In a move that could shift more power to the judicial branch, the US Supreme Court agreed to review a bedrock legal doctrine underpinning a myriad of federal rules and regulations.

The decision, which deals with the high court's decades-old Chevron doctrine, is unlikely to implicate the Biden administration's signature rulemakings on energy and climate, according to legal experts. But a ruling that overturns Chevron could still destabilize decades of settled administrative law, they said.

At issue is the Supreme Court's decision May 1 to consider a legal challenge brought by a coalition of herring fishers who argued that Congress did not intend to "silently empower" the US Commerce Department to require fishing boat operators to directly pay for federal inspectors.

The coalition specifically asked the Supreme Court to consider whether, under a proper application of its two-step Chevron doctrine, federal law gives the National Marine Fisheries Service "the power to force domestic vessels to pay the salaries of the monitors they must carry." The coalition also asked the court to review whether Chevron should be completely overturned or at least clarified to reflect that statutory silence "does not constitute an ambiguity requiring deference to the agency."

The Supreme Court decided to hear arguments concerning only the second question.

EPA implications

The Chevron doctrine arose from a legal challenge brought against the US Environmental Protection Agency over the clear meaning of "stationary source" under the Clean Air Act in Chevron v. Natural Resources Defense Council.

In siding with then-EPA Administrator Anne Gorsuch, the Supreme Court ruled in 1984 that agencies must follow the law when it is clearly written. But the high court also held that deference should be given to agencies when the law is ambiguous, so long as the statutory interpretation is reasonable.

The decision shifted power away from federal judges, giving Congress more leeway to delegate to subject matter experts at federal agencies.

Since then, federal courts have regularly applied a two-step Chevron test in deciding thousands of legal challenges. The first step requires an assessment of whether a law is ambiguous. If it is, courts then proceed to the second step of determining whether the agency's reading of the statute at hand is reasonable and therefore worthy of deference.

In more recent years, however, the Supreme Court has not been relying on Chevron's second step to decide administrative law cases, said David Doniger, who argued the original Chevron case on behalf of the Natural Resources Defense Council (NRDC). Doniger also noted that agencies have been invoking Chevron as a defense less frequently.

"In that sense, there's a lot less reliance on Chevron's step two more recently," Doniger said in an interview.

Doniger, who is now the senior strategic director of the NRDC's climate and clean energy program, said he would not expect a decision overturning Chevron to derail forthcoming EPA proposals to curb greenhouse gas emissions from fossil fuel-fired power plants.

Those regulations, set to be unveiled soon, are being crafted with an eye toward the Supreme Court's West Virginia v. EPA ruling issued in June 2022. In that decision, the court found that the Clean Air Act does not authorize the EPA to set emission limits for power plants that drive broad shifts in the nation's sources of electricity.

In doing so, the court's 6-3 conservative majority invoked a relatively new line of legal reasoning known as the "major questions doctrine" that holds agencies must point to clear authorization from Congress when regulating on matters of "vast political or economic significance."

Congressional Democrats responded two months later by including a provision in the Inflation Reduction Act that clarified greenhouse gases are air pollutants under the Clean Air Act. The Inflation Reduction Act also directed the EPA to issue new greenhouse gas standards.

"We think the EPA is likely to propose new rules soon that track what the Supreme Court said the EPA can do," Doniger said. Those rules will likely be "double-reinforced" by the Inflation Reduction Act's generous tax credits for measures such as carbon capture and green hydrogen, Doniger added.

'Worth remembering the irony'

A Supreme Court ruling that overturns Chevron could have wider implications for existing federal regulations, said Don Goodson, a senior attorney with New York University School of Law's Institute for Policy Integrity.

"It would pose another practical difficulty in how much relitigation that would open up," Goodson said in an interview.

At the same time, Goodson noted that Congress clearly intended to give agencies like the Federal Energy Regulatory Commission broad jurisdiction over areas such as interstate sales and transmission of electricity.

"There are ways in which Congress delegates, unambiguously, broad discretion to agencies, and in my mind, those grants of authority would not be at issue in an overruling of Chevron," Goodson said. "Congress gave FERC the authority to set 'just and reasonable' rates, and the courts have long held that gives FERC wide discretion to set rates within a pretty broad zone of reasonableness."

Several of the Supreme Court's conservative justices have expressed skepticism or outright hostility to Chevron deference, arguing that lower courts have grown too accustomed to giving agencies deference when it may not be warranted.

Justice Neil Gorsuch, the son of the former EPA administrator, has been its most vocal critic. Justice Brett Kavanaugh has called for more limits on agency deference, while Justice Clarence Thomas has questioned whether Chevron is constitutional. Chief Justice John Roberts has also signaled openness to revisiting the doctrine.

Ketanji Brown-Jackson, the court's newest liberal justice, will be recused from the case after participating in the underlying litigation at the US Court of Appeals for the District of Columbia Circuit.

"It's hard to tell what the Supreme Court is going to decide, but I think it's worth remembering the irony here, which is that Chevron was intended to keep lower court judges from remaking policy decisions that Congress deliberately assigned to itself or expert agencies," Doniger said. "Now the court is being asked to tell the DC Circuit judges and other lower courts to reverse course and take these policy decisions out the hands, once again, of the politically accountable."

In a statement, West Virginia Attorney General Patrick Morrisey called the Supreme Court's May 1 decision "an important extension of our work in West Virginia v. EPA and other recent administrative-law cases."

"Congress should pass laws, judges should construe them, and unelected bureaucrats should stick to their job of just implementing those laws — not rewriting them," Morrisey said. "We look forward to explaining over the coming weeks and months why the court should take a step back from Chevron and return power where it belongs."

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