Thinking Out Loud: The Chevron Doctrine

Whether you believed the Chevron Doctrine was wrong or not, the Supremes have moved us from the proverbial “pan into the fire.”

“Agencies have no special competence in resolving statutory ambiguities. Courts do.” 

- Chief Justice John Roberts

I have been following the case brought by Loper Bright for some time. The issue of who pays for oversight on a fishing trawler was interesting in its merits. My friend and colleague, Dr. Billauer, has taught me all I know about admitting scientific evidence into court through the federal judiciaries Daubert standard. [1]

This raises my first concern about Chevron’s reversal. Not only does the judiciary lack any “standing” (Sorry, Dr. B, I know this is not the correct use) in adjudicating any scientific controversy because of a lack of scientific knowledge, but the very basis of law requires a degree of certainty unusual in applying science. Contrast the words of Chief Justice Roberts,

“Courts, understand that such statutes, no matter how impenetrable, do — in fact, must — have a single, best meaning.”

with the words of a scientist.

“Lack of certainty is precisely what makes conclusions more reliable than the conclusions of those who are certain: because the good scientist will be ready to shift to a different point of view if better elements of evidence, or novel arguments emerge.” 

- Carlo Rovelli, Ph.D

The law has done an abysmal job of translating and applying science. If regulatory decisions are to be "whim-based," wouldn't we all prefer that those whims be based on first-hand scientific knowledge rather than second-hand, "friends of the Court" briefs or the highest-paid expert witness?

My second concern is that Chevron’s history will be repeated. The Chevron Doctrine, written in 1984, found that when a federal statute delegating policymaking authority to an agency was ambiguous, courts should typically defer to the agency’s determination. Why? Because “judges are not experts,” and accountability for the actions of those faceless, unelected, agenda-driven bureaucrats resides in the political appointees heading the agencies, who are accountable to a president, who, in turn, is responsible to us.

With the Reagan presidency in full ascendency, Chevron worked in favor of Republicans who controlled our regulatory agencies. The Democrats, or at least those favoring regulations as the means of change, were put back on their heels. Fast-forward to the Obama administration and the Chevron Doctrine had lost much of its appeal to those on the right while bolstering the hopes and actions of those on the left. Regulations, especially those based on science, should not be the whim of either political wing. Regulation of a host of environmental and health issues should be based on science, not the moment’s ascendant ideology.

My third concern is that this decision will reduce our agility to respond to novel situations while further clogging the Courts and enriching lawyers at our expense. It takes two to three years for a federal rule to be enacted. The Loper Bright case took a bit longer than four years to be adjudicated by the Supreme Court and remanded to the lower courts.  

“[Chevron] reflects the reality of government, and thus more adequately serves its needs.”

-Justice Antonin Scalia

With the end of Chevron, we might hope the legislators will reduce the ambiguity in their lawmaking. They needn’t legislate specifics based on understanding and judging science; that would be far too much to ask of them, but they can indicate that the regulating agency should write this or that group of regulations. They can make their deferral to expertise clear.

Moreover, as ACSH has championed for some time, the science underlying those regulations should come from a more diverse group of “stakeholders.” That’s right, diversity can be crucial. There is no reason to automatically exclude “special interests,” all that does is make them find other less transparent ways to influence regulation. (See the Wolves of K Street for the frightening details)

The Supreme Court’s reversal of the Chevron Doctrine marks a significant shift in how regulatory power is allocated between agencies, representing the executive branch and the judiciary. While it addresses concerns about unchecked bureaucratic authority, it leads the way for unchecked judicial authority. Chevron reflected the reality of government, that not all can be known, and that the details are sometimes messy and often uncertain. Putting the details in the hands of the judiciary will not achieve balanced, effective regulations that serve the public interest without falling prey to political whims.

[1] Dr. Billauer's writing on the subject are too numerous to link to individually, here you can find her work with ACSH