ǿմý

How the Chevron ruling could change Congress

By Emma Dumain, Kelsey Brugger | 07/10/2024 06:21 AM EDT

Lawmakers are floating legislation. Republicans are targeting old rules. Others say Congress needs to staff up with experts.

Rep. Bruce Westerman (R-Ark.).

House Natural Resources Chair Bruce Westerman (R-Ark.) is planning to ask agencies about rules that have been upheld under the Chevron doctrine. Francis Chung/POLITICO

Lawmakers on both sides of the aisle are talking about how Congress can make legislation airtight after a landmark Supreme Court ruling opened up a release valve for legal challenges to agency actions.

That 6-3 decision in late June, known as “Chevron deference,” which for four decades directed judges to defer to the expertise of agencies in implementing laws.

Republicans looking for ways to weaken the so-called administrative state cheered the decision, while Democrats are worried the ruling could leave judges as the ultimate arbiters of agency policy. Now, many say, Congress will have to pick up the slack by writing bills with more detail.

Advertisement

“We’re gonna have to do our job,” said Rep. John Curtis (R-Utah), the former chair of the House Conservative Climate Caucus who is expected to win a Senate seat in November. “We’re gonna have to be clear, we’re going to have to not leave things to be guessed, and we’re going to have to realize that we have to make hard decisions — not government agencies.”

Those decisions could fundamentally alter how Congress operates — while also exacerbating the deep rifts between the two parties. Already, Republican lawmakers are looking at regulations that might be vulnerable to legal challenges. Others say Congress needs to staff up with experts.

For their part, Democrats are hoping they can somehow codify Chevron to undo what damage they think has been done by the Supreme Court.

Environmentalists and their Democratic allies depended on Chevron to protect a host of climate and environmental priorities. Now, they say the overturning of Chevron will make it harder to uphold those policies.

After Chevron‘s fall, Republicans have wasted little time, particularly those who have set their sights on undermining the Biden administration’s environmental agenda.

Rep. Bruce Westerman (R-Ark.), chair of the House Natural Resources Committee, said he is “actively constructing letters to the various agencies that our committee has jurisdiction over to get a list and quantify how many rules have been upheld because of Chevron; what rules are still pending.”

Rep. Cathy McMorris Rodgers (R-Wash.).
House Energy and Commerce Chair Cathy McMorris Rodgers (R-Wash.) is plotting her response to the Chevron ruling. | Francis Chung/POLITICO

House Energy and Commerce Chair Cathy McMorris Rodgers (R-Wash.) said she, too, had, “a long list of examples where we believe agencies have gone beyond their legislative authority, and we will be taking action where we believe it is appropriate.”

She pointed to EPA, the Department of Energy and the Federal Energy Regulatory Commission, which recently released a transmission planning rule that enraged Republicans.

And Rep. James Comer (R-Ky.), chair of the House Oversight and Accountability Committee, indicated he would be holding hearings in that same vein, starting with testimony Wednesday from EPA Administrator Michael Regan.

“The EPA has been, in my opinion, one of the worst — if not these worst — offenders of the bureaucrats interpreting the law in the leftist mindset,” Comer said, “so we’re definitely going to try to bring some people in and talk about specific rulings and specific executive orders and laws that we believe has been misinterpreted by the bureaucrats.”

The need for expertise

Republicans like Curtis acknowledged that the post-Chevron landscape will require everyone to do more with less: “I think it’s fair to say … nobody has adequate staff to do everything we’re asked to do,” Curtis said.

National Taxpayers Union Executive Vice President Brandon Arnold said it was imperative House and Senate committees hire more staffers with a broader array of expertise to write lengthier committee reports to account for all possible interpretations of proposed laws.

However, Curtis and other Republicans gave no indication they expected their party to support spending additional money to bolster congressional operations for this purpose.

The result, warned Robert Hockett, a Cornell Law School professor who has testified before Congress on Chevron deference in the past, is a scenario where “unelected staffers” have more influence than the lawmakers they work for.

Alternatively, Hockett said, lawmakers will increasingly “rely on lobbyists to draft preliminary bills for them,” creating a situation where “regulated parties will be writing their own regulations … or stuff won’t get regulated at all.”

Sen. Brian Schatz (D-Hawaii).
Sen. Brian Schatz (D-Hawaii) speaking at the COP28 international climate summit in December. | Joshua Bickel/AP

Many Democrats, who by and large oppose the Supreme Court’s recent decision, are more interested in seeing whether they can revert to the old Chevron era rather than adjust to the new normal.

Roughly a half-dozen Democratic members of both chambers said they were exploring ways to insert language into all new pieces of legislation to empower agencies use their expertise to enforce the law, as they’ve done in the past.

“I think there’s no doubt any time we pass any law we’re going to have to clarify its implementation,” said Sen. Brian Schatz (D-Hawaii), a key lawmaker on climate and environmental issues.

In a Republican majority, Democrats could attempt to insert such language as amendments. If Democrats retake control of the House or Senate next year, they could attempt to put the text into underlying bills off the bat.

David Schutt, the executive director of the House Sustainable Energy and Environment Coalition, said he was already working on possible “boilerplate” language.

“I do think this could have an impact on environmental regulation more than other spaces,” he said of Chevron, “because environmental regulation has had such a target on its back for so long, and this [Supreme] Court seems to be particularly antagonistic to this sort of regulation.”

Such efforts, however, would almost certainly require a filibuster-proof majority in the Senate, a scenario that seems unlikely for the foreseeable future.

A ‘profound’ change

Other Democrats were throwing out other ideas this week about how legislating could change following Chevron’s defeat and how best to respond.

Rep. Scott Peters (D-Calif.), a former environmental attorney, suggested Congress could find itself in a position where it is having to vote on environmental standards set by the agencies. He used the EPA standards governing drinking water as an example.

“It doesn’t make sense for Congress to have the expertise that the EPA has, or the Department of Interior,” Peters said. “The question is whether a part of our role will be to annually approve their standards. It could be pro forma, because Republicans want clean water, too. It may not be controversial.”

“I don’t think anyone’s appreciated how profound this change might be,” he added.

Sen. Sheldon Whitehouse (D-R.I.) said perhaps a bill could be introduced that would amend the Administrative Procedures Act: “Where a competent agency has made a factual determination or a policy determination that is connected to their area of expertise, then courts applying this law should give you deference to their expertise.”

Democrats are also prepping bills that would essentially reverse the Supreme Court verdict.

Sen. Richard Blumenthal (D-Conn.), said introduction of his bill would be “fairly imminent,” likening his approach to how states codified Roe v. Wade after the Supreme Court struck down the decades-old abortion ruling two years ago.

Already, in the House, Congressional Progressive Caucus Chair Pramila Jayapal (D-Wash.) has a bill, the “Stop Corporate Capture Act.”

Jayapal introduced the bill in March 2023 but attracted 29 new co-sponsors following the court ruling. She described it in a statement last month as “the only bill that codifies Chevron deference” and “ensures that rulemaking is guided by the public interest — not what’s good for wealthy corporations.” It has the support of the League of Conservation Voters.

Republicans are pursuing a legislative route, too, to achieve the opposite effect: The “ unveiled by Rep. Mark Green (R-Tenn.) and others moments after the Supreme Court decision came down, would codify that ruling.

It’s not likely any of these bills will be considered this year.

In the nearer term, Westerman said he was thinking about the Chevron decision’s effect on the Endangered Species Act. A updating the law was the subject of a hearing in a Natural Resources subcommittee Tuesday.

“Enough lawyers over time have figured out how to take the law and twist it into something it’s not,” he said, pointing out that while “the purpose of the Endangered Species Act is to recover listed species,” only 3 percent of listed species have been recovered.

Instead, as Westerman argues in his draft bill, the federal government should delegate that authority back to the states, “so that people in the communities where these endangered species live are actually working to create the habitat and conditions for the species to thrive — not being told by some bureaucrat in DC what to do.”

Reporter Lesley Clark contributed.