Paul Tonko in 2022. Photo: Anna Moneymaker/Getty Images
House Democrats are teaching their staffs how to write energy and climate legislation in a legislative world after Chevron deference.
Why it matters: The Supreme Court's decision in the Loper Bright case put fresh limitations on Congress' ability to delegate powers to agencies, which threatens to upend hard-fought climate regulations.
- Democrats spent a lot of time messaging against the decision and introducing bills to reverse it. Now they're turning to the post-Chevron reality.
Driving the news: The House Judiciary Committee and Sustainable Energy and Environment Coalition are both holding events with staff and NGOs on how to write bills post-Chevron, according to aides and lawmakers involved.
- Democrats would ideally add boilerplate language specifying that agencies should have interpretive deference. But it's not clear that would be viable in the courts.
- Instead, they'll likely have to take things on a case-by-case basis and use more narrowly tailored deference language in climate bills.
- "We as legislators now need to operate in this new reality and recognize that how we write laws needs to change," SEEC Cochair Paul Tonko told Axios.
Zoom in: Judiciary is holding a briefing Tuesday in hopes of encouraging staff to come to the committee early in the bill-writing process, or use resources like the Congressional Research Service to iron out Chevron concerns, a committee staffer told Axios.
- SEEC, Tonko said, "has taken a particular interest in making certain that our members … and their staffs are trained."
- Tonko said part of the Hill's response should be to hold "an immense amount of legislative hearings" and write more amicus briefs.
- That could make legislative intent clear when lawmakers use wording like "in the administrator's discretion" or "upon a determination by the secretary" in legislation, he said.
What we're watching: EPA regs will be put to the test post-Chevron, but there are also implications for Treasury's implementation of IRA tax credits.
- And there are outstanding questions about how this will mesh with other SCOTUS opinions on the Administrative Procedures Act and the major questions doctrine.
- As Sen. Sheldon Whitehouse pointed out: "You can take away Chevron deference, and that still leaves a lot of congressionally delegated authority in these agencies."
The bottom line: Congress isn't likely to pass a giant new regulatory law anytime soon, but the implications of Loper Bright could trickle into much of what lawmakers do.
- "It's something we're going to have to think about a lot in the years ahead," Rep. Jared Huffman, a former NRDC attorney, told Axios.
- "There's some uncertainty about what this new court ruling really means in practice, but I think legislators and regulators are all going to have to adapt."
