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Looming Supreme Court decision could curtail federal agency powers

The Supreme Court is soon set to hand down a ruling that could strip federal agencies of their power and expand judges’ authority.

The decision, which could be made as soon as this week, could limit the agency’s power to issue any number of consumer, workplace and environmental safeguards.

During oral arguments, the court’s conservative majority appeared intent on at least curtailing decades of precedent that directs judges to defer to agency interpretations when the law is ambiguous.

In practice, the Chevron deference, named after the 1984 decision in Chevron USA v. Natural Resources Defense Council, has given both Democratic and Republican administrations some latitude in making decisions. If the Court decides to curtail it or reject it altogether, justices could be free to substitute their own interpretation of the law in more cases and may be more likely to strike down existing agency rules.

“I think the court is likely to narrow this principle and provide a long list of reasons why Chevron deference might not apply,” said Emily Hammond, a law professor at George Washington University.

But Hammond added, “If the court were to strike down this principle, it raises a lot of questions about what kind of litigation will occur. In particular, I predict that we may see a number of industry groups challenging the environmental health and safety regulations that have been upheld under Chevron.”

Such a ruling “would mean that in the short term, we would lose some of our protections because the current makeup of the federal courts is overwhelmingly conservative,” said James Goodwin, policy director at the Center for Progressive Reform.

“If I’m a regular citizen and I’m worried about PFAS in my drinking water or climate change ruining my children’s future, is my bank going to try to rip me off with new fees … a government agency can’t handle that,” Goodwin said.

Chevron’s deference was initially born out of a defense of the Reagan administration’s actions, established by Supreme Court decisions upholding interpretations of the Clean Air Act issued under then-Environmental Protection Agency Administrator Anne Gorsuch, mother of current Supreme Court Justice Neil Gorsuch.

But 40 years later, the younger Gorsuch would likely be part of the majority that overturns the bill. In recent years, conservative legal scholars have increasingly opposed the Chevron bill, arguing that it gives too much power to federal agencies to pass sweeping reforms.

“If you sue a government entity or a government entity sue you, there should be a level playing field,” said Mark Chenoweth, president of the New Civil Liberties Union, a conservative legal group.

“If you’re right about what the law means, the judge should be free to side with you,” said Chenoweth, whose group represents one of the plaintiffs.

If the court doesn’t uphold current precedent, it’s unclear whether it will simply restrict Chevron or issue an entirely new test.

If the Court were to decide to completely overturn Chevron, one possible alternative to the long-standing principle is the Skidmore doctrine, which states that courts should give deference to agency arguments only if the arguments are persuasive.

Chenoweth said his group would view the Skidmore ruling as a victory.

“Skidmore has no respect, so if they stop giving you respect, that’s a home run,” he said.

It’s hard to predict what specific federal actions would be at risk if the Chevron ruling is overturned, but some left-leaning groups are optimistic that the Biden administration is writing rules with a Chevron-free future in mind.

“The regulations that we were concerned about going to the Supreme Court were written without recourse to the Chevron principles and I believe they were justified,” Ian Fain, senior counsel at the Natural Resources Defense Council, told reporters earlier this month.

But he also said the Supreme Court SeparCases under consideration — Relaxes the statute of limitations that determines when rules must be challenged.

“Looking back, there are thousands of lawsuits and government actions that were upheld under Chevron’s deference. One of the questions this case raises is what happens to those old lawsuits,” Fain said.

The specific cases before the Court are Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce, which challenged Chevron over its requirement that fishing vessels pay for on-board monitors.