Annabel DeChant and Jack Liebowitz

Editor’s Note: Jim Vinch’s views are his own and do not reflect the opinions of the United States Environmental Protection Agency or the federal government.

In light of the Supreme Court’s overturn of precedent case Chevron v. Natural Resources Defense Council this summer, there has been widespread concern about what this means for federal regulatory power. 

One issue in an especially precarious position is that of environmental regulation and action. To learn more about what the overrule of the Chevron doctrine means for environmental regulation and judicial politics more broadly, we talked to Jim Vinch, a Miami alum and senior attorney at the EPA, who’s back at Miami teaching his course “Water Resources Law & Policy.” 

Could you tell us a bit about yourself, your background, and what brought you to work for the EPA?

So when I graduated from Miami, I really wanted to be a professor and started down the Ph.D. track to get a history doctorate. But after I finished my Masters, I got advice from a lot of  professors that employment prospects in academia were not great and that I should think carefully before pursuing a Ph.D. And so, when I was at Miami, I was also thinking about law school— I decided to switch to the law school path and went to law school.

You know, I went through law school without really knowing what the practice of the law entailed. I think that’s similar to most law students; they don’t really understand what it means to  practice law. So, I graduated from law school and immediately afterwards got a judicial clerkship with the Sixth Circuit Court of Appeals in Cincinnati for a year. Once that concluded, I went to work for a big Cincinnati law firm, where I worked for about six years. I soon realized that practicing corporate law in a big firm  wasn’t for me and that I needed to make a change. I spent so much time at my law firm that I felt like I led one life at my law firm, and then whatever remaining time I had outside work hours, I led a completely different life. I was a different person outside the office than I was inside the office. I had interests outside the office, in the environment, in outdoor recreation. I was a huge backpacker, fly fisherman, cyclist, and skier, and I was always doing things outdoors. I just thought to myself, wouldn’t it be great to merge these two interests, so that my personal and professional lives congruent?

And so I thought, oh, okay, maybe I should become an environmental attorney, but at that point, I had been in a big law firm practicing corporate law for six years, and there was no easy way for me to sell myself as an environmental attorney. So I decided to quit private practice and to go to George Washington University Law School to get an LLM degree in environmental law, which gave me a quick one year immersion in environmental law. And from there, I knew that I never wanted to go back to private practice again and I wanted to work in the public sector, and ever since then, I’ve been working for EPA. I’ve been at EPA for 25 years. It’s just been absolutely fantastic. I feel like I’ve accomplished what I set out to do, and I was able to merged my personal interest with my professional life, and so I have much better work life balance, and I feel like what I’m doing every day is meaningful, and at the end of the day, when I log out of my computer, I really feel like I’ve done something worthwhile.

What role do you play as an EPA attorney? Are you involved directly in litigation? Oversight and compliance? Appellate work?

I work in our Office of Enforcement and Compliance assurance, and I work in a separate office called the Water Enforcement Division. So I work exclusively with the Clean Water Act and the Safe Drinking Water Act. And what we do in our office is enforce the federal environmental statutes against individuals, corporations, businesses, or cities that violate the Clean Water Act. So approximately 90% of what I do is judicial enforcement cases. These enforcement cases involve a collaboration between EPA and the Department of Justice. So the Department of Justice attorneys are out in-court litigators, but the EPA attorneys sort of provide all the, I don’t want to say the brains, but for the most part, we have most of the substantive knowledge about the environmental statutes, and so we work together as a team to bring environmental cases. Right now, I have probably 15 environmental Clean Water Act cases spread around the country. That keeps me busy, but separate and apart from that, I also do policy work.

At the same time, while these enforcement cases are proceeding, the agency is doing its day-to-day work of regulating in general, and they’re producing rules and guidance documents. And sometimes our enforcement office has an interest in how those rules and guidance documents are developed—the final result of the rules—because they could affect how we enforce them in the future. So the attorneys in the enforcement office are also involved in those teams as well. The other 10 to 20% of my time I spent on other policy issues, advising, working with larger teams from other parts of the agency on developing Clean Water Act rules or Safe Drinking Water Act rules or guidance documents or things of that nature.

Naturally, administrative law is not a topic that most readers might be familiar with. So before we dive into the weeds here, I’d like to just go over a brief, sort of “Crash Course” synopsis of it all. So could you walk me through the basics of the regulatory process?

So the APA was a law that was passed by Congress, I believe, in the 1940s which coincided with the sort of birth and then subsequent explosion of administrative agencies that occurred along with the New Deal programs that President Roosevelt developed to combat the Depression. Before that time, there were a few administrative agencies, but there weren’t very many. And so all of this, the proliferation of all of these new agencies, and the massive hiring that it involved, kind of set a new paradigm for how laws are implemented in this country. 

The whole idea of this, of this administrative state—which we can generally refer to as the agencies that exist within the executive branch of government—is that they function within the executive branch of government. And the executive branch along with the legislative branch and the judicial branch comprise the three branches of government under the federal system. Congress passes statutes that give these agencies the authority to regulate certain specialized activities, such as food and drug safety, public health, air transportation and the environment. The agencies themselves are situated within the executive branch. Once Congress passes these statutes, it’s up to the agencies to implement them. That is, Congress provides broad brush strokes about what they want, what they’re intending to regulate with these statutes. And then it is up to these administrative agencies  to fill in details of all of these statutes through regulations. Finally, just to briefly mention the third branch, the judicial branch, that branch is involved in the administrative process because it judicially reviews actions that the agency takes. So the agency will pass regulations to implement some of these congressional statutes and those regulations that the agencies pass and implement are considered to be laws, just like statutes are, and so the courts have the authority to review them to carry out their duty to “say what the law is.” That’s their role in the federal system. 

So the entire administrative apparatus has been established. But there’s inherent tension between these three branches of government. Because the Constitution says nothing itself about administrative agencies. This is a creation of Congress and the executive branch over the years, and so there’s this tension because these federal agencies, that exist within the executive branch, have powers that look very similar to the powers that the other branches hold. So administrative agencies not only execute the law (that is they enforce the law), but they also promulgate laws. They develop regulations, and that’s very similar to what the legislative branch does, right? In addition, they have powers that look like what the judicial branch does, because they have the authority to set up their own administrative tribunals that look very much like courts. Actions that are taken by the agency, whether regulations or enforcement actions, can be appealed through this administrative process, and it looks very much like a judicial process. 

Sometimes, these other branches of government—the legislative branch and the judicial branch—think that these agencies are overstepping their roles. That they’re interfering with functions that were traditionally granted exclusively to the legislative branch or to the judicial branch. 

There’s always been this tension that has existed in the system. But ever since the Chevron decision, there’s been this sort of general, I don’t know if you want to call it compromise, but, a solution was developed on how to deal with this tension based on very practical realities. The practical realities are that, as society became more and more complex, it became increasingly apparent that Congress could not address all these complexities in their general statutes that they passed. Congress has a huge staff. They’re smart people, but they’re not experts in all subjects. So if they’re enacting telecommunications regulations or regulations regarding food and drugs or statutes that regulate airlines, they have the general understanding of the parameters of what needs to be done to protect society, but they don’t understand the minute details of what has to be done. And so rather than hire experts to fill in all those details, what the system has become is that Congress, in general, delegates that authority to the administrative agencies to fill in the blanks, to fill in the details through regulations and other sort of policy proposals. It’s through this delegation of authority—and a lot of times, Congress doesn’t specifically say in statute, we’re hereby delegating the authority to EPA to enact regulations on this specific point—sometimes it’s just a very vague delegation of authority. Nevertheless, there’s this understanding that the legislative branch is delegating to these agencies the authority to make these rules.

The agencies, historically, at least since the 1980s, have been able to accomplish that because they’re staffed by experts in the field. So at EPA, we have biologists, we have chemists, we have environmental engineers, we have all kinds of technical people. They’re wrestling with these very difficult questions, like the questions that Rob Billot was talking about the other day in his lecture about how to regulate PFAs substances. It involves chemistry, it involves biology, it involves pharmacology, those kinds of things, and so judges in general and legislators aren’t equipped to deal with those kinds of issues, so the agencies fill that role, and they have been doing so fairly regularly, and it’s worked well ever since the Chevron decision came out. It’s taken a long time, however, but there’s been pressure over the years to push back on Chevron because the view from some in this society is that Chevron gave the administrative agencies too much authority. 

The Chevron doctrine basically held that when an agency passes a regulation, those regulations can be appealed by citizens that might want to challenge them, or think they’re unfair, or the agency reached the wrong result. They’re free to do that. They can appeal to court. And the question in Chevron is, when a court is reviewing an agency’s regulation, how closely should the court review the agency’s regulation? Should the court get into the weeds and decide whether the agency made the right decision, or the preferred decision or substitute its judgment for that of an expert agency, or should the court potentially defer to agency expertise and not look extremely carefully at the underlying reasons, scientific, the technical reasons for why a rule was enacted, and basically just defer to the agency if they came up with a reasonable result. 

So they don’t look at it any more carefully than to make sure that the regulation was reasonable, not that, as sitting judges, they could think of a better solution than the one that the agency chose. Under Chevron, the judge couldn’t substitute their own judgment as to what is the best decision or what isn’t the best decision. As long as the agency acted within the sphere of reasonableness, the agency decision was going to be upheld. And so the courts weren’t really heavily scrutinizing the underlying technical details of these decisions. And obviously, certain sectors of society were not happy that that was happening. They felt that the agencies were giving too much discretion, too much leeway. Of course, at the same time, these agencies are exploding in size. And they’re passing more and more regulations, and these regulations are intrusive into everyday lives of citizens and businesses, more importantly. And so over the years, there’s been a general sense of pushback on Chevron from the obvious groups, primarily businesses and industry, because they feel like they’re being regulated too heavily, and, because of Chevron, they don’t have an easy pathway to challenge any of these government regulations in court. 

Now, how did Chevron fit into this process?

 Chevron was a doctrine that was developed purely by the Supreme Court. It’s not something, as I said, that comes from the Constitution. There had been other informal doctrines in the past where the Supreme Court held that agencies should be given  some degree of deference when the courts are reviewing regulations and other official actions of the agency, but there was nothing as formal and structured as what the Chevron decision created. 

Chevron actually developed a  two step process for reviewing regulations. So step one is where the court looks at the issue of whether Congress spoke clearly to the specific issue that’s under consideration. Did the statute clearly say what Congress expected the agency to do? In some cases, the statutes were clear. They’d say, “EPA, you have to enact this regulation to limit the discharge of this kind of chemical into this waterbody to ‘x’ parts per million.” The agency was obligated to follow that, there was no discretion. However, in most statutes, there was not that level of detail. So, if the court determined under step one that that Congress wasn’t clear in what it intended the agency to accomplish, then it moves to step two. At step two, if the court determined that Congress was not clear, it would review the regulation only to determine if it was reasonable under all of the circumstances–was the agency’s reading of the statute a permissible one. If so, then the court would uphold the agency’s decision.

It was a relatively lax standard of review and  the courts tended to defer to administrative agencies. And that makes sense from a number of perspectives. It makes sense because, first and foremost, judges are unelected. They’re appointed by the executive branch for life. Should judges be making these kinds of policy determinations that affect thousands of people, and the people would have no ability to replace a federal judge if they felt the judge got it wrong? However they decide the case, they can’t be voted out of the position. So, the general thinking is that judges really shouldn’t be making policy decisions because they are unaccountable to the public. And I think judges would admit that. Policy decisions should be made by the legislative branch or the executive branch because those officials are accountable to the public. 

That’s one reason. The other reason, obviously, that I’ve already alluded to, is that judges are lawyers. Yes, some lawyers are intelligent, but they’re not experts in everything, although some of them like to think they are. It’s sort of a dangerous game when you get these judges trying to play physicist or chemist or M.D and second-guessing the judgment of the agencies on these technical issues. Which one makes more scientific sense? Federal judges have the authority to “say what the law is” but that doesn’t necessarily include weighing in on technical details which may be more policy than law. Chevron recognized the inherent limitation of federal judges. However, with Chevron now gone, that will become the judge’s job to weigh in on technical and scientific issues. Part of this system that was established, I think, was because of the realization  that administrative efficiency was necessary. Without this administrative efficiency that’s built into the Chevron system. The entire administrative apparatus is going to get bogged down.

Were you at all surprised by the Court’s decision to overturn Chevron entirely? Did you expect a narrower ruling, or did you recognize that the storm clouds were forming well before?

I think it’s the latter. I’ve seen for years that the Supreme Court has been criticizing Chevron, and then they slowly began chipping away at Chevron with various other doctrines. There was something called the major questions doctrine that came up in 2022 that limited the effect of Chevron in certain cases. The Court came up with the clear statement rule that they used in other cases to limit the applicability of Chevron. They were going out of their way to find exceptions to Chevron. It was obvious that when they accepted the writ of cert on this Loper Bright case, that that’s precisely what they were doing; they wouldn’t have accepted it on cert if they didn’t intend to further restrict Chevron. So everyone saw the writing on the wall. 

I was not the least bit surprised that the Court reversed Chevron. But what I was surprised with was that the court did not provide any sort of alternative to Chevron. So it said, “Yeah, Chevron is dead. It’s unconstitutional, and therefore it’s invalid. But it didn’t offer—like I thought they were going to offer—a substitute standard of review that might not give agencies as much discretion to Chevron, but gave them some or was more clear about how the process was going to work going forward. And so that’s really the problematic part of it. It’s bad enough that Chevron was reversed, but the way they did it, I think, was kind of irresponsible and that they didn’t offer an alternative framework that the agencies and the courts can substitute in the absence of Chevron. We don’t know what’s going to happen. We just don’t.

Notably, the Court did say that other decisions that relied on Chevron are left intact, but like you said, they haven’t provided any other way to go forward.

Yes, I mean other decisions that have relied on Chevron remain intact. They couldn’t decide it any other way. They certainly weren’t going to welcome all these litigants in these cases that were decided years ago to come back into court and relitigate every single case. But you know, the issues that the courts were deciding in those cases that they say are still good law under Chevron will be relitigated and redecided under the new framework. And it’s likely that all those cases will be overruled, if not in name, then in the way that the law is applied. The court is likely going to determine that the law of the original case that relied on Chevron is no longer the law under this new Loper Bright doctrine. So it’s just a matter of time. Gradually the courts will start replacing all of these legal interpretations that were developed under Chevron, and start holding these agencies to stricter standards. Who knows what those standards will be, but they will start holding them to stricter standards.

Now, one of the main arguments that the majority makes in Loper Bright is that Chevron deference conflicted with section 706 of the Administrative Procedure Act. For context, I’ll read a quote from the APA that the Court cites:

“Section 706 directs that ‘[t]o the extent necessary to the decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.’’’ (5 U.S.C. §706.

That language – “the reviewing court shall decide all relevant questions of law” – do you read that as conflicting with Chevron?

I mean, absolutely. What you quoted, to me, directly conflicts with Chevron. I guess the question is, does it really conflict with Article III of the Constitution? And I think that’s what the court was getting at in this argument, that Article III of the constitution grants to the court the exclusive right to say what the law is. They’re the exclusive authority to determine whether a law is constitutional or unconstitutional or otherwise illegal. 

What Chevron has done is taken some of the judicial authority away from the judicial branch and given it to the agencies. Again, this is part of the  tension between the branches that I explained earlier. So the judicial branch is trying to reach in and take from the administrative agencies or the executive branch powers that the Constitution originally granted to them. 

So yes, the way the Court framed this, it came down to be basically a constitutional argument that Chevron was depriving the Article III courts of their constitutional power to say what the law is. Part of saying what the law is is determining what a statute means. The Court said, essentially, that it’s not good enough that Congress is vague. Congress might be vague, but the answer isn’t to give that authority to the administrative agencies. The answer is to give to the courts and let the courts decide where it’s vague and how to fill in that gap. So that’s really the essence of the Loper Bright decision.

Another point made against Chevron is that it violated separation of powers. And I think that we were getting into this a bit in the previous question. Justice Thomas wrote in his concurring opinion that, “Chevron compels judges to abdicate their Article III judicial power.” What do you think of this argument?

I guess it’s appealing on its face. I mean, the Chevron doctrine certainly told judges that there were things that they couldn’t review as carefully as they might otherwise review, and so it would appear to be, on its face anyway, a potential violation or encroachment on the Court’s Article III authorities. 

But there’s all kinds of statutes that restrict the Court’s authority to review lower court decisions and other legal issues. There are statutes that establish what’s called a “standard of review.” Reviewing courts don’t always thoroughly review the decisions of lower courts, and the lower courts don’t always thoroughly review decisions made by extrajudicial bodies—which is called “de novo review.” De novo review means the reviewing court is looking at an issue as if it were the original decider of the issue–for the first time. In de novo review, the reviewing court will leave  no stone unturned. The reviewing court can review every detail of the case and does not have to defer to the judgment of the lower court. That’s the most exacting, searching level of judicial review. But there’s all kinds of other levels of judicial review that the courts and the legislature have promulgated that require the reviewing courts to defer to the lower court or to an extra-judicial body such as an agency.

Saying that a court has limited ability to review certain aspects of a lower court decision in other circumstances has never been viewed as problematic from a constitutional perspective. For instance, in general, appellate courts can review the findings of lower courts on issues of law de novo–that is, they are permitted to substitute their judgment for the lower court’s. But if the district court or the trial court makes a finding of fact and they’re relying on the testimony of witnesses and they’re evaluating a witness’s credibility, the reviewing courts can’t engage in de novo review of those findings of fact. They have to defer to the district court because the district court was able to observe the credibility of  the witness testifying. In those circumstances, the lower courts are best positioned to evaluate whether a fact is true or not. However, limiting the ability of a court of appeals to second guess a reviewing court on a question of fact has never been held to violate Article III of the Constitution. The point being that historically narrowing a court’s ability to review a decision has not been found to violate the Constitution, but suddenly it became a problem to the Supreme Court in Loper Bright. So there’s all kinds of things in the law that restrict the authority that a court has to review another court’s decision. I don’t think there’s anything inherently unconstitutional about that, and so I don’t really see that there’s anything inherently unconstitutional about Chevron.

Chief Justice Roberts writes that “some courts have simply bypassed Chevron” or courts “do not always heed the various steps and nuances of [the] evolving doctrine.” In particular, he references the First Circuit Court in Loper Bright as skipping steps of Chevron deference. In your experience as a litigator, have you found that judges are overly willing to automatically apply Chevron as Roberts claims?

Oh, I’m sure there are some cases where that happens, and I’ve read decisions where the courts aren’t exactly clear as to each step of Chevron or that they collapse the two steps into one, and so forth. It seems in some cases they skip step number one and fail to make a detailed inquiry as to whether or not the statute is clear, the legislative intent is clear on the face of the statute, and they go immediately to step two. I’m sure there’s instances of that, but overall that’s not been the practice that I’ve seen. 

I mean, if that was the problem, then they could have written a decision that required the courts to engage in a more searching inquiry at step one, rather than blowing up the entire Chevron doctrine. So, I agree with some of that, but I don’t really see that to be the problem that is unsolvable. I think the Chevron doctrine and the structure of Chevron is fundamentally correct. I’m no constitutional scholar, but I don’t really see the problems from a constitutional perspective. But when you look at this from a practical perspective, it’s become absolutely untenable.

The Court has eliminated a fundamental principle of administrative law but has not offered an alternative. No one has any idea what’s going to happen next. Now, courts are going to be flooded with lawsuits from individuals that are challenging agency regulations that they would have never challenged before because they knew that they were subject to Chevron deference. 

Not only is that going to clog the courts up with a lot of legal challenges, but it’s also going to put the courts in the uncomfortable position of having to make these technical decisions that they’re not equipped to make. The courts don’t have the ability to hire technical staff. They’re not able to hire scientists or engineers to help them reach decisions, they just don’t have the capacity to do that, and so they’re going to have to make these decisions themselves. 

So I don’t know what’s going to happen as a practical matter. I don’t know whether the courts are going to realize that they don’t have the ability to make these kinds of detailed inquiries, and they might just default back to something that would end up giving the agency’s deference again, but under a different sort of construct. We just don’t know. I mean, something has to give, because if what the court is envisioning happens, the whole system is going to break down.

That segways into my next question, which is that the Supreme Court hasn’t deferred to an agency interpretation of a statute under Chevron since 2016. However, in the lower courts it’s a different story. Chevron has been cited in an estimated 18,000 lower court decisions. Do you expect that the overturning of Chevron will be particularly disruptive for the lower courts?

Sure. I’m already aware of litigants challenging a large number of EPA rulings or regulations that they might not have otherwise challenged. But I think for the immediate term, my concern is with how the administrative agencies are going to respond to this, and it’s probably going to have a huge chilling effect on administrative agencies. 

Agencies such as EPA were already very careful when  issuing rules and regulations that all the  I’s are dotted and our T’s crossed, that there’s adequate legal reasoning supporting the rule and there’s factual reasoning to support the rule. I think, with all this indecision about what this new Loper Bright standard requires there’s just going to be a chilling effect on agencies because they do not know how much technical and factual support a rule will need to survive judicial scrutiny.

So instead of investing precious resources into developing a new rule that may be protective of public health, an agency may be inclined to do nothing–even in the face of a public health crisis.   Because the last thing agencies want to do, and what the Department of Justice doesn’t want, is for the agency’s rule to be overturned in court. There’s no worse outcome from the Department of Justice than the federal government going to court and losing because it establishes negative precedent. So they will do whatever they can to dissuade the EPA or any other federal agencies from doing something that’s going to put the DOJ in a position that they’re going to have to go to court and potentially defend an agency action and then suffer a loss, because that’s just the worst thing that could happen. 

So that’s the immediate effect as I see it. There’s going to be a huge chilling effect on the agencies. But after that, then the courts are going to get overloaded, and I don’t know how they’re going to dig themselves out of that. I mean, the courts are already overwhelmed with just the regular civil litigation. Most of the administrative appeals and litigation happens in DC, and so it’s particularly those DC district courts, DC Court of Appeals that are going to be primarily affected, but it’ll spread to all the federal courts throughout the nation.

Chevron deference was devised by the majority Conservative Burger Court and of course, the late Justice Scalia even defended Chevron for a time before later criticizing it. And he was as conservative as they come. So what changed for conservative jurists to overturn Chevron forty years later?

Well, I think the definition of conservative has changed. To be honest with you, I don’t know exactly what’s going on with the conservative mindset now. I think it is relatively easy to define what was conservative in the 1980s, and that would be considered liberal today.  

I think it also stems from the growing view that the government is no longer benevolent and that the public should be skeptical of everything that it does. This is getting far beyond my area of administrative and environmental law, but I think that expertise is no longer valued and is looked at suspiciously. Experts are the product of education and the educational system has been devalued as a public good. Chevron makes good sense on many levels but what has been traditionally viewed as “good” is no longer a consensus opinion.

A greater cynicism towards government perhaps?

Oh for sure. I think it’s more than cynicism, just an absolute distrust and disrespect for institutions all around. Everything the government touches is automatically viewed as suspicious, tainted, or fraudulent, or, you know, not on the up and up. It’s sad to see.

Could you walk us through how lawyers at the EPA go about shifting their actions as the result of Loper Bright? You mentioned the chilling effect, could you expand on that?

It’s hard to say at this point because Loper Bright is brand new. Federal agency lawyers writ large are still trying to understand what Loper Bright means and how it should be implemented. Then each agency, obviously, has to decide for themselves how this is going to affect the particular programs they are implementing. 

Right now, as far as I know, and I’m not necessarily plugged into the highest levels that are working on this, there’s been radio silence on this issue. It will be a monumental change, but what that will look like is undetermined.

My job in particular, enforcing the law, that’s really not very much affected by the Loper Bright decision. We still have the same authorities that we’ve always had to go into court and enforce.  At some point, a litigant may challenge a regulation that EPA is attempting to enforce, which will make enforcement more difficult. But that hasn’t happened yet. All of this is yet to play out, and everyone’s just sort of sitting at the edge of their seat and waiting for the shoe to drop. Who’s going to make the first move? What will the first court say about Loper Bright as applied to the challenge of an agency regulation.? Then it’ll be about how we respond to it and how we move forward. 

So from my perspective, we’re just in a wait and see holding pattern. Which is not necessarily a good thing. When we’re supposed to be out there on the front lines protecting the environment and you have new threats coming up every day. Companies are developing chemical substitutes for PFAS chemicals for instance, and so we’re asked to constantly be on the forefront in regulating new chemicals. The death of Chevron will make that more challenging. 

At some point though, the companies are going to want to see some pay off for their years of pressuring the courts to reverse Chevron. However, this can cut both ways. Companies also rely on EPA to provide timely approvals of permits and authorizations that allow them to conduct business. They can’t move forward on a new project or market a new chemical or pesticide until EPA provides the necessary clearance. Well, as a result of Loper Bright, it will inevitably take the agency much longer to process these authorizations because the agency knows that its decisions will be subject to intense judicial review and possible reversal by a court. The industry that championed the reversal of Chevron to promote business efficiency may soon realize that they are not getting what they bargained for. And so now these very same industrialists are  going to complain “Where’s our permit?” or “Where’s our approval to manufacture this chemical substance?.” The agency’s response will likely be “Well, we’re still trying to figure out what this Loper Bright decision means and how we’re going to implement it, and so you’re just going to have to wait.” These are what you call “unintended consequences.” 

Could you elaborate more on this in the context of water regulations. Say, when you’re trying to enforce the Clean Water Act, how does this shake things up?

Again, so much about the law and being a regulator is trying to anticipate what’s coming in the future, and then developing regulations, responses or proposals to address future harms that we expect to occur or we have reason to suspect will occur. So I think it’s hard for us to know exactly— again, and I sound like I’m a broken record—but it’s hard for us to know exactly how this is going to shake out.

I think from an enforcement perspective, I don’t think it’s going to have a huge impact on what we’re doing immediately. For the enforcement cases that I’m dealing with under the Clean Water Act, I’m still enforcing the same violations under the same statutes and the same regulations. And as we discussed, the Supreme Court specifically said that all decisions prior to Loper Bright that relied on Chevron are still good law. All of those are still good law, so we’re still enforcing all of those. There shouldn’t be any problem with them, but eventually that’s going to change. 

People will start suing the agency on some of these rules and regulations and policies that we rely on using the new standard, and I’m sure some of them will go down to defeat and we’ll have to come up with new regulations. In the immediate here, now, it’s not really affecting enforcement that much, but in the future, it will. 

Further, this will make it nearly impossible to solve the “waters of the United States” issue that I discuss in my “Water Resources Law & Policy” class. When the Supreme Court overruled Rapanos in the Sackett decision, they threw the issue back to EPA to make rules to define what are “waters of the United States.” Previous iterations of the waters of the U.S. rule were subject to unprecedented judicial challenge and the court’s decisions were all over the map until the Supreme Court weighed in on Sackett.

EPA was already having a difficult time deciding how to craft a new rule in response to Sackett and now Loper Bright just increases the uncertainty. This area of the law has been in a state of constant turbulence for years and this will make this issue even more difficult to resolve.  Congress could pass a new CWA to clarify but that is impossible in the current political climate, and so this issue will persist. Uncertainty in the law makes enforcement extremely difficult.

Do you think there are any specific environmental issues that are going to be most at threat, such as things that get challenged in court the most frequently?

I do not work in the Clean Air field, but there are a lot of regulations that are being passed by our Office of Air and Radiation regarding climate change. Those things are going to get absolutely decimated.

The Supreme Court was already hostile to the global warming regulations that the agency passed. They looked for any reason they could to invalidate them, and they used, as I mentioned earlier, the Major Questions Doctrine in the West Virginia v. EPA case to invalidate many of the climate change regulations. I think that that’s really the place where we’re going to see the most impact. Because Congress was really silent about whether they intended to prevent global warming under the Clean Air Act, or whether they were intending to regulate carbon dioxide in the Clean Air Act. So a lot of the agency’s activity has been premised on the fact that Congress was not clear, and so, they took that as a sign that they were empowered to fill in the gaps. They’ve been filling all these gaps with all of these regulations, and those could all come crumbling down.

It just depends. In the Clean Water arena, I think most of our authorities—and it’s hard for me to say precisely, I would have to go back and look at everything—but most of our legal authorities are fairly  long standing.  However, as I mentioned above, all of the existing regulations, or soon to be promulgated regulations about the scope of “waters of the United States” will certainly be affected by Loper Bright. One of the most important–and difficult–parts of a lawyer’s job is to anticipate future problems and provide predictions on how those problems would be resolved under the law. When the law is stable, this is challenging enough. But when there are wild swings in the law, like we are currently experiencing, this becomes much more difficult and, in this case, practically impossible. The unsatisfying answer is that we will have to wait and see.

Overall, how do you see this affecting our ability to address climate change? Especially with how the EPA exercises regulatory authority based on statutory interpretation.

I think it’s going to be problematic in that arena particularly. Just for the EPA in general, and I may be overstating it, but it’s going to be disastrous until this all shakes out. Maybe five years from now, once we have a better idea of what Loper Bright means and how the administrative agencies decide to respond and how the courts interpret it, we might be in a better place, but we have no way of knowing. At the very least, and in the near term, I believe Loper Bright will cause administrative agencies to be cautious in how they approach environmental issues and this will particularly impact climate change regulations, where bold moves are necessary.