The Chevron Doctrine: what it is and why it matters that the Supreme Court might kill it A conversation with NRDC's David Doniger. DAVID ROBERTS
After 40 years of observing the EPA using the Supreme Court’s Chevron Doctrine to directly regulate emissions, energy historians are voicing real concerns about EPA’s politicization of EMISSIONS.
VOLTSThe Chevron Doctrine: what it is and why it matters that the Supreme Court might kill it
The Chevron Doctrine: what it is and why it matters that the Supreme Court might kill it
A conversation with NRDC's David Doniger.
JAN 12
In this episode, David Doniger of the Natural Resources Defense Council explains what the Chevron doctrine is, why the federal judiciary has traditionally been deferential to agencies’ regulatory reasoning, and the potential fallout in the very real chance that the current Supreme Court does away with the doctrine entirely.
Text transcript:
David Roberts
In 1984, in a ruling on the case Chevron USA v. NRDC, the Supreme Court formalized what came to be known as the Chevron Doctrine. In essence, it says that courts should give administrative agencies wide latitude in how they interpret their legislative instructions.
So for instance, if Congress says in the Clean Air Act that air pollution should be reduced with the “best system of emission reductions,” it is up to the EPA, which is charged with implementing the law, to determine what the best system is. Even if a given judge does not like the way that the EPA has interpreted the law, the Chevron Doctrine says that the judge should, absent extraordinary circumstances, defer to the agency’s interpretation.
As none other than Justice Antonin Scalia wrote, “No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.” That is Chevron at its most bluntly stated.
However, Scalia also wrote another fateful sentence: “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
What exactly does clearly mean? And what exactly does vast mean? Since conservatives took over the Supreme Court under Trump, extraordinary circumstances have become more and more common; the court has increasingly been inclined to deem agencies’ actions more vast — or perhaps more major — than what Congress has instructed. In 2022's West Virginia v. EPA, Chief Justice John Roberts formalized what has come to be known as Major Questions Doctrine, which says that if an agency is going to do something major, it has to be not just plausibly but explicitlyauthorized to do so by Congress.
It is entirely up to the justices what counts as major in any given case. As you might notice, this somewhat pushes against the Chevron Doctrine, which counsels deference. And in fact, it looks like, based on a couple of cases that the Supreme Court is currently pondering, the conservative majority may just kill Chevron entirely, with potentially devastating consequences, not just for climate policy, but for the federal government's ability to operate at all.
To talk through the history and significance of all this, I contacted David Doniger at the Natural Resources Defense Council. When he was but a wee young lawyer, Doniger argued the original Chevron case before the Supreme Court, and lost it. Now NRDC is arguing to save the Chevron Doctrine — and Doniger may well lose again.
So with that excessively long and perhaps somewhat gloomy intro, David Doniger, welcome to Volts. Thank you so much for coming.
David Doniger
Thank you very much, Dave. And yes, you described the potential bookends on my career.
David Roberts
Yeah, it's a little dark irony there. So let's start with the original Chevron case. Let's go back in time to 1982. Miami Vice is on the TV, you probably have all your hair, and you're arguing this Chevron case. What was that case? Let's describe a little bit, sort of what prompted that case and what was at stake in that case.
David Doniger
Sure. Well, I was bald then and I'm bald now. So early in the Reagan administration, the EPA administrator, Anne Gorsuch, who happens to be the mother of the current justice —
David Roberts
Among many ironies here.
David Doniger
Yes. She issued a decision that cut back dramatically on one of the new programs Congress had adopted in the 1977 amendments to the Clean Air Act. Those amendments required that all major new stationary sources that were being built in polluted areas had to get permits, requiring them to use the very, very best pollution controls and more than offset the additional pollution that they would add to the area.
David Roberts
Right. New Source Review. I think some listeners may be familiar with this Clean Air Act program.
David Doniger
It turns out New Source Review comes in several different flavors in the Clean Air Act. But this was the strongest form of New Source Review, and the business community didn't like it. So they moved the Reagan administration to drastically narrow the scope of that requirement by changing the definition of what was a stationary source. I won't go into all the details, but the way they changed the definition of a stationary source had the effect of eliminating about 90% of the new industrial projects that would otherwise have had to get a permit. They could go forward without any such permits.
Right. She was basically saying, I think, that upgrades, even substantial upgrades, don't count. It only counts if you're literally building a brand new facility. Right, right. Which whacked 90% off of the alleged new sources out of the program.
Yeah. I mean, as I said a moment ago, one of the conditions was you had to make a net reduction in the overall air pollution of a plant as well as put the best controls on. And her regulation said, all you have to do is make a near equal reduction. You can actually have an increase, and then you wouldn't have to do all the other things that came with a permit program. So NRDC sued NRDC versus Gorsuch, and we won in the US Court of Appeals for District of Columbia Circuit.
David Roberts
The D.C. Circuit said basically that Gorsuch's interpretation of the Clean Air Act was — what? Just facially unreasonable?
David Doniger
Well, it got squirrelier than that, because there had been two prior cases about other parts of New Source Review, as it appears in other parts of the Clean Air Act. And in the first case, which was decided in the middle seventies, the D.C. Circuit had said, "You can't do this. The stationary source definition is what it is and you can't change it." In the second case, however, a different panel of the same court said, "Well, that particular program is only about limiting how much worse things get in the clean areas of the country. So you may do this, you may do the definition, which narrows the scope of the Vermont program."
And then our case came up third. And the court said, "Well, the law doesn't seem to be so clear one way or the other, but we have a law of the circuit, a law of this court, that when the program is one to make the air cleaner, you can't do this. And when it's one to limit how much the air gets dirtier, you can do this." And since our case fell in the first group, they ruled in our favor against EPA. And that decision was written by Judge Ginsburg, later to become Justice Ginsburg. So the Reagan administration took the case up to the Supreme Court.
And what the Supreme Court decided was, first, that NRDC hadn't shown this was unambiguous. This source definition that included all the projects — we hadn't shown it was unambiguous. So the court concluded that what Congress had done was leave the EPA some room to decide what the definition of source should be. In other words, what the scope of the permit program should be. And the court went on to reprimand the D.C. Circuit for its decision rule, which was just pure policymaking by judges.
David Roberts
Right. Judicial activism.
David Doniger
Right. And so Justice Stevens, writing for the full court, actually six members of the court, three were absent, said, "Look, when Congress has written a statute and told an agency exactly what it wants to do, when the law is unambiguous and clear, both the agency and the courts have to observe that." But in their view, this is a case where Congress had written a law with some space for the agency to make some choices. And there, he said, the judges should respect the choices made by the politically accountable agencies because Congress and the agencies who work for the president are responsive to the voters, whereas the judges are unelected.
David Roberts
Right. The quote is, "In such a case, federal judges who have no constituency have a duty to respect legitimate policy choices made by those who do." This will come back later, so I wanted to get that on the record.
David Doniger
Yes. And the first part of that decision is equally important, that when the law is unambiguous, the agencies and the courts have to follow it. But the controversy now is about the many instances in which things are somewhat ambiguous, or whether Congress has — either deliberately or because it was just something they couldn't foresee — they've used some words that have reasonable interpretations that go from A to B. And does the role of the courts is if the agency has chosen something which is totally outside the range Congress left — an unreasonable interpretation. Well, then they should be slapped down.
David Roberts
This is the legendary Chevron Doctrine. It's a two-step test. Right?
David Doniger
Right.
David Roberts
So the first is, did Congress speak unambiguously? And if it did, then the agency just has to do what Congress said.
David Doniger
Yes. And we were contending in this case that the definition of a stationary source was unambiguous. The court didn't agree with us, and then they went on to define step two.
David Roberts
Right. So the second part of the test is, if it's ambiguous, then defer to the agency.
David Doniger
If the agency has made a reasonable choice, not a wacko choice. And I'll give you one example of a wacko — thing that didn't survive. For example, in the Clean Water Act, there is a term, the total maximum daily limit (TMDL) for water pollution. And this is later in the Reagan administration, the EPA tried to define the limits as annual averages. And the D.C. Circuit, following Chevron, said, "Look, there may be some play in what daily means. It could mean a daily from twelve noon to twelve noon, or it could mean a 24 hours average, but it can't mean an annual average."
David Roberts
"Daily" can't mean "annual." That's unreasonable.
David Doniger
So, that was a step, one decision.
David Roberts
Right. So just to put a fine point on this, your contention, NRDC's contention in that original case is that Gorsuch's action should have failed that first step of Chevron because you thought that the source definition was unambiguous. But the court ruled that it was ambiguous and thus moved on to the second step, which is if it's ambiguous and reasonable, the agency gets to do what it wants. So you lost. NRDC lost that case. And that became, could be known — I mean, it's really interesting reading the history of this. You know, Stevens has said since that he didn't think it was that big of a deal.
He thought he was just sort of like stating what common judicial practice was, but it became this sort of foundational decision in administrative law, more cited than, I think, any other case in administrative law.
David Doniger
Yes. For the last 40 years. But you're absolutely right that what Stevens thought he was doing and what we think he was doing was sort of restating what had been 100 years or more of practice by the Supreme Court and the lower courts, saying, look, when the Securities and Exchange Commission or the Federal Power Commission, these are New Deal agencies, when they interpret their statutes, which are quite a bit vaguer, actually, than the Clean Air Act —
David Roberts
Yeah, there's a lot of vague statutes out there in the world.
David Doniger
Yeah. But when that Congress told the agency to figure these problems out, and if the agency has been reasonable, we give great weight, we defer to, we respect the various words, but they all amount to the same thing. We defer to the judgment of the agency on these questions. That would allow at least some play.
David Roberts
Right. Which makes sense for two reasons, which will come up later. One is those agencies are appointed by a president who was elected. Right. So they at least have a colorable claim to be democratic institutions, have some accountability to voters, whereas judges are unelected, so they have no accountability to voters. So democratically speaking, you want the decisions made closer to where there's accountability to voters.
David Doniger
Correct. And although the agencies report to the president, the Congress supervises what they do. It decides how much money they can get. It can put conditions on their funding. It could refuse to confirm someone because of the policy judgments that they might take or that the agency is already taking. So the Congress has leverage and the Congress can change the laws. So the Congress has leverage, and the Congress is politically accountable, too.
David Roberts
Right. So this is important. Agencies are democratically accountable and judges aren't.
David Doniger
They're the creatures of Congress.
David Roberts
Right. Right. But then secondarily, it's also the case that these agencies are full of technical experts who understand these areas, often very technical areas of law extremely well, and just a random group of judges doesn't. So it makes sense on both grounds, basically, to defer to agencies when you can.
David Doniger
It's not just that the question is technical, but they understand how a program fits together. They understand what they're trying to accomplish over a number of years and how this particular decision fits into that. They may have a better grasp of that than a judge who just sees one-off cases that pop up.
David Roberts
Okay, so that is the original Chevron case that established the original Chevron Doctrine, which has gone on to be absolutely foundational to US law. And what has happened since that case was passed? I mean, in that case, you have a bunch of judges saying, "You lefties, shut up. This Republican-controlled agency gets to do what it wants," but then ensuing years, all of a sudden, things kind of switched around, and the agencies came under control of Democrats, God forbid, and started doing all kinds of things that Republicans don't like. And then here you have the Chevron Doctrine sitting there saying very clearly, "Sorry, conservative judges, even if you hate this stuff, you are supposed to defer."
That's what the law says. That's what precedent says, what the Chevron Doctrine says. So over time, in the years between the 80s and the current day, conservatives have come to feel considerable hostility toward the Chevron — not uniformly.
David Doniger
A number of the judges and justices, at least until recently, regarded Chevron as a neutral principle. Yeah, it gives Republican administrations that don't like environmental laws or public health laws more freedom to interpret them narrowly, and it gives Democratic administrations more freedom to interpret them more expansively. And Scalia was a champ for the neutral application of that doctrine.
David Roberts
And did apply it sometimes against his own —
David Doniger
Exactly.
David Roberts
interests occasionally, like, he did apply it in a relatively neutral way in some high profile cases. But I think what's happened, and like conservatives used to say, they don't like judicial activism either. But it turns out what they really didn't like was liberal judges being activist. And what they really didn't like was liberal agencies having freedom. And I think over those years, as the right has, you know, the Republican Party has kind of drifted right and become more radical. I think they have come to see administrative agencies not as neutral, right. As kind of like intrinsically liberal, right, intrinsically leaning toward bigger government.
David Doniger
And I put it this way: If you're happy with conservative government when it's cutting back on regulations, and you're unhappy when liberal governments are expanding them, actually, the best remedy of all, from the most conservative point of view, is just to cut back on the authority of government. Because if the government can't do anything, it can't do any of this stuff.
David Roberts
I don't even think that's just conservatives. I think even political scientists have sort of come to see that the big administrative state sort of is kind of expansionist. Like, if you have agencies that can do things, they'll tend to do things because there's lots of problems in the country that need solving.
David Doniger
I would put it this way that we lived in a simpler time in 1789, but even then, the first Congress was delegating and tasking agencies to help them govern because there were stuff that the late 1700s US government, the Congress, couldn't figure out how to do by itself. So it called upon agents or agencies reporting to George Washington, the president, to carry out these laws, to interpret them and so on. And what I would think is the way to think about this is that the complexity of the world, the complexity of the problems we face and that the world throws at us has grown. And the government's capacity to meet these challenges has to grow too.
Otherwise they go unmet. I mean, pollution is a classic example where you can't protect yourself as an individual. You need collective action from the government to constrain the dangerous activity.
David Roberts
I was going to make this point later, but let's just make it now because I feel like it is kind of one of the central points that people need to understand about all this, which is just a small body like Congress trying to govern a giant, sprawling, wealthy complex country like the US cannot administer all the details itself of financial regulation, of safety, standards, of pollution. I mean, go down the line. There's just like tons and tons and tons and tons of stuff that government needs to do. And these are just elected people. They can't be experts on all those things.
So they have to, if they want to do anything at all about these problems, they have to by necessity farm some of the judgment out to expert agencies.
David Doniger
Exactly right. They don't have the expertise. They don't have the foresight. I'll come back to that in a minute. And they don't have the bandwidth.
David Roberts
Yeah, bandwidth, most of all.
David Doniger
If you think about the late 60s, early 70s when we had the explosion of public health and environmental laws from a reform-minded Congress, even though they were bent on legislating and it was a bipartisan time, they still couldn't get down into the weedy details that come up when you try to administer any of these programs.
David Roberts
Right. And are explicit in the laws about that. Like it says, "EPA should do whatever the best science says." So that almost definitionally says EPA is responsible for figuring out what the best science says, we don't know.
David Doniger
They knew in 1970 that there were five big air pollutants polluting our cities and they told the new EPA specifically, "You've got to set standards for those five pollutants. But more than that, we're giving you the authority to recognize new pollutants when the science identifies them."
David Roberts
Conservatives hate those laws for exactly that reason is that they're open ended and they have developed and grown and expanded over time.
David Doniger
Right. But think about even the active, capable Congresses of that time period. They could not deal with the Clean Air Act more than once a decade. They had lots of other stuff to do.
David Roberts
Right.
David Doniger
And they certainly couldn't manage the clean air program and all these other programs on a day to day basis or a month-to-month basis; they could manage to come back to the Clean Air Act in 1977 and revise it based on what EPA had done and what they'd learned, and again in 1990, and it hasn't happened since. And the same story is true about any other major law they get. Congress is able to focus on them and legislate maybe once a decade. And this Congress or these most recent Congresses can't even name post offices.
David Roberts
And also, conservatives have very effectively more or less crippled the federal government's ability to pass laws at all with the filibuster and everything else, like they've more or less shut Congress down. So it's almost the agencies who are doing the only governing left, which is precisely why they're going after them.
David Doniger
Yes, but they have to be even the most active environmentalists, like me, or aggressive environmentalists. The agency can't just make stuff up. They have to be able to point to the Clean Air Act or some other law and say, "This Congress has already provided us the authority and the task to do this".
David Roberts
Right. So let's get back to our narrative. So as I mentioned in the intro, in one of these post Chevron cases, Scalia sort of, almost in passing, mentions, you know, "We defer to the agencies, but we are a little skeptical. If an agency claims to find vast powers, vast new powers in existing statutes." They won't hide — what is it — elephants in mouse holes or whatever. So over time, since Chevron, conservative justices have gone back to this quote and sort of wedged it bigger and bigger until it has become kind of its own freestanding doctrine. So describe that process. Kind of what happened.
David Doniger
Well, so you're talking about the emergence of what's come now to be named the major questions doctrine. It started off somewhat innocently and inconsistently. The first decision I know about that really matters is one over whether nicotine is a drug and cigarettes are a drug delivery device. That's the position the FDA took at the end of the Clinton administration, and that went up to the Supreme Court. And Justice O'Connor wrote an opinion which basically said two things. The wording of the FDA law is broad enough that to consider nicotine a drug or to consider cigarettes a drug delivery device makes sense and doesn't offend any sort of principles for how you interpret the words of the law.
But she said there's something else going on that is that Congress has passed other laws, a whole slew of tobacco specific laws that regulated or limited advertising and did some other things but the presumption in all those laws was that tobacco, that cigarettes were still a legal product to sell. And if the FDA deems nicotine a drug, they would have to ban tobacco. She said, "You know, we're not going to allow that to happen in so cryptic a fashion when it has such —" and she was the first one to use the term, "such broad political and economic consequences."
David Roberts
Right. The idea here is that if Congress had meant to ban tobacco —
David Doniger
They would have said so directly.
David Roberts
It would have said so. It would have said so, and it wouldn't go off making a bunch of other rules based on the presumption that tobacco was legal.
David Doniger
As an aside, it took ten years, but Congress later passed a law giving the EPA quite a bit of authority over regulating nicotine.
David Roberts
Oh, funny.
David Doniger
In that instance, Congress responded, but it took a decade.
David Roberts
Right? So conservatives found this aside, right? And they're like, there's our pinhole that we can get through.
David Doniger
But they didn't grab it right away. Scalia came up with the phrase, "you don't hide elephants in mouseholes." But the original use of that phrase was to reject an industry argument that purported to find authority to undermine the public health standards for air pollution in a few stray words in the Clean Air Act. And he said, "Come on, if Congress wanted to give the EPA the authority to disregard public health for economic reasons in this decision, they would have said so." And so he turned down an industry effort to weaken the Clean Air Act with this "no elephants hidden in mouseholes" phrase. But that got repurposed.
David Roberts
Right. And I want to stop and emphasize this, too, because I read this in your paper, and I feel like this is an important point. What Scalia was doing there, he did not see himself as outlining an exception to the Chevron doctrine. When he did that, he viewed himself as merely applying Chevron reasoning.
David Doniger
Right.
David Roberts
He thought he was doing Chevron.
David Doniger
At step one, that the law was clear on this point, that the public health standards were supposed to be health standards, not cost-benefit standards.
David Roberts
Right. But then, so he says this, then conservatives get their pinhole, then they get their sort of wedge that they can wedge farther and farther open.
David Doniger
Then came another good decision, again by Stevens. This was Massachusetts v. EPA. This was in the Bush administration — so another conservative administration. The administration says, "No, the term 'air pollutant' doesn't include carbon dioxide or the other greenhouse gases." And Stevens writes an opinion saying, "Yeah, plainly it does. The term unambiguously includes all chemicals that are thrust into the atmosphere from cars and power plants."
David Roberts
Right. So that was a step one Chevron, not a step two, not "We're deferring." But there's "No deferring to be had. It's unambiguous."
David Doniger
Scalia wrote a dissent in which he said, "I think this term is ambiguous, and we should leave this policy judgment to the agency." So he didn't go with major questions or anything like that. He went with straight Chevron. He just disagreed about whether the term "air pollutant" had wiggle room, which Stephen says it didn't. And he said it did.
David Roberts
Right. But even if it does have wiggle room, Scalia says we're deferring to the agency.
David Doniger
We should leave it to the agency, which in that case would have been the Bush administration saying "We're not going to regulate."
David Roberts
So the outcome, if Scalia had been in charge, was that he would have given Bush's EPA permission to exclude greenhouse gases?
David Doniger
Same as in Chevron with the definition of a source.
David Roberts
Right. But he was doing Chevron by doing that, not an exception to Chevron.
David Doniger
Exactly. Well, then came another case on greenhouse gases which involved — it all comes back around to this New Source Review program.
David Roberts
They really hate — conservatives really hate the New Source Review program.
David Doniger
Well, and this is a case where Congress was too specific because Congress wrote these New Source Review provisions. And the question was how many tons make a major source? And Congress, with advice from the EPA and experts and so on, said, "Well, look, a good dividing line is, I'm going to make this simple, is 250 tons." And that worked for all the old pollutants. 250 tons of SO2, sulfur dioxide is a big source, but when it comes to greenhouse gases, 250 tons of CO2 come from a McDonald's.
David Roberts
Right. Which would have — if you treat CO2 as a pollutant and if you take the 250-ton threshold seriously, then virtually everybody ends up subject to New Source Review, which was obviously like no one wanted that.
David Doniger
The EPA had come up with a circuitous way of avoiding that. And Justice Scalia, in that decision said, "Come on, something with consequences as big as multiplying from a few thousand, a few hundred sources a year having to go through this review to millions of sources having to go through review, and millions of tiny sources at that. It couldn't be what Congress meant." So that's where he said, "We expect them to speak clearly if they want to do something with such vast political and economic consequences." And I can't say I disagree with the outcome because it would have made no sense to magnify the size of the program and dip down to every McDonald's and dry cleaner.
David Roberts
Right. So the EPA just instituted like —
David Doniger
An exception. They made up an exception.
David Roberts
An exception for greenhouse gases.
David Doniger
Yeah, they said, for greenhouse gases, we're going to change the number from 250 tons to, I think it was 75,000.
David Roberts
And was that okay with Scalia?
David Doniger
No, he said, you can't change a number. The number is in the law.
David Roberts
Right.
David Doniger
If Congress had said "EPA, you pick the number," he would have been fine with that.
David Roberts
Right.
David Doniger
But they didn't; Congress wrote the number into the law.
David Roberts
So Scalia's point then was, you can't "interpret" a very specific number, and if you follow up on the logic of the very specific number in this case, you're going to regulate everyone, which can't be Congress's intention. So his point was just, you can't make greenhouse gases part of New Source Review.
David Doniger
Yes, that's the bottom line. But there's another way. Basically, he upheld another part of what the EPA did. And basically, as he said from the bench, the EPA is getting 90% of what it's out for here. And so he didn't even think he was making a huge cutback because, again, he said, the EPA doesn't even want to do this. They've come up with an exception, and we think there's a more straightforward way to get the same result.
David Roberts
But he said the mouse hole thing, and now it's on record. And so then conservative justices start thinking, well, "What counts as a mousehole and what counts as an elephant? What counts as more major than what the law says?" And then they start making judgments on that basis.
David Doniger
Yeah, well, the next big one was the Obamacare decision in which Chief Justice Roberts upheld the law. But what he said is "This is too important to be thought of as a Chevron case. So we, the judges, need to decide this." Now, what he ended up deciding in that case is to uphold the government's position that the insurance exchanges, if a state didn't set up an insurance exchange, the federal government is supposed to set it up for the people in that state. And he upheld that.
David Roberts
But crucially put on record, this is not Chevron. This is an exception to Chevron because it's major.
David Doniger
Yeah.
David Roberts
So, that was very, like, this is —
David Doniger
It's creeping. It's creepy and it's creeping.
David Roberts
Put a footnote in here. Yeah, and purposefully creeping. This is what Roberts wants to do, in contradistinction to his lunatic colleagues. Roberts wants to incrementally, through the back door, wear away at the power of the administrative state. And that's sort of what he's doing. He's like, "I'm going to let you do this, but I'm just putting on record that that's our decision. That's a judge's decision, not the agency's decision."
David Doniger
So, the next — I'm going to skip really quickly through these — there were two decisions on COVID related regulations. One where the public health service tried to impose a moratorium on evictions on the theory that if you evict people, they're all going to congregate in public shelters and spread COVID around. So as a public health measure, we need to keep people in their apartments or in their homes. And the other case was whether the Occupational Safety and Health Administration could require big employers either to require that their employees be vaccinated or that they have to be tested. And in both of those cases, the court said, "Look, these things seem to be big departures from what the public health service has done in the past or what OSHA has done in the past."
You can argue about whether they're right — I think they were wrong — but they just applied this concept, "If it's big and novel and it isn't clear, we're not going to let it pass without Congress speaking to it again or speaking to it directly." And then we get to the West Virginia case that you mentioned.
David Roberts
Yes.
Since bureaucrats are some of the stupidest, most easily pushed around by authority, and easily bribed people on the planet they shouldn’t be given power on their own to destroy swathes of the economy. Seems obvious to me.