Is the rule of law a threat to environmental protection?

neil_gorsuch_and_donald_trumpJudge Neil Gorsuch, whom the President nominated for the Supreme Court last week, has been an outspoken critic of the immense power wielded by unelected bureaucrats. In an opinion penned last year, Judge Gorsuch bluntly called for the elimination of Chevron deference—the doctrine requiring federal courts to generally defer to an agency’s statutory interpretation.

Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty.  Of course, some role remains for judges even under Chevron. At Chevron step one, judges decide whether the statute is “ambiguous,” and at step two they decide whether the agency’s view is “reasonable.”  But where in all this does a court interpret the law and say what it is?  When does a court independently decide what the statute means and whether it has or has not vested a legal right in a person?  Where Chevron applies that job seems to have gone extinct.

Although this independence of thought has earned Judge Gorsuch praise from scholars on both sides of the aisle, many environmental groups responded with the usual vituperativeness. The Sierra Club proclaimed him “unfit” because of his “dangerous views.” Earthjustice called him “an extreme and unacceptable choice.” Who knew environmentalists were so opposed to the separation of powers?

Why are environmentalists against Judge Gorsuch? What difference should it make to them whether policy decisions are made by politically accountable officials or unelected bureaucrats? The cynical answer would be that they wield greater power in agencies than their political influence would suggest. There’s a revolving door between the agencies and the environmental groups.

At Legal Planet, Ann Carlson argues that overruling Chevron would make it more difficult for agencies to protect the environment.

The big fear many observers have if Chevron is overturned is that it would make agency rule making even more difficult, more uncertain and more vulnerable to legal challenge. That would be bad news for environmental protection.

There is an element of truth to this. Surveys show that agencies adopt more aggressive interpretations of the statutes they administer when they’re confident those interpretations will receive deference. So it’s possible that Chevron will encourage agencies to stretch their powers farther than the statute permits and that a reviewing court will allow agencies to do so.

But at what cost? We have no effective check on bureaucratic overreach, other than the courts. If an off-the-rails agency enacts aggressive environmental regulations—which can be reversed after a switch in administration—is that better than allowing the political branches to enact a more permanent, balanced approach?

Ultimately, what would happen without Chevron is an empirical question. One indication is what happened before it was decided. That evidence, however, undermines the environmental critique. Prior to Chevron, courts faithfully interpreted statutes: upholding agency decisions when consistent with Congress’ design and overturning them otherwise.

Sometimes, this meant that courts forced agencies to be more aggressive than they intended. For instance, TVA v. Hill—an Endangered Species Act case that preceded Chevron—declared that statute requires agencies to protect species “whatever the cost.” If the Court had deferred to the agency, it would have rejected environmental protection. Similarly, Massachusetts v. E.P.A. held that greenhouse gases are regulable under the Clean Air Act: a result that could only be reached by rejecting deference to the agency.

I don’t believe that overruling Chevron would cause the sky to fall. We’d continue to have environmental protection, only more of it would come from Congress and less of it from unelected, unaccountable bureaucrats. In this regard, I entirely agree with this from Judge Gorsuch’s opinion:

[W]hat would happen in a world without Chevron?  If this goliath of modern administrative law were to fall?  Surely Congress could and would continue to pass statutes for executive agencies to enforce.  And just as surely agencies could and would continue to offer guidance on how they intend to enforce those statutes.  The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is. . . . We managed to live with the administrative state before Chevron.  We could do it again.  Put simply, it seems to me that in a world without Chevron very little would change — except perhaps the most important things.

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