by MEA Executive Director Tony Wilkin Gibart
In a much-talked-about decision in Loper Bright Enterprises v. Raimondo, the US Supreme Court recently overturned a longstanding legal doctrine called Chevron deference. This forty-year-old doctrine held that when a lawsuit hinged on an ambiguity in the law, federal courts were required to defer to the interpretation of the government agency charged with implementing that law.
On one level, it is surprising that the decision, which started as a dispute about fees for herring boat operators, would garner any attention, much less be called a “blockbuster.” However, this seemingly wonky decision is about much more than the mechanics of administrative law. It is part of a larger pattern in which the US Supreme Court continues to take more and more power for itself and uses that power to weaken the government’s ability to protect the environment, public health, and the rights of everyday people.
The Loper decision eliminating Chevron deference follows a series of recent Supreme Court decisions that similarly limit the government’s ability to address critical policy problems like climate change, student loan forgiveness, and pandemic response. These decisions rely on the major questions doctrine, a controversial principle of statutory interpretation that invites a court to overrule a government agency’s implementation of federal law when the relevant issue is of “vast economic and political significance.” Under the major questions doctrine, the court sets an artificially high bar and requires Congress to pass another more specific law to authorize the policy response.
Going forward, the outcomes of cases that affect the health, safety, and prosperity of millions of people are likely to turn not on the law as written, but on a judge’s subjective feeling that the policy issue is especially significant. Ironically, if the judge believes the problem is significant, the major questions doctrine stops politically popular policies meant to address big problems in their tracks, weakening the government’s ability to respond and promoting gridlock.
Another example illustrating the pattern is the US Supreme Court’s recent determination in Corner Post v. Board of Governors of the Federal Reserve System that there is effectively no statute of limitations on the ability to challenge longstanding regulations, as long as a new business can claim that it has been recently harmed. Through this decision, in combination with the court’s aggressive use of the major questions doctrine, the end of Chevron deference, and other decisions, the US Supreme Court has rolled out a welcome mat for special-interest groups that want to strike down environmental, public health, and other protections and instead have the conservative supermajority on the Court be the arbiter of federal policy in these critical areas.
Here in Wisconsin, many of the anti-government ideas the US Supreme Court is now adopting have been written into state law by an unaccountable legislature. The legislature made it illegal for state agencies to even argue that courts should defer to their expertise, and it inserted provisions similar to the major questions doctrine into our state’s administrative procedures act. It also created the REINS Act, a one-sided law that prohibits any regulation that might exceed an arbitrary compliance cost threshold, regardless of the benefits – regardless of how many lives they might save, to take the most obvious benefit of many regulations.
These developments have slowed our state’s response to significant public health issues and emboldened special interest groups to launch legal attacks on the power of agencies to implement longstanding environmental and public health laws. Right now, Wisconsin Manufacturers & Commerce (WMC) is asking the state courts to upend a state law that prohibits the release of hazardous substances, like PFAS, into the environment. WMC is likewise litigating to strike down another law that requires large livestock feeding operations to apply for permits before producing and spreading millions of gallons of manure.
While the prospects of checking the power-hungry US Supreme Court might seem distant right now, the prospects on a state level to fight back are much brighter. Just in the last year, we have seen the return of fair maps in Wisconsin, which means the legislature can no longer pass destructive policies without consequences. Future legislatures are more likely to be responsive to the needs of Wisconsinites and should repeal the many administrative law changes that have weakened a state government that was once a model of effective, progressive policymaking. Also, unlike on the federal level, our state supreme court is elected and accountable to the people. Our state courts must reject special interest attempts to carve back the laws that have safeguarded Wisconsin’s environment for decades.
Because of what the US Supreme Court has done, it will be even more difficult for federal agencies like the EPA to respond to the pressing environmental issues facing Wisconsin. For that reason, it is critical that we restore the ability of our state government to protect Wisconsin’s natural resources and the health and wellbeing of the people who call this place home.
