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consumer safety
The End of the Chevron Doctrine Is Good for Chevron and Bad for the Earth
The elimination of Chevron deference significantly impacts the ability of federal agencies to enforce regulations—particularly those related to environmental protection and climate change.
Jul 02, 2024
Last Friday, the Supreme Court overruled the 40-year-old Chevron doctrine, fundamentally changing the landscape of federal regulatory power. This decision, reached with a 6-3 majority led by Chief Justice John Roberts, marks a significant shift in administrative law and has profound implications for environmental regulations and climate accountability.
Ironically, the downfall of the Chevron doctrine will give Chevron and other major oil and gas corporations more latitude to slow down and block regulations, allowing them to pollute with near impunity. At the end of the day, this decision means that courts will play a more active role in interpreting regulatory statutes, undermining scientific expertise, slowing regulatory processes, and creating obstacles at a time when urgent action is needed to address the climate crisis.
Understanding the Chevron Doctrine
The Chevron doctrine, established in the 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., provided that courts should defer to federal agencies’ reasonable interpretations of ambiguous statutes. This deference allowed agencies (e.g., the EPA or FDA), staffed with experts, to interpret and implement laws within their purview effectively.
Under Chevron, when a statute was ambiguous, courts would typically side with the agency’s interpretation, recognizing the specialized expertise of agencies in their respective fields. This doctrine has played a crucial role in enabling agencies to enforce regulations on complex issues such as environmental protection, public health, and consumer safety. The ambiguity in statutes is often intentional, acknowledging that Congress isn’t equipped to design prescriptive policies across the whole suite of issues before them—let alone in a way that can evolve as science and technology evolve over time. This intentional ambiguity enables expertise to shape rulemaking as needed. During the 40 years Chevron was law, federal courts cited the doctrine more than 18,000 times.
The Supreme Court’s Ruling
The recent ruling arose from two cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce. These cases involved a dispute over a NOAA Fisheries rule requiring herring vessels to pay for onboard monitors to prevent overfishing. Lower courts upheld the rule, citing Chevron deference. However, the Supreme Court’s conservative majority saw this as an opportunity to dismantle the doctrine altogether.
Chief Justice Roberts, writing for the majority, declared that courts must now exercise their independent judgment in deciding whether an agency has acted within its statutory authority, rather than deferring to the agency’s reasonable interpretation. He emphasized that this change does not retroactively affect past cases decided under Chevron deference but will influence all future regulatory interpretations.
Five Implications for Climate Accountability
The elimination of Chevron deference significantly impacts the ability of federal agencies to enforce regulations—particularly those related to environmental protection and climate change, as many of these regulations were crafted to be flexible in interpretation by design. Here’s how:
- Increased Legal Challenges to Regulations: By removing judicial deference to agency interpretations, the ruling opens the door for increased legal challenges to regulations. Agencies will now face a higher bar in defending their rules, as courts will no longer necessarily defer to their expertise. This means that every regulation, including those aimed at reducing global warming emissions or protecting endangered species, will be subject to more inconsistent, inexpert judicial scrutiny. Under this new reality, oil and gas companies may feel more emboldened to challenge existing regulations hoping to shape the legal landscape to be more favorable for them. Successful court cases could limit the scope of future regulations.
- Shift in Regulatory Power: The ruling effectively shifts power from federal agencies to the judiciary. Judges, rather than agency experts, will have the final say on the interpretation of ambiguous statutes. This change could result in less predictable and likely less scientifically informed decisions on complex environmental issues, as judges do not have the same level of expertise as agency professionals.
- Slower Regulatory Process: The decision introduces a new level of difficulty into the regulatory process. Agencies like the Environmental Protection Agency (EPA) will need to try to anticipate every potential legal challenge alleging statutory ambiguity and prepare comprehensive justifications that can withstand unbounded judicial scrutiny. This could slow down the implementation of new regulations, as agencies might take more time to ensure their rules can survive such legal challenges. Worse, agencies may decide not to even try.
- Impact on Existing and Future Regulations: While the ruling does not immediately retroactively affect regulations upheld under Chevron, it will influence future regulatory efforts. For example, regulations under the Clean Air Act and the Clean Water Act, which often rely on broad and ambiguous statutory mandates, are now vulnerable to unfavorable rulings at the hand of activist judges. This could hinder efforts to implement climate policies at the federal level.
- Lobbying for Favorable Decisions: Judges will have more leeway and more need to rely on Amicus, or “Friend of the Court,” briefs in writing opinions. Fossil fuel companies and their attorneys will have the incentives and funding to file such briefs aggressively. The views expressed by oil companies will have equal weight compared to agency scientists and experts. It should be noted that the plaintiffs in both cases leading to the overturning of Chevron were represented pro bono by attorneys from conservative law firms with ties to the Koch brothers.
The Supreme Court’s decision to overturn Chevron represents a seismic shift in administrative law with far-reaching implications for climate accountability. By reducing the power of federal agencies to interpret and implement ambiguous statutes, the ruling complicates the path forward for robust environmental action. Oil and gas corporations have long been adept at manipulating the legal system to their advantage. Just hours after the Supreme Court’s decision, corporate lobbyists began strategizing to use the ruling to their advantage, aiming to challenge and reduce regulations in climate, finance, health, labor, and technology.
By employing a range of tactics, these corporations can delay public health and environmental protections, effectively postponing climate accountability cases for years. This strategy not only prevents plaintiffs from achieving justice through the courts but also allows these companies to use the courts to delay essential regulations. During this time, they can continue their operations with minimal restrictions, further exacerbating environmental and public health issues. Overturning the Chevron doctrine underscores the need for continued advocacy and a diversity of tactics to address the pressing challenges of climate change.
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How Insurers Can Be Sentinels for Driver Health and Safety
Advocates has saved many thousands of lives, diminished the number of injuries and saved tens of billions of dollars in prevented costs that flowed from bloodshed on the highways.
Sep 24, 2023
For nearly 35 years, a small nonprofit organization in Washington, D.C. has been having an outsized impact on highway and auto safety. It is Advocates for Highway and Auto Safety and it is funded by a dozen or more property-casualty insurance companies; with a board composed of consumer leaders and insurance company representatives.
Its origins were truly unique. After this industry lost a bruising California referendum in 1988 to consumer advocates, that brought successful regulation to the industry – saving motorists over $150 billion to date – some company executives wanted to look better to their customer public and agreed to start Advocates.
Instead of sulking, these companies, which included Liberty Mutual, Nationwide, State Farm and Allstate, picked up on the historic “loss prevention” mission of insurance companies from the early days of the Industrial Revolution. As factories were being built in the 1800s with boilers prone to exploding and starting fires, the early property insurance companies hired engineers to develop upgrades in boiler design and construction. Insurers would only provide coverage to companies that met the new standards. That is how the industry defined “risk management.” Dangerous factory boilers meant unacceptable insurance losses.
Advocates' work is a luminous illustration of many other areas of loss prevention that insurance companies and their numerous company foundations can support.
As the decades rolled by, the industry prospered, making profits year in and year out. So much so that its reserves bulged and investment of these monies began to overshadow net premium income. Insurance executives began to view themselves more as heads of financial companies than as underwriting companies pressing for safer factories, automobiles, building codes, fire prevention and other “loss prevention” attentivenes
Advocates, with an annual budget of only $2.5 million, concentrated on authentic “risk management,” which means safer motor vehicles, highways and driver behavior. They had something going for them that prevails in our “democracy deserts” where bad conditions go unchallenged. Call it “low-hanging fruit” or improvements already tested and successful in certain localities or on certain products that have not spread to the country as a whole.
Working with the Center for Auto Safety and some small coalitions specializing in confronting heavy truck hazards such as overworked and sleep-deprived big truck drivers, Advocates has saved many thousands of lives, diminished the number of injuries and saved tens of billions of dollars in prevented costs that flowed from bloodshed on the highways.
Now Advocates is pressing, with limited success, for an adequate National Highway Traffic Safety Administration (NHTSA) budget, beyond the current meager one percent of the U.S. Department of Transportation’s annual budget, even though 95 percent of transportation-related fatalities involve motor vehicles.
Since 1968, NHTSA-mandated safety standards for motor vehicles (seat belts, rollover and side protections, airbags, etc.) continue saving lives every day.
In 2020 the Pacific Institute for Research and Evaluation (PIRE) issued a 30-year report on the impact of Advocates with their driving forces – Joan Claybrook, Jackie Gillan and Judith Stone. Although the report’s evaluation doesn’t quantify everything, its authors documented the tremendous impact of these standards. Advocates contributed to the passage of 444 state laws and blocked the repeal of at least 66 bills, the authors found. All dealt with improving safety through federal, state and local actions such as better truck brakes, stopping more states from allowing double and triple-trailer trucks, and increasing the use of safety belts, child safety seats, booster seats and motorcycle helmets.
Lobbying Congress, Advocates helped pass mandates for NHTSA standards, including stronger head impact padding, side airbags and the clear life-saver called “Electronic Stability Control” (ESC), along with tire pressure monitoring and crashworthiness standards for passenger-carrying motor coaches.
In sheer dollars saved by the economy when casualties are prevented or mitigated, the PIRE report has this to say: “The cost savings associated with the portion of Advocates’ effort mentioned in this report are stunning: they total $1,629 billion in 2019 [since 1990]. These efforts have saved the government alone $158 billion, with Medicaid and Medicare claims payments dominating the government savings.”
“Advocates’ safety activities in this report also resulted in substantial savings to the insurance industry that reduced insurance claims payments and claims processing costs by $773 billion. The bulk of the insurance savings went to auto insurers.”
With all this, it is puzzling that the insurance industry does not publicize widely such achievements. It is also puzzling why alert insurance companies like Geico and Progressive have not yet become participant donors.
At a time when insurance companies are losing public favor for hiking their premiums, in addition to homeowners’ insurers pulling out of climate disaster regions such as Florida, one would think they would tout the kind of loss prevention contributed by Advocates. Policyholders should demand explanations.
Advocates’ work is a luminous illustration of many other areas of loss prevention that insurance companies and their numerous company foundations can support. I listed many such opportunities for this industry to shine in my article for the Suffolk University Law Review in 1987, titled “ Loss Prevention and The Insurance Function.” Opportunities exist not just for the property-casualty companies, but for health insurance and life insurance companies as well. Adding independent political muscle to their own self-interest could overcome obstacles to insured industries unwilling to change their ways.
Becoming major sentinels for health and safety takes corporate statesmanship and vision. There were motivating precursors. The industry established the Underwriters Lab for testing equipment in the late 19 th century. Liberty Mutual challenged the auto companies with a prototype safer automobile built in the 1950s led by their vice president and chief engineer, Frank J. Crandell. Archie R. Boe, CEO of Allstate, championed airbag installation in the late 1970s. State Farm took NHTSA to the U.S. Supreme Court and won a unanimous decision overturning Reagan’s recession of NHTSA’s airbag regulation.
Plenty of more low-hanging fruit, insurers! What are you waiting for?
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