The far-reaching implications of the Supreme Court's decision curbing regulatory power

The Supreme Court has swept aside long standing legal precedent in its ruling overturning the Chevron doctrine, majorly curtailing the power of federal agencies to interpret the laws they regulate. The decision is expected to have far-reaching implications on everything from the environment to healthcare. Geoff Bennett took a closer look with Andrew Mergen.

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Amna Nawaz: Well, meanwhile, the Supreme Court has now swept aside longstanding legal precedent in its ruling today overturning that Chevron doctrine, majorly curtailing the power of federal agencies to interpret the laws they regulate.

The decision is expected to have far-reaching implications on everything from the environment to health care.

Geoff Bennett: For a closer look at the overturning of the Chevron precedent, we’re joined now by Andrew Mergen. He spent three decades as an attorney for the Department of Justice Environment and Natural Resources Division. He now heads the Emmett Environmental Law and Policy Clinic at Harvard Law School.

Thanks so much for being with us.

Thank you Geoff.

Geoff Bennett: And, as Amna mentioned, the Chevron case is obscure, but has a huge impact. It’s basically shorthand for a longstanding tradition that says, if there’s an ambiguous statute, the courts defer to the agencies and their interpretation of how to read that statute because the thinking has always been that the agencies have the expertise.

Today, the Supreme Court said, nope, that’s no longer the case. How big a deal is this?

Andrew Mergen, Harvard Law School: I think in the short term, it’s a very, very big deal.

I think that we’re going to see an enormous number of challenges to government regulations in the environmental area in food safety, in the health care, health care administration. There will be many, many challenges.

And the lower courts and the Justice Department that defends those regulations are going to be very, very busy in the near term.

Geoff Bennett: Do we know how or if this ruling today will affect cases that were already settled under the Chevron precedent?

Andrew Mergen: It’s an excellent question.

The chief justice, in the majority opinion, says that those decisions should not be up for review merely because they depended on the Chevron, on Chevron deference or the Chevron doctrines.

But Justice Kagan, in her dissent, says that’s a very cold comfort. And I tend to agree. This is a very complicated question. It’s sometimes very hard to parse out exactly why courts upheld regulations. And I fear that there will be many, many folks ready to test the limits here and to reopen past regulatory judgments and regimes.

Geoff Bennett: So this could affect everything from clean water, clean air, health care, gun regulations. Give us a sense of the potential real-world impact?

Andrew Mergen: Oh, yes, I think it’s very — in the short term, especially, it’s going to create an enormous amount of instability.

And I think that, again, I think we don’t know how far reaching it’s going to be in terms of unsettling established regulatory precedents in the clear air realm, in the preservation of clean water, a whole slew of environmental and health regulations.

My hope is that the agencies know how to promulgate these regulations in the absence of Chevron deference. And so, going forward, I think they know what is expected of them. But I tend to agree with Justice Kagan that the Chevron doctrine and Chevron deference promoted stability in the law and that there will be a lot of gamesmanship, as we have seen elsewhere, in terms of seeking out favorable courts to sort of upend the longstanding regulatory regimes.

Geoff Bennett: On this matter of the Chevron doctrine promoting stability within the law, conservatives over time came to loathe it because it was mostly Democratic administrations that used this doctrine to justify broad regulations.

And I have spoken to a number of business leaders who have said that it’s not a good thing for economic development or business development when you have regulations that shift as a result of who controls the federal government. What do you say to that argument?

Andrew Mergen: I think it’s right.

I mean, I think that the business community is split on this issue. I don’t think that business interests are monolithic on this. And we see this reflected in other environmental disputes, where some of the car companies are anxious to support EPA and others are skeptical.

One thing for sure is, though, is that if this decision allows agencies — allows challengers to upend prior regimes, we’re going to have a hard time knowing what the law is. And for some folks, that may create opportunities, but for others, trying to plan for the future or trying to figure out what their — how their manufacturing processes can meet environmental laws and things like that, it’s going to be unsettling.

And I do — I do think, as the Justice Department suggested in its briefing, that this has the potential to be, at least in the short term, very, very destabilizing for a whole range of stakeholders, not just people concerned about health and the environment, but also folks in business.

I do think that there is a real need for this kind of deference. Justice Kagan points to some examples. There are just so many things that judges just don’t have the capacity to understand about amino acids or endangered species or manufacturing processes where it makes good sense to listen to the agencies and the expertise that resides in the agencies.

Geoff Bennett: In the roughly 45 seconds, the court reversing a 40-year precedent here, what does all of this say about the Roberts court’s adherence to stare decisis, adherence to judicial precedent?

Andrew Mergen: I think that we have entered into a whole new era with the Roberts court. We saw that certainly in the Dobbs decision and here as well, a desire to — less sort of respect for stare decisis, and more of an appetite for risk in terms of sort of unsettling established law and sort of seeing what happens next.

And I think, to me, that is contrary to sort of traditional rule of law values.

Geoff Bennett: Andrew Mergen, thanks so much for sharing your insights with us. We appreciate it.

Andrew Mergen: Thank you.