One day before the Supreme Court last month erased a long-standing precedent requiring deference to federal agencies’ technical expertise, a separate high court ruling showed that neither top jurists nor a team of elite law clerks necessarily get basic facts right.
The timing was awkward.
In the court’s 5-4 opinion that stayed an EPA smog control rule, Justice Neil Gorsuch repeatedly confused nitrous oxide, often known as laughing gas, with nitrogen oxides, the class of compounds that help form smog.
A corrected opinion was soon issued. A Supreme Court spokesperson did not respond to a query asking how the error found its way into Gorsuch’s majority opinion.
But Renée Landers, a law professor at Suffolk University in Boston, described the episode as “a cautionary tale about judges biting off more than they can chew.” On deciding complex technical and scientific matters, Landers added, “Maybe courts aren’t the right place to be doing this because most judges aren’t technical experts.”
That prospect is now looming, however, with the high court’s decision in June to end the Chevron doctrine, which said judges should defer to expert agencies’ reasonable interpretations of ambiguous federal laws.
“Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority,” Chief Justice John Roberts wrote for the majority in a 6-3 opinion in Loper Bright Enterprises v. Raimondo.
While legal scholars are still parsing the potential impact of Loper Bright, Roberts’ majority opinion has been viewed as an attempt to wrest decisionmaking power from scientists and technical experts at agencies like EPA and hand it to generalist judges.
That concern was voiced by Justice Elena Kagan, writing for the liberal minority in Loper Bright.
“Today, the Court flips the script: It is now ‘the courts (rather than the agency)’ that will wield power when Congress has left an area of interpretive discretion,” she wrote. “A rule of judicial humility gives way to a rule of judicial hubris.”
In a court filing earlier this month, for example, industry opponents of strengthened EPA air toxics rules argued against deference to the agency on two points on the grounds that federal judges had already weighed in with their own interpretations. The agency has since responded that the challengers are overlooking “statutory text and design.”
But Loper Bright could also spotlight judges’ readiness — or lack thereof — to deal with abstruse technical matters. It was a gap that Supreme Court Justice Antonin Scalia cheerfully acknowledged during 2006 oral arguments in the landmark climate case Massachusetts v. EPA.
After Scalia mixed up the scientific terms for two distinct layers of Earth’s atmosphere, James Milkey of the Massachusetts attorney general’s office offered a friendly correction.
“Respectfully, Your Honor, it is not the stratosphere. It’s the troposphere,” Milkey said, according to the transcript.
“Troposphere, whatever,” Scalia replied. “I told you before I’m not a scientist.”
By a 5-4 margin, the court ultimately sided with Massachusetts in agreeing that the Clean Air Act gave EPA the authority to regulate tailpipe emissions of carbon dioxide. Scalia dissented, with a nod to Chevron deference.
“EPA’s interpretation of the discretion conferred by the statutory reference to ‘its judgment’ is not only reasonable, it is the most natural reading of the text,” he wrote.
New power for the courts
Recent rulings from the lower courts demonstrate the power that individual judges already wield — and how they could become even more muscular in a post-Chevron world.
In one recent case, Judge James Cain of the U.S. District Court for the Western District of Louisiana appeared unaware of research showing that people of color are disproportionately more likely to be exposed to harmful air pollution.
“My last check, pollution doesn’t really discriminate based on race,” Cain said during oral arguments in January as the Louisiana attorney general’s office sought to definitively block an EPA civil rights probe into the state’s Clean Air Act permitting practices.
“It pollutes whoever’s, you know, there,” he added, a transcript shows.
Even though EPA had already closed its investigation with no finding of discrimination, Cain soon after issued a preliminary injunction blocking the agency from considering the racially “disparate impact” of permitting decisions in Louisiana.
Cain, an appointee of former President Donald Trump, has overridden other technical assessments by the executive branch.
Earlier this month, he undid the Department of Energy’s freeze on new liquefied natural gas export approvals, writing that Congress had determined those shipments “are presumptively in the public interest.” In 2022, he temporarily stopped agencies from using a Biden administration yardstick of climate change risk — a decision that a federal appeals court later overturned.
Republicans have been similarly frustrated by liberal district court judges who have the power to single-handedly stop federal rules on the environment and other key issues.
Landers said there is danger in placing the fate of public health and climate protections in the hands of individual judges — especially when they may not have the scientific chops to second-guess expert agencies.
“Judges should approach the task with some humility,” she said.
The role of judges
Supporters of Chevron’s demise say the new legal landscape simply pushes courts and agencies into their correct roles.
Judicial deference to agencies’ factual findings is one thing, said Jon Riches, vice president for litigation and general counsel at the Goldwater Institute. But courts should not be deferring to agencies on legal questions about the meaning of federal statutes, he continued.
“That has nothing to do with agency expertise at all,” he said. “A court’s whole job is to decide the law.”
John Vecchione — senior litigation counsel at the New Civil Liberties Alliance and one of the lawyers behind Loper Bright’s companion case, Relentless v. Commerce — said he doesn’t expect the Supreme Court to be hostile to agencies’ “real expertise.”
He pointed to a passage in Kagan’s dissent in Loper Bright that said the court has deferred to the Fish and Wildlife Service on what constitutes a “distinct population segment” of the western gray squirrel when crafting endangered species protections.
“This idea that courts with all these liberal arts majors who took government and English and stuff are going to be saying, ‘No, that’s not how DNA works,’ is something I’m highly skeptical of,” Vecchione said.
He added: “I think it’s going to be more in this vein where the administrative agency wants to do something that Congress itself had not done in the statute.”
Reporter Lesley Clark contributed.
