Overturning the Chevron doctrine was a victory for our American democracy

Three years ago, Joe Biden promised to “deliver a whole-of-government approach to the climate crisis.” Part of that approach included “making half of all new cars electric by 2030.”

But in our American democracy, the “whole of government” isn’t charged with setting climate-related policy. Congress is charged with doing this through legislation. And federal courts are charged with interpreting legislation as best they can.

I’m not a “climate denier.” I’m not even a climate change denier. Making half of all new cars electric by 2030 might be an excellent idea.

But in our American democracy, it’s Congress, not the EPA, that’s empowered to force a fundamental shift in American transportation practices. And if EPA claims that Congress has done this, it’s the job of our courts to decide whether that claim is correct — not just “reasonable.”

These obvious points are missing from the shrill denunciations of the Supreme Court’s decision to overturn the Chevron doctrine. Under Chevron, courts deferred to “reasonable” interpretations of statutory language, regardless of whether they found these interpretations correct or the most reasonable. As Justice Gorsuch said in a concurring opinion, all the overturning of Chevron means is that courts will “resolve cases and controversies without any systemic bias in the government’s favor.”

Supporters of Chevron might respond that the government deserves deference (i.e., systemic bias in its favor) because federal agencies have scientific and technical expertise, and federal judges don’t. But, as the Supreme Court explained, granting agencies that deference is inconsistent with the dictates of the Administrative Procedure Act.

And quite apart from APA, there are major flaws in the argument for deference. For one thing, many of the cases in which the government seeks deference have little to do with scientific or technical expertise.

Consider the case that overturned Chevron. It involved a dispute over who pays the cost of having observers aboard fishing boats to collect data relevant to conservation and fishing management. The administrative agency in question decided to stick boat operators with these costs. To me, the questions raised by the challenge to this rule don’t seem to hinge on any particular scientific or technical expertise.

Second, it’s true that agencies possess more scientific expertise than judges as a group. However, judges have more expertise when it comes to determining what statutory language means.

Administrative law cases in which science plays an important role involve a mixture of the two skills — expertise in science and expertise in statutory interpretation. Judges, as noted, possess the latter. As to the former, they can rely on the scientifically-grounded evidence and arguments presented by the parties.

In this connection, I’ll note that most federal agencies are headed by political figures or policy analysts, not scientists. Before issuing final rules in cases where science is the key, these agency heads presumably rely on the science presented to them by agency employees and perhaps consider the science presented in comments by those who oppose the rule.

That’s similar to what judges do when scientific questions are raised. The biggest difference might be that judges hear from, and fully consider, both sides of the scientific argument. Agency heads, maybe not so much.

Third, I doubt that agencies are as “expert” as they claim to be. During the pandemic, it seemed to me that federal (and other) experts were as likely to be wrong about key scientific questions, as to be right.

To be fair, the pandemic was a once-in-a-century event (or twice if AIDS counts). No one really knew much about the deadly virus and how best to stop its spread, though many on both sides of the ideological divide claimed to. Even so, the pandemic should have taught us that government experts are considerably more fallible than they would like us to believe.

Fourth, even if government experts were as wise as they would like us to believe, it’s doubtful that their agency’s statutory interpretations are driven by science, rather than ideology. I spent five years working for a government agency and have litigated against government agencies, including the EPA. I spent decades working with and against expert witnesses, some of whom were serving, or had served, in government.

In my view, what agencies and their experts say is almost always driven by a political/ideological agenda, not by science. Thus, for example, if Joe Biden and his appointees want half of all new cars to be electric by 2030, the scientific judgments of agency experts will be directed towards that goal. Indeed, I’m pretty sure, based on my experience living in the D.C. area for most of my life, that the agency scientists who will render these judgments also favor a major transition to electric cars, as a matter of ideological preference.

Critics of the decision to overturn Chevron might respond that judges often base their interpretation of statutes on their political/ideological agenda. This rejoinder is fair. Judges often do just that.

But sometimes they don’t. It’s not uncommon for judges to signal their disagreement, as a matter of policy, with the outcome their interpretation of a statute yields. Maybe I’m wrong, but I’ve found it less common for agencies to buck ideological preferences.

In instances where judges rule contrary to their policy preference, they typically say that it’s up to Congress to change the law to produce better policy. That’s exactly right.

This is also the right response to claims that the overturning of Chevron “could constrain the U.S. climate response for decades to come.” Congress can enact, without statutory ambiguity, any of the measures Joe Biden has in mind with his “whole-of-government” response to “the climate crisis.” It can even enact the more extreme measures promoted by Green New Deal advocates.

It takes only the votes of a majority of House members, 60 Senators (soon, perhaps, to be just 50 or 51), and the signature of the president to accomplish this.

To the extent that we’re in the midst of a climate crisis that is “wreaking havoc” and that can be mitigated by changes in U.S. policy, those pushing for the changes should be able to persuade we-the-people, our legislators, and our president to enact them.

In any case, that’s what our American democracy is about. It’s about voters selecting members of Congress, these members setting policy through legislation, courts interpreting the legislation, and the executive enforcing the legislation as written by Congress and interpreted by the courts. It’s not about unelected bureaucrats interpreting and enforcing legislation as they wish it had been written, and courts deferring to them.

This is Civics 101. Or would be if traditional American civics weren’t being replaced by “action civics.