The Supreme Court has put environmental protections under threat — issuing decisions that limit the power of agencies like the Environmental Protection Agency (EPA) to combat climate change and pollution.
Two of the court’s recent rulings, both of which were decided 6-3 along ideological lines, could have a far-reaching impact on agencies’ ability to make and defend rules governing greenhouse gas emissions as well as air and water pollution.
Stan Meiburg, who was the EPA’s acting No. 2 official under the Obama administration, said people should be “very concerned” about the implications of the decisions and how they impact the government’s ability “to respond to real crises that we are facing right now in our environment.”
Last week, the court struck down a legal precedent known as the Chevron deference that instructed judges to defer to federal agencies in cases where the law is ambiguous.
The elimination of that doctrine means that in close-call cases, judges are more likely to substitute their own interpretation of the law instead of a federal agency’s, making it more likely that an agency action will be overturned.
On Monday, the court also gave opponents of federal rules more opportunities to challenge them in court, extending the time a rule’s opponent has to sue over it. In practice, this is expected to enable new companies to challenge rules previously believed to be long settled.
Friday’s ruling overturning the Chevron deference raised significant alarm among environmental advocates.
Although the ruling technically applies equally to administrations of both parties, Sam Sankar, senior vice president of programs for Earthjustice, described it as “deeply deregulatory,” particularly given the conservative makeup of the judiciary.
“This court is saying we get to read the statutes in the first instance, not the agencies. We’re the ones who resolve ambiguities. We don’t listen to the agencies, except as, you know, third parties in litigation. And this is a profoundly conservative court that reads statutes as narrowly as possible,” Sankar told reporters.
“The federal government and environmental groups are going to be up to our ears in litigation, just trying to preserve the status quo, and the industries and the right-wing groups that support them are going to be throwing everything they’ve got at this tool to try to make hay with it,” he said.
Sanjay Narayan, a managing attorney with the Sierra Club’s Environmental Law Program, said the Chevron decision also upends the historical deference to technical and logistical expertise within agencies.
“What that means, I think, is that this decision is likely, even in small, everyday ways, to undermine the effectiveness of a vast array of policies,” he said in a call with reporters.
Meiburg, the former EPA official, believes the Monday ruling allowing for later legal challenges could be even more consequential.
“It does seem to create an endless opportunity for no regulation to be ever settled,” he said.
“They basically said, ‘Well, there’s no statute of limitations. [It] doesn’t run out until the injury actually occurs’ and all you have to do is to create a new company and say, ‘Oh, we’ve been injured’ and then you can reopen almost any rule,” he added.
Meiburg said regulations that are particularly vulnerable include longstanding limitations on how much air or water pollution an industry can release, including restrictions on hazardous air pollutants.
Meanwhile Nina Mendelson, a professor at University of Michigan Law School, said that in light of recent rulings, she doesn’t believe that one particular type of environmental regulation is more vulnerable than another, stating that “they’re all vulnerable.”
“The message here is agencies can get sued even decades later, and they have to prepare for a gotcha game in the courts, both on their detailed analysis of highly technical questions and on their best efforts to offer an interpretation of the law that makes sense and that is true to Congress’s purposes in enacting the law,” Mendelson said.
This is particularly true, she said, in light of a third ruling last week, which halted the Biden administration’s cross-state air pollution rule.
“One of the reasons why the rule was stayed is because the court felt that EPA had not adequately addressed a particular concern raised by challengers … even though EPA had gone to extensive efforts to address many concerns around the rule, and even though the particular issue … had not been presented directly to the agency,” Mendelson said.
“That tells agencies ‘be prepared to have to fight lawsuits about nitpicky issues that you may never have … heard about before,'” she added.