In a post-Chevron America, what role will the EPA serve?

The recent reversal of the Chevron ruling and subsequent overturning of the Chevron deference in June has left many questioning the government’s future role in environmental regulations. More specifically, lots of uncertainty has been surrounding, not only the role, but the very existence of the Environmental Protection Agency, or the EPA. 

The Chevron U.S.A. v. Natural Resources Defense Council ruling created an important legal precedent: “If federal legislation is ambiguous or leaves an administrative gap, the courts must defer to the regulatory agency’s interpretation,” providing that interpretation is “reasonable.” This precedent, called the Chevron doctrine or Chevron deference, has been cited countless times since its establishment in 1984 and has been fundamental in upholding regulations from laws like the Fair Labor Standards Act, the Clean Air Act, and the Affordable Care Act. Many past EPA regulations have been possible because of ambiguities in the Clean Air Act. 

Experts say that without the protection of Chevron, it’s likely many past EPA actions, especially those made under the Clean Air Act, will face legal challenges.  How will the elimination of this historic precedent affect the EPA? 

Firstly, the EPA is not currently in danger of being abolished. The agency’s “foundational legal obligation to regulate climate-warming pollution” is not at risk due to protections explicitly stated in a 2007 Supreme Court decision and in a 2022 Democrat-led piece of legislation, which was passed in anticipation of challenges to the Chevron doctrine. However, its authority is uniquely vulnerable in a way America has not seen since 1984. 

Power previously reserved for the executive branch and distributed to federal agencies has now been given to a heavily polarized judicial branch, one that often lacks the expertise of the specialized federal agencies. At the time of the original Chevron ruling, “it was widely perceived in legal and political circles that judges in lower federal courts were inappropriately crafting policy by deciding for themselves what certain laws meant, effectively substituting their own ideas for the discernment of agency experts,” notes David Doniger, a lawyer who argued the Chevron case for the NRDC in 1984. Now that Chevron has been overturned, the risk of substituting personal opinion for agency expertise returns, this time amplified by the increased level of political polarization present in the judiciary. 

Although the EPA’s existence does not face imminent danger, many of its regulations are newly endangered. For example, the EPA’s regulations stemming from the Clean Air Act’s provision that limits how much air pollution states can allow drifting into bordering states (otherwise known as the “good neighbor” provision) have been historically protected by Chevron deference, and are now not only at risk of, but quite likely, to be significantly loosened. 

Furthermore, the Biden administration’s climate rules–some of the most ambitious environmental regulations in American history–are at a heightened risk. Semi-recently announced regulations focused on “cutting pollution from cars, trucks, power plants, and oil and gas wells” have been conducive to achieving Biden’s goal of reducing nearly 50% of greenhouse gas emissions by 2030. These major milestones in the American efforts to reverse climate change now face possible erasure without the protection of the Chevron doctrine. According to the New York Times, as of Chevron’s reversal in late June, “all of the Biden climate rules have already been the target of lawsuits that are winding their way through the courts.” 

While this information certainly sparks concern, it should be noted that simply because a regulation has been legally challenged doesn’t mean it will be eliminated. Many recent EPA regulations don’t even cite Chevron, due to longheld speculations that right-wing officials were targeting the doctrine and it was in danger of being overturned. These regulations would be tough to eliminate; “Rules that don’t cite Chevron won’t be ‘automatically undercut’... -at least not in the lower courts,” Doniger told Politico. Even for EPA regulations that use the Chevron deference, any legal challenge would have to prove that the agency’s “scientific and technical conclusions are ‘so out of line with the factual record’ as to warrant the court’s intervention.” 

The result of Chevron being overturned will not be the end of the EPA or the end of all existing EPA regulations. However, it’s likely that many existing regulations, along with any new ones, will be forced to be looser and ultimately less effective. 

In these confusing and rapidly changing times, it’s easy to feel helpless. What’s the point of individual action if it’s not accompanied by the right policies? That’s why the best thing you can do to protect our environment, our country, and our world–is to vote. The judicial branch now has the power to accelerate or reverse climate change, and judges are appointed by elected officials. The most important thing you can do is to educate yourself on the environmental policies of those running for office and to vote at every level–local, state, and federal!