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This story originally appeared on Slate and is part of the Climate Desk collaboration.
US environmental law is a relatively young discipline. The Environmental Protection Agency is a little more than 50 years old, and the Clean Air and Clean Water acts—legislation we today see as bedrocks of public health and environmental safeguards—were passed in 1963 and 1973, respectively. When the case that would become Chevron v. Natural Resources Defense Council was filed in the early 1980s, the EPA was just beginning to pump out rules that would have major economic consequences for business and industry.
In its decision last week overturning Chevron deference—a crucial legal precedent that gives federal agencies the ability to interpret laws that are otherwise vague or ambiguous—the Supreme Court has taken the future of an incalculable number of regulations on public health, clean water, and clean air out of the hands of scientists for organizations like the EPA and passed it along to nonexpert judges who will hear challenges to these regulations in court.
“Anybody who doesn’t like a federal-agency regulation can now bring it before a court,” said Jillian Blanchard, a director at Lawyers for Good Government. “It’s scary.”
Overturning Chevron is just a cog in the larger plan to dismantle the administrative state and environmental law as we know it—and the ultraconservative forces and fossil fuel defenders, like the Koch brothers, behind it are only getting started.
Ironically, the Chevron decision was initially seen as a win for polluting industries. The Clean Air Act mandates that new stationary sources of pollution go through an agency review, but it fails to define what exactly a source is. In the early 1980s, Reagan’s EPA—headed by Anne Gorsuch, the mother of current Supreme Court Justice Neil Gorsuch—expanded the definition of source to mean an entire factory or complex. This significantly cut down on red tape for polluting industries, which previously had to go through government approval processes to add individual smokestacks to larger facilities. The National Resources Defense Council sued the EPA and won; Chevron interfered and took the case to the Supreme Court, where the justices ruled 8–0 to reverse the lower court’s decision and handed a victory to the oil giant—and the EPA.
The doctrine established by the case was also seen as a good tool for corporate life. Industries rely on consistent federal guidelines to build their business models. Taking the specifics of regulations out of the courts and putting them into the hands of agencies provided stability for companies that needed to plan ahead.
“As the deference doctrine became known law, everybody just came to rely on it,” Blanchard said. “They may not like an agency’s decision on something, but they were able to rely on the fact, like, OK, at least we can trust the process.”
Subsequent administrations passed much stronger environmental regulations using the Chevron doctrine as a basis. The EPA, especially under Democratic presidents, increasingly came to be seen as an onerous, antibusiness body by industrial interests and ultraconservative figureheads alike. Even Antonin Scalia, who for most of his career was a champion of Chevron, showed signs of tiring of the doctrine in his later years.
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In 1989 climate scientist James Hansen sounded the alarm about climate change in front of Congress. In the years that immediately followed, climate science was accepted by both Democratic and Republican politicians, and George H. W. Bush expressed support for climate change policies. The fossil fuel industry panicked and began organizing to combat what it saw as an oncoming wave of regulation. In the decades since, the industry and its allies have invested in politicians, scientists, and cultural figures to publicly sow doubt about climate science, transforming what should have been a straightforward policy problem into a cultural and political war that is still playing out today. Charles and David Koch, who had built up a massive chemical, industrial, and fossil fuel empire, were some of the most important funders of this campaign, almost single-handedly ensuring that climate action stalled for decades in the US. (It’s no accident that it took until 2022 for the country to pass any sort of climate change legislation.)
Those interested in casting doubt on science and clearing out the administrative bedrocks of environmental law had a valuable ally in Leonard Leo, the head of the Federalist Society and one of the most influential figures in stacking the Supreme Court with ultraconservative judges. Although much of Leo’s massive funding to remake the courts comes from dark money, the Kochs have played a public and private role in supporting his efforts. In 2016 Leo coordinated a $10 million donation from the Kochs to George Mason University’s Antonin Scalia Law School, for which Justices Gorsuch, Clarence Thomas, and Brett Kavanaugh have all served as faculty; Thomas’ long-standing appearances at Koch donor events was also facilitated by Leo, as ProPublica reported last year.
“This whole thing has been funded by the Koch brothers,” Blanchard said.
The Koch-funded, Leo-facilitated assault on the administrative state hasn’t been isolated to Chevron. On Monday, the court ruled along familiar 6–3 party lines in Corner Post Inc. v. Board of Governors of the Federal Reserve System, in a decision that creates new opportunities for companies to attack federal regulations years after they’re put in place.
“After today, even the most well-settled agency regulations can be placed on the chopping block,” Justice Ketanji Brown Jackson wrote in her dissent. “Any established government regulation about any issue—say, workplace safety, toxic waste, or consumer protection—can now be attacked by any new regulated entity within six years of the entity’s formation.”
A day before the Loper Bright decision last week, the court ruled, again 6–3, in a decision against the Securities and Exchange Commission that could potentially force federal agencies to hold jury trials as a regular part of enforcement. Last year, the EPA issued more than 950 compliance orders, fining a wide variety of companies, industrial plants, and other entities for not being in line with federal standards. Pat Parenteau, an emeritus professor at Vermont Law School who served as regional counsel in the EPA’s New England office, said that administrative orders are the agency’s “bread and butter.”
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“If you have to go to the DOJ to file a lawsuit [for the 900-plus administrative orders], the enforcement program is going to collapse,” he said.
The elimination of Chevron and other guardrails for administrative law doesn’t mean that all environmental rules will disappear tomorrow. The Supreme Court hasn’t used Chevron in a decision in years. Last year, in Sackett v. EPA, the majority justices sidestepped the doctrine altogether in their decision, which effectively wiped out federal protections for as many as half the nation’s wetlands—a preview of the type of decisions that can now be made without Chevron in play.
Lower courts have still consistently relied on Chevron and made decisions using the doctrine that, one analysis found, overwhelmingly favored federal agencies. Now, facing incapacitated enforcement mechanisms and a wide-open field to challenge federal regulations, with a host of conservative judges across the country ready to hear lawsuits, deep-pocketed polluters have little in the way of taking swings at the remaining laws holding them back.
There are a dizzying amount of opportunities ahead of them—and untold effects on the American public when environmental protections are dismantled. Agencies could begin to act more cautiously for fear of lawsuits, a trend that, as Blanchard’s organization points out, could have devastating effects during a crisis like the current avian flu epidemic, when entities like the Department of Agriculture and Centers for Disease Control and Prevention need to work together. The Supreme Court has already agreed to hear a case next year reconsidering denied approvals for a crude oil railway, and its decision could do away with how the government calculates potential fossil fuel emissions associated with infrastructure projects.
“We have by no means seen the end of the assault on the administrative state—which is environmental law,” said Parenteau. “Environmental law is the administrative state.”
Parenteau said that although the Clean Air and Clean Water acts are likely to be the first targets of proponents of Chevron’s demise, conservative towns and cities could eventually decide to take new federal regulations intended to protect the public from “forever chemicals,” or PFAS, to court. “The costs of monitoring and testing for those PFAS chemicals in the parts per trillion is going to be exorbitant,” he said. “My guess is there’s going to be a real pushback as these rules start to take effect.”
For Leo’s part, he has already signaled where he intends to turn next. In recent months, his network has launched public and private campaigns to persuade the Supreme Court to take up a case involving the city and county of Honolulu’s suit against a handful of fossil fuel companies, one of dozens of such climate suits being launched across the country. If the conservative court decides to hear the case, it’s likely to deal a blow to one of the newest strategies to hold Big Oil accountable—and one of the last remaining lines of defense for a nation that’s rapidly losing its ability to make polluters pay to clean up their messes.
