‘Chevron deference’ should still be the standard

At the heart of the “Chevron deference” finding are three core issues:

1. The separation of powers;
2. The question of how executive power is authorized by law;
3. The right of the People to remain free from harm.

A fourth critical question emerges from these three core issues, key provisions of the Constitution of the United States, and the Government’s interested in minimizing harm to the public and minimizing cost and risk associated with delayed preventative action. It is reasonable that to achieve the most efficient implementation of a law barring environmental pollution, the Executive Branch have the ability to enact regulations that limit foreseeable harm.

The fourth critical question, then, is to what extent can the Executive Branch use its existing authority to act on a new law, to prevent foreseeable harm?

We know air pollution can only be prevented or contained; in the absence of industry standards reducing pollution, it is necessary to mandate elimination or containment of pollution. Air pollution kills an estimated 12 million people around the world, every year.

The Supreme Court’s majority opinion finding that Courts should be authorized to review and strike down a far broader range of regulations than previously allowed ignores the genuine combined effect of these four questions, and it achieves that by ignoring the rights and interests of the general public. By ignoring public interest, it treats the case as a mere contest of wills between the Executive Branch and private industry.

This elimination of stakeholder interest is forbidden by the Constitution, due to the First Amendment prohibition on abiding the right to seek redress and the 14th Amendment guarantee of equal protection. It is improper to not consider the interests of stakeholders, who must live with the consequences of a particular decision, when determining whether the law is treating all parties fairly and reasonably.

The 6–3 majority that joined this opinion of the Supreme Court actually ignored key facts of the case at hand to issue a finding that is based almost entirely on their own preferred philosophy regarding regulatory authority. As reported in an op-ed in Scientific American:

The Court skipped the fish questions entirely. Instead the 6–3 majority dismantled a 40-year precedent of deferring to science and expertise in interpreting laws intended to protect human health, keep consumers safe and preserve the planet.

So, with all of that in mind, let’s look for a moment at what Chevron deference really meant. The awkward phase simply references the case where the legal doctrine of deference to scientific expertise emerged. “Chevron deference”, in this way, is like “Miranda rights”.

The specific meaning of deference in this case was that lawmakers should not craft laws that would predetermine precisely how pollution is limited, or to what extent, but that the Courts agreed it would be most appropriate if Executive Branch consideration of science and expertise, along with stakeholder testimony, shape regulatory action. Deference extended to the courts’ authority to second-guess science-based decisions, or judgments by Executive agencies regarding how to interpret gaps or ambiguities in legislative text.

The Chevron deference was not a surrender of lawful authority; it was a reinforcement of the separation of powers, and recognized that neither legislatures nor courts were properly funded or equipped to review the latest, best available science, in an ongoing way, to shape regulations for maximum effectiveness and justice. In the absence of this standard, a critical problem emerges: since legislatures will have no additional funding, staffing, or resources than they did before this new opinion of the Court, it will be left to the Judiciary to make these determinations.

• Remember: the First Amendment prohibits abrading the right of the people to seek redress for grievances.
• At both the state level and the federal level, a lack of effective pollution prevention regulation will mean more harm, more grievance, and more citizen action (through litigation, protest, and advocacy) to seek redress and enact laws that will have the desired preventive effect.
• The courts will also not have additional funding or resources to be able to establish comprehensive expertise in critical areas related to regulation — whether for fairness or administrative efficiency.
• That means more cases will begin to filter into the courts, without necessarily achieving ready access to proper, fair, evidence-based adjudication of complex claims.

This will naturally clog the courts and delay preventative measures to control pollution and protect human health and safety or to prevent dangerous climate change and related impacts. As unprecedented and worsening impacts of climate change continue to pile up, the costs of removing the Chevron deference standard could be overwhelming — for the courts, for the rights of individuals and communities, and for the fiscal and economic stability of the United States.

The Court missed an important opportunity in this case. Instead of issuing an ideological ruling that benefits polluters and extractive industries, the Court could have updated previous precedent to be more instructive in a world of rapidly accelerating climate change. It could have re-affirmed the separation of powers and upheld the most fundamental and unalienable Constitutional right — to personal and collective safety.

If it had done so, the Loper Bright ruling might have upheld the Chevron deference, while adding important constraints to all three branches of government:

• The Legislature should issue laws that will protect human health and safety, while recognizing that professional scientists will have to reach consensus on what constitutes safety vs. danger.
• The Executive agencies will either employ or consult the relevant professional scientists, ensuring always to keep critical active regulations up to date and aligned with the best available science.
• The Judiciary, along with the Legislature and the Executive, should ensure that on issues of safety or health, science — not ideology — should be the guiding light for protection of the right to remain free from harm.

Such a ruling could also have found that the pecuniary interests of a particular commercial fishing operation — or other extractive commercial interest — do not, and cannot, outweigh the right to personal and collective safety of the very people to whom they would sell their product. None of this would mean that no regulation is reviewable; it would simply mean that the Court recognizes the common-sense standard already running through the Bill of Rights and other provisions of the Constitution. That is:

The right to remain free from harm, and to choose for oneself, cannot be traded away for the mere promotion of the self-interest of a few. Power must be accountable; actors whose actions affect third parties might be liable under the law for redress; all three branches have a common mission imperative to ensure necessary harm, waste, and cost is not set in motion, just to let some people profit from something most people could not justify doing.

If all of this seems speculative and abstract, consider this more concrete effect of the decision: Because the Court has eliminated the Chevron deference standard, it will now be possible for polluters to challenge regulations that actively prevent them from poisoning and ruining the lives of innocent Americans. Yes, those victims will have access to litigation, but the harm is set in motion by this decision, and the Justices have not provided a remedy to prevent that.

Two final points, regarding the perils of doing away with this critical protection of the separation of powers:

1. Chevron deference did not prevent the courts from reviewing regulatory measures, the authority on which they were founded, or the evidence used to set limits or control commercial activities;
2. By reducing the deference to science and evidence in regulatory action based on legislation, the Court has reduced Americans’ timely access to the benefits of best-available scientific knowledge.

There is no good reason for doing this, and it poses Constitutional complications, beyond Redress and Equal Protection. If the Court wants to uphold the Constitution and favor the rule of law over the whims of the powerful, they have gotten it wrong in this case, and cut back the safeguards that would protect Americans from unaccountable harm.