Over the last two years, several court decisions weakened the ability of the Environmental Protection Agency (EPA) to tackle pollution and climate change [1]. It dates back to the 2022 West Virginia vs EPA case, when courts applied the major questions doctrine (MQD), which ruled that the EPA did not have the authority to regulate emissions to promote lower-emitting electricity production. Last June, the Supreme Court increased the power of the MQD, as it overturned the Chevron doctrine (CD), making it harder for government agencies to tackle issues such as pollution and climate change [1, 2]. This is just the latest in a series of anti-environmental court decisions, as will be discussed later in this article [1].
What Is The Chevron Doctrine?
A court case in 1984 established the CD: Chevron U.S.A., Inc v. Natural Resources Defense Council, Inc. The CD became a legal test for courts to determine whether to follow an agency’s interpretation of a statute. The first question became whether Congress’s intent in the statute was clear. If not, the court would follow the agency if its interpretation was reasonable [3]. As a landmark case, the CD has been used extensively over the past 40 years, with over 18,000 judicial opinions, an average of 450 times a year. The CD is not only used in environmental regulation, but also in a number of other sectors: healthcare, housing, finances, taxes, telecommunications, consumer protection, transportation, energy and education [4]. Under the CD, policy decisions could be made by experts, those who know their field best, rather than politically driven judges, as will now be the case [5].
Who Is Behind It?
The overturning of the CD did not come out of the blue, nor was it the first attempt to do so, as the same lawyer had already tried to overturn it several years ago [5, 6]. Overturning the CD is also part of a wider strategy by conservatives and industrialists to reduce the power of federal agencies, dubbed the ‘war on the administrative state’. A case that often comes up when discussing this administrative war is Koch [5]. The Koch case, which overturned the CD, involved fishermen seeking to remove the obligation to pay a fee to scientists who observed their activities to prevent overfishing and other law violations [7]. The fishermen were supported by pro bono lawyers from Cause of Action, a firm that, as revealed in court documents, works for Americans for Prosperity, a conservative group funded by Koch [8].
The Koch network has been coordinating an attack on federal agencies for years. Since the supermajority of conservative judges on the Supreme Court, they have been, to use their own words, “doubling down on this strategy”. Koch Industries, the second-largest privately held company in the US, consists of several energy and chemical companies that seek to profit from reduced environmental regulations and worker protections. Through legal action and donations, they seek to exert their influence to undermine government regulations [9]. They hide their intentions behind concerns for the working class, as in this case. In fact, this litigation occurred despite the fishermen having already been fully reimbursed by the federal government for their costs [7].
What Does It All Mean For Future Climate Action In The US?
With the CD gone, the MQD will dominate, allowing judges to make decisions based on their personal and political beliefs [2]. The MQD will make it harder for federal agencies like the EPA to take action, as the statutes they use are typically broadly worded. The exact interpretation of when the MQD applies, however, differs among courts, which inevitably leads to an inconsistent application across states and increased regulatory uncertainty [2]. The decision may also lead to the overruling of past cases where the CD was applied [6].
While Democrats try to advance climate action in the US, the recent decisions may limit their options. Patrick Parenteau, expert on environmental law at Vermont Law School, said that this decision means that they are “not going to be able to do much else on the environment, particularly on climate”. [1]. What could turn the tide is the remobilisation of Congress through a Democratic 3/5th majority in the Senate to overcome filibustering [1, 10]. However, that seems very unlikely to happen [11].
Other Climate Cases: A Brief Summary
Last July, a federal judge in Louisiana ordered that the review of LNG projects halted by the Department of Energy must resume. Now, about 20 projects are expected to become operational over time. The same judge had previously blocked federal efforts to investigate environmental racism in Louisiana [12].
The Supreme Court has even ruled on cases before lower courts issued decisions, showing an increased aggressiveness in two major decisions [1]. First, last June, the Supreme Court halted the enforcement of the ‘good-neighbour rule’ in 11 states, which required power plants to address ground-level ozone formation to reduce cross-border pollution. [13]. Second, last year, wetlands that are not connected to other federally protected bodies of water at the surface were ruled to remain unprotected, as they were found not to fall under the Clean Water Act [14]. This ruling opens large areas to highly polluting industries, such as mining [15, 16].
Conclusion
The overturning of the Chevron doctrine shows those seeking profit over people and planet using the judiciary branch to weaken the government and people’s rights. From climate change to worker protection, the decision is a significant blow to justice. The coming 2024 elections will give people, especially young people, a chance to send a clear signal to those in power that democracy and justice still matter in America.
