AUDIO:

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TOM WHEELER:

Welcome to the Econews Report. I'm your host this week, Tom Wheeler, executive director of EPIC, and I'm joined by our climate attorney, Matt Simmons.

MATT SIMMONS:

Hey Tom, how's it going?

WHEELER:

Good. And Melodie Meyer staff attorney at EPIC. Hey, Melodie. And we are also joined by Scott Greacen, attorney...

SCOTT GREACEN:

... conservation director at Friends of the Eel River ...

WHEELER:

You're also an attorney. So we have four attorneys in the room. That's what I'm trying to emphasize here. We are going to try to understand what the heck just happened at the Supreme Court. You've probably heard that they overruled Chevron, an important administrative law case. So we're gonna try to help you understand what just happened and what are the ramifications.

GREACEN:

Important: He means the most important administrative law case of the 20th century. So, yeah.

WHEELER:

No, it's Skidmark -- or not Skidmark, Skidmore.

MELODIE MEYER:

It's because I made that joke.

WHEELER:

Now it's ruined. I'm ruined. Okay. Well, let's begin and I'll stop embarrassing myself.

GREACEN:

Show can only go up from here.

WHEELER:

Yeah, this show can only go up from here. So Scott, what just happened on Friday?

GREACEN:

The Supreme Court ruled in another six to three Republican versus Democrat majority opinion that Chevron, a case decided in 1984, is overruled and stands no more. This is the culmination of a decades-long war waged by the right, especially the corporate right, to undo this case. And it looks like one of the most consequential transfers of power from the legislative and executive branches of government to the judicial branch in American history.

WHEELER:

The facts of the case basically didn't matter to the Supreme Court.

GREACEN:

They'd been undone. The policy at question had been withdrawn. The fees charged to the fishing interests had been refunded. There was no case in controversy.

SIMMONS:

It was just a convenient vehicle for the Supreme Court to throw out the Chevron precedent. So they saw their opportunity, and they took it.

GREACEN:

That's what matters. I think we should talk about Justice Kagan's dissent in some detail, because I think it helps us understand the lack of logic in the majority's opinion. But frankly, I think we ought to start by talking a little bit about where this came from. I would point to one really important document, the 1972 memo that Louis F. Powell, then a lawyer for the tobacco interests in Richmond, Virginia, wrote for the U.S. Chamber of Commerce, outlining a plan to push back on the regulation of business interests and the increasing leftist tendency on college campuses. It's a document that became the outline for the creation of, among other things, the Heritage Foundation, the Federalist Society, and what Hillary Clinton famously at one point called the vast right-wing conspiracy. But a major purpose of this collective effort, funded by billionaires, has been to undo Chevron and to roll back effective regulation across the board in the American economy.

WHEELER:

Well, I think that the story begins even earlier than that. And that's the way that we make rules and regulations in this country and, and the role of the administrative state. So let's go to Lochner. Yeah. Yeah. Well, let's go to the new deal. We are, we are in a modern economy. We are trying to regulate things for worker safety for environment protection. If I'm Congress trying to get into the minutia is going to be impossible, right? I'm going to have to navigate this through two houses, a hundred different Sanders and their opinions.

GREACEN:

Remember that a four-term Democratic president set up a vast array of new, powerful federal agencies to save capitalism from itself. In the depth of the Depression, he said, the federal government has power to do a bunch of things that the federal government had never done before. And the Supreme Court pretty immediately said, uh-uh, buddy, no way. Because that was the Lochner Court. And by Lochner, I mean the court that had grown up under the shadow of the decision in New York v. Lochner that said, you can't regulate businesses to control people's working hours. So, like, the federal government has no role in regulating, like, the vast majority of economic activity in terms of workers' rights. And that kind of wall against federal regulation stood, effectively, until the New Deal and the infamous switch in time that saved the nine, when the Supreme Court finally admitted that, okay, this is now going to stand as the new construction of the federal government. Rather than be reformed.

WHEELER:

So in our post New Deal world, we have a strong administrative state, right? We have Congress that passes broadly written laws that direct federal agencies to then go and create the implementing regulations for these laws. They're often very broad and sweeping. And so it's left to the government, to the administration, to figure out what the heck they ever meant and to create rules and regulations.

GREACEN:

This process was rationalized to a large extent and it had already been worked out how judges respond to agencies in the 30s But in the 40s congress passed the administrative procedures act which regularizes how agencies are to make regulations how they are to give notice to the public collect comment from the public and interested parties on their proposals and then Make regulations that reflect those inputs That's a piece of law that has stood and worked successfully since the middle 40s That's the context really in which all of the Chevron doctrine evolved and was constructed

SIMMONS:

This entire time in the Administrative Procedures Act, Scott, did you read the opinion? Apparently for 40 years, no one had noticed this language that says that APA actually makes Chevron kaput. So.

GREACEN:

Matt's being a comic, but yeah. Let's follow up on that, because that's what Chief Justice Roberts says in his opinion, is that an 80-year-old law makes a 40-year-old doctrine illegal. And we all just noticed it today. Yeah, so Congress has had the chance to say something about this for 40 years, and never has. Has been asked to do so, but declined.

WHEELER:

I guess what I want to get to is this is important in those circumstances in which the law isn't crystal clear, right? When there is a word that can be interpreted to mean multiple things. Which is always. Which is always.

GREACEN:

Often, or inevitable, I think is the way that Kagan points it out, and this is why I want to talk from her dissent in some degree, because she makes, I think, an excellent display of the kinds of ambiguities and gaps that are inevitable in legislative drafting and application.

SIMMONS:

Maybe we should say what Chevron was.

WHEELER:

Let's do the two-step. Oh man. Well, that makes me so sad all of a sudden.

SIMMONS:

That's what happens when you overturn foundational cor-

GREACEN:

So the first question is, is it clear.

WHEELER:

And if it's clear, then Congress's clearly stated intent shall govern.

GREACEN:

And so if the agency's regulation is in accord with that clear statement, you're good to go. If not, then it's overturned. But if you're not clear, if for some reason there's ambiguity, a gap, as Justice Kagan talks about, a place where times have changed, where what Congress said is just a thing that doesn't necessarily admit a single construction, what do you do with that?

WHEELER:

And so that brings us to the second step.

SIMMONS:

That Chevron holding was that in those situations, you defer to the agency because the agency has more expertise in interpreting these ambiguous languages in their field of expertise.

GREACEN:

If it's a reasonable construction. If it's a reasonable construction. So that's the boundaries. Is that a reasonable construction of Congress's intent? And, you know, that's not bad. I would argue that a better standard would be is that a reasonable construction that reflects Congress's intent in passing that law? But, hey, it's a standard and it was applied fairly for 40 years.

WHEELER:

So I think that what this means for society is that we generally have rules that can withstand challenge. We have some permanency in our rules. We have a predictable theory of what the rule of law is.

GREACEN:

You sound like a business guy, Tom.

WHEELER:

Well, I'm trying to make the pro-business case that I think what the Supreme Court just did is stupid and it's going to come back to haunt them because we had this thing that favored settledness, that that favored one way of interpreting the law. And now we have this like new world of it's up to whatever that judge who has the case thinks the law is. So the foundations of our regulatory state are gone. And just what what is the law? Well, it's going to be determined by a lot of lawsuits. This is the full Employment for Lawyers Act or something. Indeed. But. All right. So we have Chevron. Chevron exists to deal with those areas of ambiguity in the law.

SIMMONS:

And just to apply it to that, I feel like most of our listeners aren't lawyers. Sure, yeah. Let's go for it. So in the original Chevron case, the question was what the word source meant, a source of emissions. Stationary source. Yeah. Does it mean one smokestack is a source? Or do all the smokestacks at the factory all together equal a source? Now, I've always thought of that as actually a fair place where there's some ambiguity. Does a source mean the collection of all the smokestacks? Or does it mean each individual? And in those sort of situations, I think that the Chevron opinion, saying we're going to defer to the agency's expertise on this as long as it's reasonable, makes a ton of sense. Why would a judge have more expertise in what the word source means?

MEYER:

In the original Chevron opinion, too, they didn't just automatically defer to the agency, too. They went through the legislative history. And this legislative history supports this interpretation that the agency is meaning. So it was fairly well-balanced, I think, at the time.

SIMMONS:

Now.

WHEELER:

Now, the power has been shifted away from the executive to the judiciary. And I think that there is a constitutional problem with this or a democratic problem with this. Mel, you and I were talking about this earlier. The judiciary is appointed and they serve for life. If we dislike a regulation that has been promulgated by the Biden administration, we have a chance to throw the bum out in the next election and vote in the other party and have some sort of balance in the new administration can go through formal rulemaking processes and reverse the previous regulation. Like there's an ordered system and process to this and it's democratic. There are democratic feedback loops that exist here.

SIMMONS:

Sue to change the law. That's the only way, is to be rich and hire a lawyer.

GREACEN:

I want to dig into Kagan's dissent, and one of the key pieces of that dissent is her deconstruction of how the opinion was built and what it does, and of course one of the key things it does is overturn a precedent, which in general, courts are not supposed to do. There's a principle, stare decisis, the previous decision stands, that's supposed to basically give us that regular law you were talking about.

WHEELER:

Well-ordered system of law.

GREACEN:

Kagan talks about how it contributes to the actual and perceived integrity of the judicial process by ensuring that decisions are founded in the law and not in the personal preferences of justices. She makes it very clear that the way that the court wrote this opinion, the justifications they offer for overturning this precedent, don't come close to what the court normally requires to overcome a settled precedent embedded, as embedded gets, as Kagan writes, in American law. Those factors in this case come down to Roberts saying, oh, it's unworkable. And as Matt has said, this violates the Administrative Procedures Act, which we suddenly determined. The worst of it, though, is that the court points to its own misbehavior, what Kagan calls bootstrapping. She said the court has avoided deferring under Chevron since 2016 because it has been preparing to overrule Chevron since around that time. And she then lists a number of cases where that's happened as well, saying this kind of self-help on the way to reversing precedent has become almost routine at this court. And it's true. And she calls it an overruling through enfeeblement technique. The consequence of this is that we get a decision that isn't based in solid logic. I got to say, reading first the majority opinion and then Kagan's dissent, I was struck by just the way they rang in my ear. And I think Kagan's dissent rings with a clarity, with truth. And I mean that literally. The best legal writing illuminates. The worst, though, decisions like Dred Scott, Plessy v. Ferguson, Lochner, assert just the privileges of power without logic.

WHEELER:

You bring up one of the Conservatives' favorite ways to dismiss stare decisis, which is, well, should we be bound by Dred Scott? Of course not! Gorsuch raises this in his concurring opinion to Dred Scott, and of course we need to overturn things that are just wrong. This is the job of the judiciary to-

GREACEN:

But Gorsuch comes to this having sworn in his confirmation hearing that he had an open mind with an obvious animus, not just for Chevron, but for regulation broadly. Gorsuch has written a number of things that make it clear that he thinks government employees need to be beaten up by the judiciary. Again, I think he's the guy that Kagan's pointing to when she talks about justices' personal preferences. And that's the bad faith argument that we're just getting rid of Dred Scott. No, that won't stand. My point here is that you can hear in the wooden thumpiness of this opinion the same lack of real rigor of adherence to justice that we see in those decisions. The idea that the black man has no rights, the white man is bound to respect, separate but equal. These are sentences that are self-refuting, just like the Administrative Procedures Act bars judicial deference. They're just wrong. And yet the Supreme Court says them so they are law. And that leaves us in a terrible place. I'm half Italian apparently.

SIMMONS:

Why don't you read the grants?

WHEELER:

You are listening to the Econews Report, and we're talking about what the heck just happened at the Supreme Court. All right, so we talked about the transfer of power, but what's wrong with this transfer of power? If we're trying to determine what the law is, isn't the judiciary best equipped to determine what the law is?

GREACEN:

I will go to my grave defending the proposition that Marbury versus Madison was wrongly decided, but, and that's a lawyer joke, but that is what Roberts argues here, is that this kind of construction that agencies have been doing of legislation into regulation is legal reasoning and it's up to the courts to do that because they're the people who know how to do that. But as Kagan makes quite clear, that is not in fact what, you know, the kind of decision making that courts are going to need to do here having taken these decisions away from administrative agencies. And it's far from clear that judges do in fact possess any kind of the relevant kinds of expertise, technical, scientific.

SIMMONS:

Well, OK, so earlier in this term, just to give us a sense of the kind of expertise that the court has in his decision involving the Clean Air Act, Justice Gorsuch filed the majority opinion where he referred to nitrous oxide, a.k.a. laughing gas, instead of nitrogen oxide, which was the actual chemical compound that was being regulated in the decision. And so these justices who have law degrees and not science degrees think that they have more expertise in how to regulate how clean the air should be than the scientists in the federal agencies appointed by and hired by the democratically elected president, right? And so it's this power grab by the judiciary, and it's a power grab by idiots who don't know what they're doing, right? And so it's doubly frustrating because it's

MEYER:

But it's even more frustrating, because they only think they should have expertise in this case, or they only think the expertise is only a question in some cases, whereas in another case, they agree the expertise does belong with other agencies other than or just not the Supreme Court. Because in the Grants Pass decision this past week as well, it was decided that the question of whether or not states should be allowed to, states or cities should be allowed to enforce homeless encampment cleanups, they said, oh, sorry, we don't have expertise to do that part of it.

SIMMONS:

Right, which was interpreting the Constitution, right? Yeah. Cruel and unusual punishment, which feels like at the heart of what the judiciary should be deciding.

GREACEN:

So as Kagan points out, answering these questions, I'm quoting here, answering those questions right, does not mainly demand the interpretive skills courts possess. Instead, it demands one or more of subject matter expertise, long engagement with a regulatory scheme, and policy choice. It is courts, not agencies, that, quote, have no special competence, unquote, or even legitimacy when those are the things a decision calls for. And I emphasize that, quote, in that way, because I think that last point she makes about policy choices, the legitimacy of those decisions, is one she keeps coming back to, and I think is at the heart of the problem, what the court has done in overturning Chevron, in this case, Lover Bright. And it's saying, OK, the agency that had previously decided this question cannot. Instead, the court will decide these policy questions, where values are at stake, where competing ends are at stake. And we are not going to defer to the elected departments in this. We are instead going to impose our own policy preferences. And I'd say that that was a problem when you had activist judges in the Berger court and the Warren court, to some extent. People didn't like that. But oh, boy, now that we have 200 Trump-appointed judges in the 850-member federal judiciary, we are going to have a raft of problems. You guys know about Matthew Kaczmarek, the federal judge in Amarillo, Texas, who's decided that he's the expert on Maffa Pristone. God knows how many other things. It doesn't take a lot of federal judges appointing themselves experts to make a whole lot of trouble.

SIMMONS:

So we should talk about what this means. Every time an agency interprets anything, writes a new rule, which every time you write anything, you're interpreting something. There is no writing of language without some sort of reliance on the interpretation of what those words mean. And ambiguity and miscommunication is just fundamental to language, as even the majority opinion coyly admits.

GREACEN:

Time passes, circumstances change.

SIMMONS:

Anytime that happens, anyone who's impacted, assuming we're still applying standing laws the way that we had until a couple years ago, anyone who's impacted can file a lawsuit, ask their favorite conservative judge in Texas to overturn the rule, and then we're just gonna get years and years of litigation until six conservative Supreme Court justices decide the final rule about everything, not just constitutional issues, right, but about statutory interpretation.

GREACEN:

Here's the thing, though. This rule, what the court has said in Loeb or Bright, doesn't actually give us a standard. It doesn't say what regulations are okay.

SIMMONS:

The dissent says, this probably means Skidmore is the...

WHEELER:

I thought that the majority was somewhat clear that Skidmore still stands.

GREACEN:

But that doesn't mean it's the rule. And my point is that what the majority is saying is regulations we like are cool, and those we don't like won't be.

WHEELER:

Skidmore deference, I think more formally.

SIMMONS:

Respect time.

WHEELER:

It's not different. Oh, excuse me. Yeah. It is with you. You listen to an agency's interpretation and you give it some amount of good due consideration.

GREACEN:

But it's not in the Bible.

WHEELER:

But it's not just, it's not the deciding.

SIMMONS:

Give it consideration if judges are the experts in this legal. It doesn't even make sense on its own

GREACEN:

As Kagan points out, if what the Supreme Court is doing in this case is an example of the kind of logic it will accept in future cases about regulation, then all they have to do is make up facts, assert truths that they understand to be true, the kind of premises that are commonly held among the Federalist Society, the kind of ideas that gave rise to the major questions doctrine, a completely judge-made idea that just came up this past couple of terms, the idea that major decisions affecting the economy require special congressional investment, but other questions don't.

WHEELER:

Maybe I'll take the devil's avocado case here and say that this probably doesn't mean that much of an actual change in our jurisprudence because we have ignored Chevron for quite a while. The Supreme Court again did not successfully invoke it since 2016.

GREACEN:

D.C. Circuit had two cases in 24.

WHEELER:

We've invented all of these other new doctrines, like the major questions doctrine, to do the same thing.

GREACEN:

Major Question Doctrine does not do the same thing. It does the opposite thing. It says, screw regulations. We, the court, say that this has too much impact on the economy.

WHEELER:

My point is that judges have a number of tools, should they want to employ those tools, and they have those tools that prior to this decision to invalidate regulations, and they invalidated approximately 30% of regulations that are in cases that challenge regulations. So maybe we won't see that much of a sea change because this just more what's happening with the law is that we are just now.

GREACEN:

Could you stop being deliberately obtuse?

WHEELER:

We are now just codifying what has already been the practice, which is...

GREACEN:

Nobody believes that. The people who did this don't believe that. They are trying to roll back thousands of regulations. It's not funny. It's a disaster.

SIMMONS:

The argument Tom is making is like, we were already going off the cliff. This is just one more step off the cliff.

WHEELER:

We are already off the cliff, our legs were...

SIMMONS:

to some extent, right? They were already putting holes in Chevron. They already had.

GREACEN:

Yes, we know all that, right.

SIMMONS:

Extra step-off-the-cliff batters, Tom, and we...

WHEELER:

Once again, I said that I would be the devil's avocado here. So these do not reflect my deeply held beliefs.

GREACEN:

What the court has done here is invite challenge from every interest that has the money and wants to challenge a regulation. And now we need to talk about Cornerpost, the case that came down this morning, Monday, July 1st. So in Cornerpost, the court said basically that in challenges to federal regulations, the statute of limitations runs not from the time the regulation was passed, as we previously thought. But, oh, suddenly we learn that it runs from the time that a plaintiff claims injury. So a business that was started long after a regulation was passed can spring up, say, hey, I'm being injured here, and challenge a regulation that has been on the books and settled law for generations.

SIMMONS:

Give a concrete example, right? So there are food safety regulations. You can't have a certain amount of rat feces in your milk or whatever, right? I could start a business tomorrow and say, even though that rule has been on the books since like the 1950s, that, oh, keeping track of all these rats in my milk, my dairy is really hard, and I would like to challenge this rule, please. And as of this morning, the Supreme Court says, oh, that's a new injury to you. Sorry, new business person. You couldn't have known about that tough regulation from the 1950s. Now you get to go forward and have a bunch of litigation, and some wacko Trump-appointed FedSoc judge in Texas is gonna issue an opinion in one of these cases, and we're all just gonna be left wondering what's in our milk. I don't think we're doing a good enough job talking about how fundamentally our entire society has been relying on these protections since the 1930s, right? The majority opinion talks about this like it just happened yesterday, that the New Deal is very new to them, but I, as a 30-year-old, grew up with this expectation that the FAA was gonna keep planes in the sky and that my milk would be safe and that the air would be clean, right? And the Supreme Court today took a shot at all of that, and we won't feel it all tomorrow, but we are off the cliff going down the hill.

GREACEN:

And again, the disconnection between the court's actions here and where the American public is could not be greater. This may be the most illegitimate court in American history. We've seen Democrats win seven of the last eight national elections, and yet we have a far right majority in the Supreme Court that seems determined to keep a democratic administration from functioning. It's very difficult to see how this is going to work unless and until, as Jared Huffman put it on our last show, the fever breaks and we prevail on the Supreme Court and the Republican Party to change.

WHEELER:

Is there anything positive that we can close on here?

SIMMONS:

And so a future Supreme Court can probably overturn this decision fairly quickly.

WHEELER:

We have a good final point, which is this was a somewhat narrower ground than it could have been. They could have adopted what Justice Thomas wanted, which was to find that deference to administrative agency was itself unconstitutional. And instead, what the court found was that this is an interpretation of the Administrative Procedures Act. And so Congress can go back and say, hey, actually, when we're not totally clear, what we mean is that we are giving power to the administrative agency to fill in what is necessary at that time and place. I mean, that presumes that we could have like a working legislative branch, but maybe we can get there. I'm close to abandon all hope ye who enter, but like there is some way that we can work back on this. Because the conservative had their long term federal judiciary plan to rework our courts and rework the American legal system. So to can more progressive environmental folks take a page out of their playbook and start to build the foundation for that long term project.

GREACEN:

I strongly agree, but I want to offer a couple of cautionary notes there. First, I think there is a tiny silver lining in this dark cloud in that the court is throwing open the courthouse doors to challenge regulations. That means that environmental groups that have the money and the time to do it can go after some regulations. Whether you're going to be successful in this federal judiciary, I have some questions.

WHEELER:

But the federal and environmental groups having money, that's also one of the problems that we have.

GREACEN:

Of course but like ...

SIMMONS:

... because that was the whole other defense of Chevron, right,

GREACEN:

Every single and that is going to be a major problem. Again, we've got the court itself takes what 80 cases in a year. It cannot possibly decide all these cases. So as a practical matter, a lot of stuff is going to get done at the district court and the appellate court level. Those are going to get clogged up real fast. And yeah, they're clogged up real bad right now. And if we, as a movement decided to clog up some particular court, we could probably do that, but I think it's really important for us to, as environmental lawyers to step back and have some humility about the fact that these guys have largely accomplished their aims in terms of taking over the federal judiciary and rendering it hostile territory for the kind of work we need to do. As important as the work we do as lawyers is, it's not going to suffice to overcome that power. We're going to have to build political power to do it. That's the only way. And our tools are not the same tools as those of the wealthy of the capital because we're not them. We have to organize among the people. I think it's very, very important that people get very clear about what it is they hold dear and what they're willing to do to protect it because they're coming for you.

WHEELER:

All right. Well, on that cheery note, we'll call this an episode. Join us again on this time channel next week for more environmental news from the North coast of California.