This Supreme Court decision could make it harder to protect Michigan’s air and water

This article has been republished here with permission from Planet Detroit.

By Brian Allnutt, Planet Detroit

Last Friday, the U.S. Supreme Court overturned a principle of federal law that had guided U.S. regulation for four decades, shifting power from the executive branch to Congress and the courts.

By a 6-3 vote, the court overturned the 1984 precedent set in Chevron v. Natural Resources Council, which held that courts should defer to agencies’ interpretations of ambiguous laws as long as they are reasonable.

“Chevron’s assumption is misguided because the agencies have no special authority to resolve statutory ambiguities,” wrote Chief Justice John Roberts. “The courts do.”

The move gives courts broad authority to rule on often technical issues, experts say, and could give companies and their paid experts an advantage when challenging regulations. And several cases challenging federal regulators’ authority to reduce greenhouse gas emissions from vehicles and power plants could benefit from the Chevron ruling.

“Today’s majority decision will represent a massive shock to the legal system, challenging many established interpretations of the law and threatening the interests of many parties who have relied on them for years,” Justice Elena Kagan wrote in her dissent, referring to an earlier opinion.

In Michigan, the decision could lead to changes in air and water quality permitting because the U.S. Environmental Protection Agency delegates authority to implement federal laws to state regulators. The state’s Department of Environment, Great Lakes and Energy, for example, issues water quality permits for polluting facilities, which could be affected if contaminants like PFAS are no longer federally regulated.

However, Michigan recently repealed its “no more stringent than federal” law, giving the legislature the power to enact regulations that provide greater protection than the federal ones and giving the state a chance to fill the regulatory gaps created by the Supreme Court decision.

Chevron ruling leads to ‘seismic shift’ in environmental regulations

Nick Schroeck, associate dean for experiential education at the University of Detroit Mercy School of Law, told Planet Detroit that the ruling represents a “seismic shift” in environmental protection legislation that fails to take into account the rapid evolution of sources of pollution and the technologies to combat them.

“It’s very difficult for the legislative process to account for all the contingencies that can arise when you regulate, for example, air pollution,” Schroeck told Planet Detroit. “It’s an unrealistic expectation that this whole regulatory system can work without a highly functioning administrative state that has the authority to make some decisions right and use its expertise.”

Although Roberts said the ruling should be forward-looking, Schroeck said it could make many already settled issues open to challenge if litigants argue that the rules are based on misinterpreted laws.

The Supreme Court may have made those legal challenges more likely with another ruling Monday, Corner Post v. Board of Governors of the Federal Reserve, which said the six-year period for filing a lawsuit challenging a federal regulation begins when it first affects a company, not when the regulation is enacted.

David Coursen, a former Environmental Protection Agency lawyer, said the Chevron decision gives courts jurisdiction they are fundamentally unsuited to. He said courts should decide whether agencies have the authority to make rules, but not second-guess those decisions.

“I don’t think the courts and their clerks are well equipped to make these technical decisions,” he said.

Coursen added that the decision effectively undermines the authority of the agency’s experts, who are not paid to produce a specific result, and gives more power to experts hired by companies to argue against regulations.

PFAS regulations and climate protection measures could be at risk

There are several lawsuits currently underway that could be impacted by the Chevron decision. Many of them are being brought on behalf of Republican-led states that accuse agencies of exceeding their authority in adopting regulations to reduce greenhouse gas emissions. Some of these cases involve agencies that have used the authority granted to them by the Clean Air Act (originally passed in 1970 and amended in 1990) to reduce emissions from vehicles and power plants.

Efforts to combat pollution from toxic PFAS could be another obvious target for litigation, Schroeck said. The U.S. Environmental Protection Agency has regulated the so-called “forever chemicals” in surface water, using its authority under the Clean Water Act, but that law does not specifically mention PFAS.

However, Schroeck said any law that contains some degree of ambiguity could lead to a challenge that it was misinterpreted by a federal agency.

“Everything is ambiguous,” he said. “But by and large, the authorities have tried to do their job, which is to implement the laws that Congress has passed. And sometimes that does require judgment and seeking expert opinions.”

Although some federal judges are making decisions from a more environmentally friendly perspective, much of the work of advancing environmental and climate goals is now in the hands of lawmakers. Getting new legislation through an often deeply divided Congress is likely to be a challenge. Key environmental laws such as the Clean Air Act and the Clean Water Act were passed in the 1960s and 1970s, when such efforts enjoyed bipartisan support.

But Michigan may be better positioned than some states to fill loopholes in federal regulations. The state has a renewable energy standard to reduce climate-warming emissions from power plants and manages its own wetlands program. Schroeck said as long as state laws don’t conflict with federal law, federal courts are unlikely to intervene.

At the federal level, however, Schroeck said, the Chevron decision has stripped the administrative state of a significant amount of its power, and it will require major efforts to replace it.

“Congress needs to do some pretty serious legislative work over the next five to 10 years,” he said.

Find more news now at Great Lakes:

Inside is not the solution: Air quality in the Great Lakes

Featured image: PFAS foam on a beach near the decommissioned Wurtsmith Air Force Base in Iosco County, Michigan (Great Lakes Now, Episode 1025)