Chevron Rule Decision Holds Weight for Clean Air Act Regulations

The US Supreme Court heard oral argument on Jan. 17 in two cases that ask the court to overturn Chevron deference—the principle established in Chevron U.S.A., Inc. v. Natural Resources Defense Council that courts should defer interpretation of a statute to an agency when the statute is ambiguous or silent on an issue.

Although predicting the outcome of cases based on oral argument questions is comparable to divining from tea leaves, many observers have concluded that the court is likely to do away with Chevron deference. How the court does so could potentially create confusion and uncertainty under the Clean Air Act and other regulatory frameworks.

The petitioners in Loper Bright Enterprises, Inc. v. Raimondo and Relentless, Inc. v. Department of Commerce launched two basic attacks on Chevron deference. They argued that Chevron deference violates Article III of the Constitution and the separation of powers by taking from courts the duty to pronounce what the law is.

Separately, they contended that Chevron deference is inconsistent with the Administrative Procedure Act. Section 706 of the APA provides that “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”

This provision means courts must decide for themselves what a statute means rather than defer to an agency interpretation, according to the petitioners.

At oral argument, many of the justices appeared inclined toward overturning Chevron deference based on Section 706 of the APA. Much of the discussion revolved around the meaning and implications of this section. A ruling on APA grounds would allow the justices to avoid deciding a constitutional issue. However, such a ruling could also create confusion about Chevron deference under certain regulatory frameworks—particularly the Clean Air Act.

Section 307 of the Clean Air Act sets forth provisions governing administrative proceedings under that act and judicial review of those proceedings. It states that the “provisions of section 553 through 557 and section 706 of title 5 shall not, except expressly provided in this subsection, apply to actions to which this subsection applies.”

Notably, it adopts the APA’s grounds for overturning agency action but doesn’t expressly state that “the reviewing court shall decide all relevant questions of law, [and] interpret the constitutional and statutory provisions.”

A strict reading of the Clean Air Act indicates that the relevant provision of the APA in Loper and Relentless doesn’t apply to Clean Air Act cases. Chevron itself arose under 42 U.S.C. § 7607, which may explain why the Chevron court didn’t grapple with the APA—a point the government may have missed or avoided in Loper and Relentless.

A narrow ruling in Loper and Relentless on APA grounds may therefore raise questions about whether Chevron deference persists in Clean Air Act cases or other statutory frameworks that have similar provisions. This could be rather impactful, given the amount and scope of regulation under the Clean Air Act and ensuing litigation.

Of course, the Supreme Court could draft an opinion that obviates this issue. Or the court will see the problem and decide it must resolve the constitutional question. But it’s also possible the uncertainty that brought Chevron deference to the court will persist under the Clean Air Act and similar regulatory frameworks. Time will tell, but how precisely the court addresses the issue could be significant.

The cases are Loper Bright Enterprises v. Raimondo, U.S., No. 22-451, argued 1/17/24; and Relentless v. Department of Commerce, U.S. No. 22-1219, argued 1/17/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Ryan C. Morris is shareholder at Workman Nydegger.

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