave technical determinations to scientists. But whenever judges identify this kind of Congressional intent, they are obligated to implement it.
Judges have one advantage over agency scientists: They provide some balance to the power of a government agency. Agencies tend to want to push the boundaries of a statute to get more control over what they are administering. More importantly, when a government agency is abusing its awesome power only a court can grant relief. The Sacketts, for example, found themselves in trouble in 2007 when they filled their 2/3-acre lot with dirt and rock.36 When EPA ordered them to restore the property—or else face $75,000 per day in penalties—they filed suit.37 The lower court concluded that the Sacketts could not get judicial relief unless and until EPA chose to enforce.38 In 2012, however, in the first Sackett decision, the Supreme Court unanimously held that the Sacketts could indeed get judicial relief.39 In his concurrence, Justice Samuel Alito expressed outrage at the government’s position, which “would have put the property rights of ordinary Americans entirely at the mercy of [EPA] employees.”40 The government could wait until “potential fines…have reached the millions”, treatment he found “unthinkable”.41 Justice Alito may very well have remembered his outrage in 2023, when he wrote the second Sackett opinion limiting “waters of the United States”.
The Problems With Chevron Deference
We’ve now identified three serious problems with Chevron deference. For a start, it’s too rigid. It requires courts to defer to agencies when its conditions are met, rather than allowing courts to defer when the agency really is best suited to make the decision. Second, it’s too vague. Justice Stevens applied Chevron deference in Rapanos, when he liked the agency decision, and rejected it in Massachusetts, when he did not like the agency decision—and Justice Scalia did the exact opposite. Finally, Chevron deference distorts the balance of power between the Legislative and Judicial Branches. Courts cannot provide a proper check on the excesses of administrative power when they must defer to an agency. Chevron deference is now gone, and we’re better off without it.
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1 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S. 837.
2 Loper Bright Enterprises v. Raimondo (2024) 144 S.Ct. 2244.
3 https://www.science.org/content/article/supreme-court-ruling-may-threaten-role-science-u-s-
rulemaking, emphasis added.
4 https://www.acsh.org/news/2024/10/29/chevron-doctrine-overturned-new-judicial-veto-
regulations-will-be-detrimental.
5 https://hbr.org/2024/09/the-end-of-the-chevron-doctrine-is-bad-for-business.
6 Clean Water Act §301(a), 33 USC §1311(a).
7 Clean Water Act §510(12), 33 USC §1362(12).
8 33 CFR §329.4 (section 10 of the Rivers and Harbors Act of 1899).
9 The Daniel Ball (1870) 77 U.S. 557, 563.
10 Clean Water Act §510(7), 33 USC §1362(7).
11 33 CFR §329.4 (section 10 of the Rivers and Harbors Act of 1899).
12 Malley v. Briggs (1986) 475 U.S. 335, 342.
13 https://www.science.org/doi/10.1126/science.1132934, referring to Rapanos v. U.S. (2006) 547
U.S. 715, 716.
14 Id.
15 Rapanos v. U.S. (2006) 547 U.S. 715, 755.
16 https://hbr.org/2024/09/the-end-of-the-chevron-doctrine-is-bad-for-business, internal quotation
marks omitted.
17 Rapanos at 730-735, 742.
18 Id. at 809-810.
19 Id. at 766-767, 782,
20 80 FR 37054.
21 85 FR 22250.
22 88 FR 3004.
23 80 FR 37114, 37123-37124.
24 85 FR 22338, 22340.
25 88 FR 3142-3144.
26 Sackett v. Environmental Protection Agency (2023) 598 U.S. 651. Tony Francois, a partner at
Briscoe Ivester & Bazel LLP, was counsel for the Sacketts.
27 Massachusetts v. E.P.A. (2007) 549 U.S. 497, 552–553.
28 Massachusetts v. E.P.A. at 528–531.
29 Loper Bright at 2296, 2298.
30 California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62
Cal.4th 369, 381, citing to Yamaha Corp. of America v. State Bd. of Equalization (1998) 19
Cal.4th 1, 5.
31 Almond Alliance of California v. Fish and Game Commission (2022) 79 Cal.App.5th 337, 360.
32 Almond Alliance at 366.
33 Rapanos at 727 and footnote 2.
34 See 33 CFR §328.3(c)(4) (defining “ordinary high water mark” without reference to whether
there is ordinarily water in the channel).
35 Sackett at 676.
36 Sackett v. E.P.A. (2012) 566 U.S. 120, 124.
37 Id. at 124-125.
38 Id.
39 Id. at 131.
40 Id. at 132.
41 Id.
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