The headline in Science magazine, for example, asserted that “Supreme Court ruling may threaten the role of science in U.S. rulemaking” and argued that the “ruling means judges should no longer defer to the scientific expertise of those agencies on a vast range of technical questions and, instead, should make such decisions themselves” (emphasis added). Henry I. Miller, writing for the American Council on Science and Health, insisted that Supreme Court “decisions have taken the prudence out of jurisprudence, creating a climate of uncertainty and distrust regarding public policy.” He cited Blair Levin and Larry Downes, who argued that “[t]he judicial veto doctrine multiplies the number of decision-makers and discounts the value of expertise” in an article in the Harvard Business Review.
Chevron deference suffered from at least four faults:
- It was too rigid. Courts were required to apply it and were required to defer to the agencies when Chevron’s conditions were met.
- Too slippery.
- Promoted instability.
- Biased against ordinary people.
Judges can still defer and no doubt will when a statute truly calls for scientific determination.
Courts vs. Agencies
When interpreting statutes (the laws enacted by Congress or the state legislatures), courts implement legislative “intent” rather than making their own policy choices, focusing on the words of a statute and sometimes on its legislative history. Agencies issue regulations that augment statutes, often by providing useful details and by filling in blanks that Congress delegated to the agencies. But regulations may interpret statutes, which is the role of courts, and that is where the conflict arises. The Clean Water Act will show how Chevron deference plays out in practice.
The Clean Water Act
The Act prohibits “the discharge of any pollutant” except in compliance with the act. That phrase is defined as “any addition of any pollutant to navigable waters from any point source” (emphasis added). If Congress had stopped there, the agencies and courts would have had nothing to fight about.
For more than 150 years, the phrase “navigable waters” has meant those waters that are navigable, in fact, and can be used “in their ordinary condition, as highways for commerce.” But Congress didn’t stop there, defining “navigable waters” as “waters of the United States.” What does that mean? A court or agency could decide it meant nothing more than navigable-in-fact waters. [1]
Rapanos vs. the US
Both agencies and the courts have consistently interpreted “waters of the United States” as something more than navigable-in-fact waters. The dispute has been over how much more, in particular, whether wetlands are “waters of the United States.” This was the subject of the Rapanos case, where the Supreme Court split 4-1-4.
- Justice Antonin Scalia, writing for the plurality, concluded that when Congress said “waters,” it did not intend to include wetlands and that wetlands are regulated under the act only when there is “no clear demarcation” between the wetland and adjacent waters.
- Justice John Paul Stevens, author of the original Chevron decision, writing for the dissent, would have affirmed the broad definition of “waters of the United States” in regulations issued by the Army Corps of Engineers and Environmental Protection Agency.
- Justice Anthony Kennedy, writing only for himself, argued in favor of a “significant nexus” test untethered to the words of the Clean Water Act or Chevron deference.
In one of the curiosities of law, federal courts of appeal proceeded to treat Justice Kennedy’s opinion as binding law, as did EPA and the Corps, even though eight of the nine Supreme Court justices rejected it.
Justice Scalia’s plurality opinion was harshly criticized in an editorial by Donald Kennedy, editor-in-chief of Science and former President of Stanford University. In “What’s a Wetland, Anyhow,” he argued that Justice Scalia
“shows no awareness of what hydrologic investigations have demonstrated about the interconnectedness of ground and surface waters.”
Dr. Kennedy, however, showed no awareness that the interconnectedness of waters does not help elucidate Congressional intent. If someone as knowledgeable as Dr. Kennedy did not understand the legal issue in Rapanos, what hope is there that more average scientists would do better?
After Rapanos, the regulations defining “waters of the United States” were revised several times. In 2015, the Obama Administration issued new regulations broadening the definition. In 2020, the Trump Administration issued regulations narrowing the definition, and in January 2023, the Biden Administration issued regulations broadening the definition but not returning it to the Obama definition. No one seriously contends that these changes in the regulations, which radically expanded and contracted the acreage subject to regulation under the Clean Water Act, resulted from changes in scientific opinion rather than changes in political appointees.
Had the Supreme Court applied Chevron deference, this flip-flopping would have continued every time the Presidency changed parties. Instead, the Supreme Court created stability in 2023 when it adopted the conclusions of the Rapanos plurality in its Sackett decision—without applying or even mentioning Chevron deference. Because the Supreme Court has now identified what Congress intended the Clean Water Act to regulate, government agencies can no longer issue regulations contradicting that identification.
Chevron deference is slippery. Justice Stevens liked the agency interpretation in the Rapanos case and applied Chevron deference. But the very next year, when he did not like the EPA’s conclusion that Congress did not intend to regulate global warming under the Clean Air Act—he blew by Chevron deference. And Justice Scalia took the exact opposite position in both cases. If the Supreme Court couldn’t agree on when Chevron deference applied, how could everyone else?
We can now return to the argument that scientists are better positioned to interpret technical statutes. What principle or method would scientists apply to ascertain whether wetlands, which can be dry, are navigable? Or whether dry washes in the desert are “waters of the United States,” as the Corps had insisted before the Sackett case. When the question is what Congress intended to regulate, the answer rarely comes from measurements or experiments.
To be sure, judges will reach the result they want when they care enough about an issue. Judges are human beings. But so are scientists. Judges have one advantage over agency scientists: They provide some balance to the power of a government agency. Agencies tend to want to push the boundaries of a statute to get more control over what they are administering. More importantly, when a government agency is abusing its awesome power over ordinary people, only a court can grant relief.
Chevron deference is now gone, and we’re better off without it. California’s sliding scale seems to provide the appropriate rule: Judges should decide traditional issues of statutory interpretation and should defer to scientists on truly scientific matters.
A longer version of this article appeared here.
[1] Congress used the phrase “waters of the United States” in the 1899 Rivers and Harbors Act, and everyone agrees that the 1899 act applies only to navigable-in-fact waters.
