Illustration: Natalie Peeples/Axios
The Supreme Court's pending decision on "Chevron deference" could force Congress to be more prescriptive and create sweeping new hurdles for environmental regulation and IRA implementation.
Why it matters: Loper Bright Enterprises v. Raimondo has implications for climate regulations and all sorts of emerging problems not addressed directly in the nation's bedrock environmental laws.
- The case — which could yield an opinion as early as Friday — is about a fisheries rule but centers on Chevron, a precedent that defers to agency interpretation of the law when the underlying statute is vague or silent on an issue.
Axios asked the Senate's resident lawyers and wonks how the case will affect Congress.
Judiciary Chair Dick Durbin predicted that limitations on Chevron would mean Congress would "have to be more careful in the future."
- He quipped, "We do so little substantive legislation now."
Josh Hawley said he hopes the case forces Congress "to be more specific" in its directions to agencies.
- "It'll probably take a little while, but after a couple of these times where Congress gets burned because the court interprets it differently … I think you'll see Congress start saying, 'Oh, well, wait a minute.'"
- At the same time, Hawley is "skeptical" the court will overturn Chevron: "I wouldn't be surprised if they leave it in place nominally."
Catherine Cortez Masto said the case could make everything more complex because Congress' lack of specificity is sometimes a feature, not a bug.
- "Congress is not always prescriptive, and sometimes that's intentional by Congress," she said.
- She also criticized the conservative justices who have pushed to nix Chevron: "If you've never worked in an agency where you have to take the laws that have been created from Congress and then interpret them … then you're in for a rude awakening."
Shelley Moore Capito said she sees a "big impact" since the case could pile onto the regulatory restrictions spelled out in West Virginia v. EPA.
- "I would say we've got to be more careful about what we write and how we write it."
Sheldon Whitehouse thinks "most of the damage" for environmental regulators was done by the major questions doctrine, established in West Virginia.
- "The Administrative Procedure Act, at the end of the day, allows agencies a lot of leeway where there is adequate record support and where there is a logical connection between the record and the rule."
- Overturning Chevron might not force Congress to be more specific, he said, but it would "add massive incoherence and confusion into administrative proceedings."
John Kennedy said the fundamental issue is that Congress "gave away its power."
- "A big part of the reason Congress gave away its powers is because it didn't want to face tough issues," he said. "If you don't want to face tough issues, you shouldn't be here."
