Does the EPA Die Today?
The Supreme Court, it appears, is planning to gut most of America’s regulatory agencies in what could be the most consequential re-write of the protective “deep state” since the New Deal…
Republicans on the Supreme Court are, it appears, planning to gut most of America’s regulatory agencies, in what could be the most consequential re-write of the protective “deep state” since it was largely created during the New Deal in the 1930s.
The vehicle for this radical transformation of America is a case that will be argued today, in just a few hours, before the Court: Loper Bright Enterprises v Gina Raimondo.
If they pull it off, these six corrupt Republicans on the Court could destroy the ability of:
— the EPA to regulate pollutants,
— the USDA to keep our food supply safe,
— the FDA to oversee drugs going onto the market,
— OSHA to protect workers,
— the CPSC to keep dangerous toys and consumer products off the market,
— the FTC to regulate monopolies,
— the DOT to come up with highway and automobile safety standards,
— the ATF to regulate guns,
— the Interior Department to regulate drilling and mining on federal lands,
— the Forest Service to protect our woodlands and rivers,
— the FCC to protect us from internet predators,
— and the Department of Labor to protect workers’ rights.
Virtually the entirety of America’s ability to protect its citizens from corporate predation through regulation rests on what’s called the Chevron deference (more on that in a moment), which the Court appears prepared to overturn in today’s case.
Republican presidential candidate Vivek Ramaswamy says he wants to eliminate the Department of Education “on day one” if he’s elected president. If the Supreme Court has its way, he wouldn’t have to bother. It’ll become impotent.
Far-right conservatives and libertarians have been working for this destruction of agencies — the ultimate in deregulation — ever since the first regulatory agencies came into being with the 1906 creation of the Pure Food and Drugs Act, a response to Upton Sinclair’s bestselling horror story published that year (The Jungle) about American slaughterhouses and meat-packing operations.
Gutting these agencies is what Steve Bannon meant when Trump brought him into the White House and he said one of the main goals of that administration was to “deconstruct the administrative state.” If there’s any coherent explanation of the phrase “deep state” as used by Republicans, it’s our nation’s regulatory agencies.
The modern effort to destroy or at least neuter America’s protective agencies began when Ronald Reagan put Anne Gorsuch in charge of the Environmental Protection Agency (EPA).
She directed the agency to dial back restrictions on expansion of factories and other operations that were already polluting the atmosphere. That provoked a challenge to the Supreme Court, Natural Resources Defense Council, v. Gorsuch, where the Court overruled the Reagan administration.
Gorsuch nonetheless continued her efforts to gut the EPA. In her first year heading the agency, there was a 79 percent decline in enforcement cases, and a 69 percent drop in cases the EPA referred to the Justice Department for prosecution. She pushed a 25 percent cut in her own agency’s funding into Reagan’s first budget proposal.
It took Congress years to overturn her cuts to the Clean Air Act “on everything from automobiles to furniture manufacturers,” according to Phil Clapp, president of the National Environmental Trust.
She took a meataxe to President Carter’s renewable energy programs and “set solar back a decade” according to Clapp.
Gorsuch finally resigned her office to avoid prosecution for what Newsweek described as “a nasty scandal involving political manipulation, [Super]fund mismanagement, perjury, and destruction of subpoenaed documents, among other things.”
Her son, Neil Gorsuch, was devastated by his mother’s resignation. In her memoir Are You Tough Enough? she tells the story of how Neil confronted her when she resigned:
“Neil,” she wrote, “got very upset. Halfway through Georgetown prep and smart as a whip, Neil knew from the beginning the seriousness of my problems. He also had an unerring sense of fairness, as do so many people his age.
“‘You should never have resigned,’ he said firmly. ‘You didn’t do anything wrong. You only did what the president [Reagan] ordered. Why are you quitting? You raised me not to be a quitter. Why are you a quitter?’
“He was really upset,” she added.
Now, it appears, her son is preparing his revenge.
To get there, he and the other Republicans on the Court appear hell-bent-for-leather to turn regulatory agency rule-making upside-down, which will please the billionaires who give them luxury vacations, buy them homes, and pay them absurd speaking fees (and paid Roberts’ wife over $10 million).
Here’s how regulatory law — using the example of the EPA and CO2 — is supposed to work (in super-simplified form):
1. Congress passes a law that says, for example, that the Environmental Protection Agency should limit the damage that pollutants in the environment cause to the planet. Congress (the Constitution’s Article I branch of government) defines the broad goal of the legislation, but the Executive Branch (Article II, which encompasses the EPA and other regulatory agencies) has the responsibility to carry it out.
2. The EPA, part of that Executive Branch and answering both to the law and the President, then convenes panels of experts. They spend a year or more doing an exhaustive, deep dive into the science, coming up with dozens or even hundreds of suggestions to limit atmospheric CO2, ranging from rules on how much emission cars can expel to drilling and refining processes that may leak CO2 or methane (which degrades into CO2), etc.
3. The experts’ suggestions are then run past a panel of rule-making bureaucrats and hired-gun rule-making experts for the EPA to decide what the standards should be. They take into consideration the current abilities of industry and the costs versus the benefits of various rules, among other things.
4. After they’ve come up with those tentative regulations, they submit them for public review and hearings. When that process is done and a consensus is achieved, they make them into official EPA rules, publish them, enforce them, and the CO2 emissions begin to drop.
This is a process that simply comports with common sense, as the Supreme Court ruled in 1984 when they established what’s called the “Chevron deference” to legitimize and defend our regulatory agencies.
That doctrine — established by the Supreme Court and reflecting a century of the will of Congress and presidents of both parties who signed regulatory agencies into existence — says that when a regulatory agency does its due diligence and determines reasonable rules for a substance or behavior they have the legal authority to regulate, the courts should “defer” to the judgment of the agency.
Congress passes laws that empower regulatory agencies to solve problems, the agencies figure out how to do that and put the rules into place, and the solutions get enforced by the agencies. And when somebody sues to overturn the rules, if the courts determine they were arrived at through a reasonable process without corruption, those rules stand.
Then came a group of rightwing Supreme Court justices — including Neil Gorsuch — who overturned rules made by the EPA about CO2 emissions from power plants in their June, 2022 West Virginia v EPA decision. This set up today’s arguments.
Their rationale was that because the legislation that created the EPA doesn’t specifically mention “regulating CO2,” the agency lacks that power. And now it has lost that power, the result of that West Virginia v EPA decision a year-and-a-half ago.
The coal-, oil-, and natural-gas-fired power plant industry has been popping champagne corks for almost two years now, as CO2 levels continue to increase along with the temperature of our planet.
In addition to Gorsuch, the Court’s decision-makers in West Virginia v EPA included Amy Coney Barrett whose father was a lawyer for Shell Oil for decades, and John Roberts, Samuel Alito, and Brett Kavanaugh who are all on the Court in part because of support from a network funded by fossil fuel billionaires and their industry (among others).
And, of course, Clarence “on the take” Thomas, who supported the Chevron deference 15 years ago but in 2020 wrote:
“Chevron compels judges to abdicate the judicial power without constitutional sanction. … Chevron also gives federal agencies unconstitutional power.”
Giving us a clue to how this will probably go down, all six Republicans on the Court voted to gut the EPA’s ability to regulate CO2; all 3 Democratic nominees opposed the decision.
Justice Elena Kagan wrote that the Court:
“[D]oes not have a clue about how to address climate change...yet it appoints itself, instead of congress or the expert agency...the decision-maker on climate policy. I cannot think of many things more frightening."
Their ruling was, essentially, that all of that research into the specifics of anticipated regulations — all those hundreds of scientists, millions of public comments, and hundreds of thousands of science-hours invested in understanding problems and coming up with workable solutions — must be done by Congress rather than administrative regulatory agencies.
As if Congress had the time and staff. As if Congress was stocked with scientific experts, a much larger budget, and had millions of hours a year for hearings. As if Republicans in the pockets of fossil fuel billionaires wouldn’t block any congressional action even if it did.
Gorsuch, et al, succeeded in the West Virginia v EPA case, but it was narrowly focused on CO2.
In the case being argued today, however, the Court is explicitly preparing to expand that victory by blowing the entire Chevron deference out of the water, thus ending or severely limiting most protective government regulations in America and opening the door to court challenges to every regulatory agency listed at the open of this article (and more).
They’re saying, essentially, that the EPA (and any other regulatory agency) can’t do all the steps listed above: instead, that detailed and time-consuming analysis of a problem, developing specific solutions, and writing specific rules has to be done, they say, by Congress itself.
Specifically, this case the Court is hearing today — Loper Bright Enterprises v Gina Raimondo — has to do with whether or not fishermen should have to pay fees that help cover the cost of the agency that regulates them.
But when you look at the briefs being filed by billionaire- and corporate-funded rightwing groups like the CATO Institute, Competitive Enterprise Institute, Pacific Legal Foundation, Independent Women’s Law Center, Southeastern Legal Foundation, Christian Employer’s Alliance, National Right to Work Legal Defense Foundation, Advancing American Freedom, and the Buckeye Institute, you find the real goal of this litigation.
CATO, for example, writes:
“[I]t is now clear that Chevron deference is unconstitutional and ahistorical. Over the past forty years and counting, it has wreaked havoc in the lower courts upon people and businesses.”
Competitive Enterprise writes of the National Marine Fisheries Service:
“The agency lacks inherent legislative power: it may only use the powers that Congress gives it. … Only Congress can decide if a power given to it by the Constitution should be exercised. … The agency’s attempt to exercise this never- assigned power not only goes beyond the authority Congress gave it; it goes beyond any authority that Congress could legitimately give it.”
Pacific Legal Foundation cuts right to the heart of the ability of agencies to regulate anything, saying the case turns on:
“Whether the Court should overrule Chevron…”
The Buckeye Institute writes they’re submitting their amicus brief to the Court:
“[T]o speak on behalf of the thousands of small businesses concerned with agency aggrandizement of power through Chevron deference…”
On the side of you, me, and most other average Americans who just want clean air and water, safe drugs and cars, and reasonable protections in the workplace, the Biden administration has stepped up.
In defense of America’s regulatory agencies, the federal government’s brief filed with the Court lays out what’s at stake:
“Petitioners bear an especially heavy burden in asking this Court to overrule Chevron, which stands at the head of ‘a long line of precedents’ reaching back decades. The Court in Chevron described its approach not as an innovation, but as the application of “well-settled principles” concerning the respective roles of agencies and courts in resolving statutory ambiguities.
“Federal courts have invoked Chevron in thousands of reported decisions, and Congress has repeatedly legislated against its backdrop. Regulated entities and others routinely rely on agency interpretations that courts have upheld under the Chevron framework.
“By centralizing interpretive decisions in agencies supervised by the President, Chevron also promotes political accountability, national uniformity and predictability, and it respects the expertise agencies can bring to bear in ad- ministering complex statutory schemes.
“Petitioners offer no persuasive ‘special justification’ for overruling Chevron, let alone the type of ‘particularly special justification’ that would be required to overturn such a deeply ingrained part of administrative law.
“Petitioners principally contend that Chevron improperly transfers the authority to ‘say what the law is’ from the Judicial Branch to the Executive Branch. But this Court has explained that the Chevron framework rests on a presumption that ‘a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.’ (emphasis mine)
This could be the big enchilada, the case that fundamentally transforms America and American government from a modern, well-functioning nation into a third-world backwater where massive corporations and the billionaires they made rich, instead of We the People through elected representatives, set the rules. It’s corporate America’s dream.
It could fulfill Bannon’s and Trump’s promise to dismantle — or at least eviscerate — most of America’s regulatory agencies, leaving us all subject to the tender mercies of the country’s CEOs.
Several groups have called on Gorsuch to recuse himself from the case because one of his friends and patrons is a billionaire who’ll profit greatly from the destruction of our regulatory agencies. Not to mention fulfilling his mother’s legacy.
So far, though, he doesn’t seem to care about the apparent conflict of interest: the Republicans on this Court seem incapable of feeling shame or behaving ethically.
Keep an eye on this case and pay attention to the reporting on today’s arguments before the Court. Knowing what’s coming down the road — and why, and from whom — may well be vital for those of us concerned with the future of our country and our children’s safety.
Not what I wanted to be the first thing I read this morning. Yet not surprising, just another soul-destroying development in the dismantling of our country by the morbidly rich. It would be nice we’re SCOTUS to do the right thing, Thomas. It will, of course--the far right thing. Unfortunately, not enough people understand just how important and pervasive these agencies are. I remember still my great satisfaction in casting my absentee ballot voting for the California Coastal Act when I was a student at Harvard Law School. It may be that blue states will, until their sovereignty is destroyed by SCOTUS (ironic, that), have to try to fill the gap for their citizens as best they can. But that may well prove too expensive, and our taxes and regulatory environment are already costing us people and businesses. Watching this country March backwards since Reagan, and much faster since 2016, has been the most depressing thing in my life, even more than the health problems that forced me to retire and become a virtual recluse over 20 years ago.
I spent eight happy hours with our impish, adorable, incredibly curious and energetic kindergarten grandson yesterday. I know now I will have to leave him a letter to open after he turns 18 apologizing for the dystopian country he will be facing because not enough of us fought hard enough against the malignant plutocrats and the ignorati who follow them. If it were not a death sentence for me, I’d start drinking again, feeling utterly powerless as a feeble 75-year old who spent his professional life as a lawyer with great respect for the law, and his entire life as a quietly patriotic American, son of a career Navy officer who received a Purple Heart for injuries he suffered when his destroyer was shelled by the Japanese in the Battle of Leyte Gulf. Both sentiments dead now, as we cease to be a nation of laws and bend the arc of history backward, against the belief so strongly held by Dr. Martin Luther King, Jr.
This used to be my subject. Administrative Law.
I've written about this many times. In theory Congress gave us a mini Constitution in 1948 when it passed the Administrative Procedure Act., APA, which in part sets out rules for agencies to write regulations
Unfortunately, starting in the 1990s organizations like the Heritage Foundation and the Federalist Society began to oppose "the administrative state." Chevron was a case that provided that where there was some question about the meaning of a statute, the Supreme Court would defer to the agency interpretation of its own regulations.
Judge Rogers in part addressed the APA. "Under the APA’s deferential standard, the court upholds agency action unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Chevron , 1984 was not the first time that the Supreme Court expressed agency deference. In Skidmore Swift & Co., 323 U.S. 134 (1944), it said that an administrative agency's interpretative rules deserve deference according to their persuasiveness. In Skidmore there was no issue whether there were different interpretations from the language of the regulation.
From my perspective, an agency makes its best case when it holds hearings and there are facts that show a need for regulation.
What has been happening in administrative law, is there is a theory in right wing circles that because administrative law was not mentioned by the Constitution, all of it is unconstitutional. For example in
"Is administrative law unlawful?" Philip Hamburger, Professor of Law at Columbia argues that while the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society. 2014.
In National Association of Business v. DOL (OSHA), 2022, SCOTUS stopped an Occupational Safety and Health Administration rule for larger businesses to either require vaccines or have a masking and testing policy. And in a 5-4 order, the justices allowed a Centers for Medicare and Medicaid Services vaccination mandate for health care workers at federally funded health care facilities. IMHO had Biden held hearings and made factual findings under APA procedures, the outcome could have been different.
In Biden v. Nebraska, 2023. the Supreme Court ruled that the student-debt cancellation plan was an impermissible interpretation of a provision in the post–9/11 HEROES Act that allows the secretary of education to “waive or modify” loan terms in certain emergencies. In finding the secretary’s interpretation of that limiting language too much of a stretch, the Court recognized that executive-branch officials can only enforce duly enacted congressional legislation rather than taking action that goes beyond those parameters to make new law. Chief Justice John Roberts’s majority opinion also cited a backup argument, known as the “major questions doctrine”—holding that the Court will not assume that Congress has, without explicitly saying so, delegated the power to regulate significant economic or social matters.
Several Justices have criticized or sought to limit Chevron deference in recent years. In 2015, Thomas wrote that Chevron “wrests from Courts the ultimate interpretative authority to ‘say what the law is’” and instead gives it to the executive branch. Gorsuch has written that “the aggressive reading of Chevron has more or less fallen into desuetude—the government rarely invokes it, and courts even more rarely rely upon it,” but “the whole project deserves a tombstone no one can miss.”
Roberts has embraced the “major questions” limitation on Chevron, declining to accept an implicit delegation of authority on any “question of deep economic and political significance that is central to [the] statutory scheme” and assuming instead that “had Congress wished to assign that question to an agency, it surely would have done so expressly.” Justice Samuel Alito has observed that Chevron resulted in “a massive shift of lawmaking from the elected representatives of the people to unelected bureaucrats.”[Justice Brett Kavanaugh has also written in favor of “preserv[ing] the separation of powers” and “vital check[s] on expansive and aggressive assertions of executive authority.” Elsewhere, he has written that Chevron’s command that reviewing courts “must exhaust all the traditional tools of construction before concluding that an agency rule is ambiguous” means that Chevron, if properly applied, should be relatively inconsequential: “the court will almost always reach a conclusion about the best interpretation.”
These justices invoke the nondelegation doctrine—the foundational claim that Congress can’t relinquish its own lawmaking power. In this case, they have to admit that delegation was effectuated.
However, I read the government's brief and it does not lay out how rulemaking was effectuated. The reason why deference is granted is that the industry had a due process opportunity to be heard at the agency level and failed to make it. The directive is clear. This should be more Skidmore than Chevron!
But as my 'ol pappy used to say, sometimes justice takes a kick in the ass sometimes.