What does the Supreme Court's Chevron decision mean for a potential second Trump term?

Experts say the high court's decision — and another on Monday in the Corner Post case — will put scores of federal regulations in jeopardy. Could there be a silver lining for progressives?

The U.S. Supreme Court, photo courtesy Flickr user R Boed

There may have been very few environmentalists partying in the streets 40 years ago when the Supreme Court first established the legal doctrine known as Chevron deference, which was repealed by the high court last week (you can read our story on what the court ruled, and what Chevron was right here if you’re unfamiliar). But feelings about the doctrine certainly changed, illustrating the sometimes unexpected impacts of judicial rulings.

The high court’s decision to toss Chevron — coupled with its hugely consequential Corner Post decision from Monday — likely poses a big threat to environmental and other administrative rules, but this story takes a look at things from a slightly different perspective. Tell us what you think in the comments!

Legal experts have warned that last week’s U.S. Supreme Court decision killing the foundational Chevron deference legal precedent will stir chaos in the courts, emboldening a wave of litigation challenging an array of federal environmental rules that aim to combat the climate crisis.

But some say there may be a silver lining for progressives in the news, even if it’s slim.

Chevron, in which courts generally deferred to expert agency interpretations of unclear or ambiguous terms and phrases in laws, didn’t just afford Democratic presidential administrations leeway to set stricter pollution limits. It was a double-edged sword that gave Republican administrations room to relax rules, too.

And that could mean at least some headaches or legal roadblocks should a Republican like former President Donald Trump — whose first term in office gutted environmental protections, and whose second term would likely take things further — take over the White House.

“The harmful ruling will cut both ways: future administrations eager to deregulate will confront the sobering reality that the best interpretations of regulatory environmental laws do not support deregulation,” John Walke, an attorney at the Natural Resources Defense Council, told Landmark. “So the new judicial regime will thwart environmental rollbacks — but the greater harm from the decision remains fewer protections for Americans, the environment and climate.”

The big picture thinking behind the sentiment is that environmental laws like the Clean Air Act, the Endangered Species Act or the Clean Water Act are written and oriented toward agency rules that protect the environment, not the other way around. So it may be harder to justify deregulation when reading those texts.

Walke said there are “myriad exemptions, exclusions, loopholes and divergences from more protective laws” that progressive groups may challenge in court in the absence of Chevron.

“Environmental and public health groups will demand that regulations by EPA and the Energy and Interior Departments reflect the best interpretations of their governing laws, by targeting future and existing rollbacks in those regulations,” he said.

One need not look much further than the original Chevron decision from 1984 to see the doctrine benefiting industry. In that case, environmentalists challenged a Reagan administration rule that interpreted the term “stationary source” in the Clean Air Act as referring to an entire industrial plant, instead of a plant’s numerous individual smokestacks.

The stakes were high: The more straightforward definition championed by environmentalists could have meant power plants would need to spend more on upgrades. But the Supreme Court said that the courts must defer to reasonable agency interpretations of law, handing industry a key win.

In the decades since, the Chevron doctrine grew into one of the most-cited legal doctrines in U.S. history. But legal experts say it was somewhat policy neutral, allowing more environmentally friendly administrations to expand protections under keystone environmental statutes while pro-industry administrations moved in the opposite direction.

"The truth is the Chevron decision has been a mixed bag for the environment because deference to agency interpretations of environmental laws is only helpful if the agencies are trying to protect the environment," said Chad Hanson, a forest ecologist with the Earth Island Institute’s John Muir Project.

Hanson said the Chevron doctrine has made it more difficult to challenge U.S. Forest Service logging approvals, regardless of which administration approved them.

"The Chevron decision has for decades made it easier for the Forest Service to get a pass from courts on destructive logging projects, even when they are breaking the law and being dishonest about the facts," he said.

It’s worth noting that not everyone in the environmental legal community is as optimistic that the loss of Chevron will have this silver lining. And that’s especially true after the high court issued its ruling Monday in the Corner Post case, further threatening the stability of administrative rules by changing the statute of limitations for challenging them (i.e. basically making it possible for any newly-formed company to challenge very old rules, since the rules only started impacting them once the new company came into existence).

During a press conference on Friday, Earthjustice senior vice president Sam Sankar was asked whether things might not be so bad. He pushed back forcefully on the idea.

Sankar said a second Trump presidency could deal a lot of damage to environmental regulations as they are challenged in the wake of Chevron, since the administration could basically agree with industry challengers that they are problematic and ask the courts for a chance to take a new look at whatever issue is before them.

And the NRDC’s David Doniger added that defending rules against repeal is one thing, but the climate crisis requires urgent action.

“You don't get new protections issued that way,” he said. “So if you have new problems like climate change [or] new problems like the next pandemic and a hypothetical second Trump administration mishandles them … it's pretty darn hard to get the courts to force that action. That was true before and it's even more true now.”