The U.S. Supreme Court issued a huge decision late last month that removes power from all federal agencies, and the results are sure to be consequential, in Alaska and all over the country.
The case is called Loper Bright Enterprises, and here to explain the potential implications for Alaska is Alaska Public Media Washington Correspondent Liz Ruskin.
Listen:
This interview has been lightly edited for length and clarity.
Casey Grove: Liz, if people have heard anything about this case it’s that the court has thrown out the doctrine of Chevron deference. What was the Chevron doctrine?
Liz Ruskin: The term comes from a 1984 case, Chevron vs Natural Resources Defense Council, and what it said is that when Congress passes a law that is ambiguous, the federal agency’s interpretation stands, as long as that interpretation is reasonable.
To break that down a bit, Congress passes ambiguous laws all the time. They can’t foresee every possible situation where a law might apply. Or maybe they can’t reach political agreement on all the details. So then it’s up to federal agencies to interpret those laws when they issue regulations and make decisions. And then someone sues and says, that’s not how I read the law. The judge may find that the agency’s interpretation isn’t the only one, but it’s reasonable, and under Chevron deference, that means the agency wins.
CG: So this new decision takes Chevron deference away. How is a judge supposed to decide now?
LR: That is the big question. I asked a few lawyers about this and they said that the post-Chevron world moves a lot of decision-making authority from the agencies to judges. And no one is quite sure how a judge will decide who has the best interpretation.
CG: That would seem to give a big advantage to people who think federal agencies have too much power, or to industries who are fighting regulation.
LR: Yes, that’s the general view of it. But I talked to Bridget Psarianos about this. She’s an attorney at Trustees for Alaska, a law firm that represents environmental interests. Before that, she worked at agencies in the Interior Department. She says this could cut both ways, because sometimes an agency approves a project on federal land and attorneys like her go to court and challenge it, and then they’ve run into Chevron deference. A judge could say, ‘Yes, you have a point but the agency wasn’t acting unreasonably when they gave a green light, so the agency wins.; And now deference to the agency is gone. Here’s Psarianos:
Bridget Psarianos: I do think there’s potential for it to cut both ways. And I think a lot of it will depend on the facts of every case, and what political agenda a certain agency has at at any given time, which is all tied to who’s in the White House, for the most part.
CG: I could see this playing out in a lot of different ways, but one case you wrote about this week comes to mind. The North Slope Borough and Arctic Slope Regional Corp. are part of a group that sued to overturn environmental restrictions in the National Petroleum Reserve-Alaska. You said this new decision gives their challenge a boost.
LR: Yes, and I believe that case was filed the same day Loper Bright was issued, if I’m not mistaken. The state of Alaska and ConocoPhillips just filed companion lawsuits. The Conoco brief specifically cites Loper Bright, saying it’s now up to the courts to decide whether a law means what the agency says it means.
But Casey, this goes way beyond resource development, and all over the nation. Whitney Brown gave me a good idea of the scope of how big this is. She’s an attorney at Stoel Rives. She has represented Conoco, but it was one of her colleagues at the firm who brought the Petroleum Reserve case we were just talking about. Here’s what she said about the big picture:
Whitney Brown: Federal Agency regulations govern food safety, drug safety, resource development, financial markets, transportation, immigration, healthcare — you name it. And future rules may address climate change or how we use artificial intelligence. And under Loper Bright, courts will have the last word on how issues related to all of these subjects, no matter how technical, will be decided.
LR: Casey, she added that Loper Bright removes the deference that agencies had when interpreting ambiguous laws, but not on factual matters. So an agency is still going to the subject matter expert when it comes to, say, research its scientists have conducted. At least, I think so. Everybody says we’re in new territory now and there’s a lot that we aren’t going to know for years to come. Here’s how the first attorney we heard from, Bridget Psarianos, put it:
BP: There’s just so many things that federal agencies do for us every day. And I think, determining how they’re going to go about business differently and how that’s going to trickle down to the greater public is — yeah, I think it’s something that, you know, our kids will still be grappling with.
CG: OK, so we may learn more in the future about how these things are decided. By the way, Liz, I heard that you were in the Supreme Court to hear arguments for this case back in January.
LR: Yeah, I had heard the case, Loper Bright, was about herring fishermen suing over regulations. So I thought, “Oh, it involves fishermen, maybe I should go. Alaska fishermen would probably be interested.” And then by the time I got into my seat in the Supreme Court, I’d read the briefing materials and I realized this was way way bigger than the fishing industry.
Liz Ruskin is the Washington, D.C., correspondent at Alaska Public Media. Reach her at lruskin@alaskapublic.org. Read more about Liz here.
