Chevron Overturned: The Supreme Court’s New Direction on Agency Authority

July 9, 2024 | Podcasts



In this episode of Jackson Walker Fast Takes, Travis Wussow and host Courtney White discuss the U.S. Supreme Court’s recent decision to overturn Chevron USA v. Natural Resources Defense Council. Travis provides an overview of the Chevron decision’s history and the long-term implications of this shift for administrative law and federal regulation.

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Our Host:

Courtney WhiteCourtney White
Research Attorney, Dallas & Houston
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Episode Guest:

Travis Wussow
Partner, Austin
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Episode Transcription

Courtney White: Hi everyone. I am Courtney White, and this is Jackson Walker Fast Takes. I asked my colleague, Travis Wussow, a partner in our Austin office, to talk about the US, Supreme Court, overturning Chevron USA v. the Natural Resources Defense Council. Travis, welcome to the podcast.

Travis Wussow: Thanks for having me, Courtney. It’s a great honor to be with you.

Courtney White: So Travis, I’d just love if you could tell us a little bit more about your practice and your previous work experience.

Travis Wussow: Yeah, sure. I’m a partner in the Austin office. I’ve recently rejoined the firm I started out my career with Jackson Walker. Many, years ago. I’ll decline to say how many. But the last few years, kind of in the in the time in between my two Jackson Walker stints, I’ve worked in public policy and advocacy, I would say broadly, I’m a regulatory and administrative lawyer. But the last few years I’ve been in DC. I just recently repatriated back to the great state of Texas, and I’m very excited to be back home.

Courtney White: Of course you did, because Texas is great, right?

Travis Wussow: It’s good. It’s good to be out of the swamp, that’s for sure.

Courtney White: Well, Travis, with that experience, I’d love to get your perspective on the history of the Chevron USA decision and how it impacted federal regulation.

Travis Wussow: Sure. So Chevron, USA v. the Natural Resources Defense Council, is really one of the most important cases in administrative law. It’s a case that was decided almost, well exactly four decades ago, in 1984 and what the case dealt with was the agency. This was during the Reagan administration, the Environmental Protection Agency’s definition of the statutory term stationary source, EPA had issued a rule in that or interpreting that, that term stationary source to mean that, that basically, the agency could consider all of the sort of processes within a particular industrial grouping, they could put a quote, unquote bubble around it and treat all of those processes as a single stationary source. And NRDC had sued EPA saying, no, no, this is too permissive. This is too generous towards industry. What EPA needs to do, actually, is require each of those individual emitting points to get their own permit each they each need to be considered a stationary source on their own.

And sort of the political backdrop of all of this is that during this time the DC Circuit had been, it had sort of a leftward bent to it, and had been siding with environmental groups on a number of different cases over the years. And so interestingly, the this case, Chevron USA, that was just overturned by the conservative majority on the Supreme Court, was actually written by Justice Scalia. And what Justice Scalia’s rationale behind this case was to say, you know, these agencies have sort of a special technical expertise around the statutes that they’re interpreting, and rather than have an activist, quote, unquote court get involved with telling an agency how it should interpret its own statutes, the court should defer to the interpretation of the agency.

Courtney White: Which to me, seems logical, by the way.

Travis Wussow: Yeah, I think it. I think it does make sense. And, you know, and it should be noted that over, you know, over the years, the court has ruled on Chevron a number of different ways. It has limited its effect. It’s provided a bunch of caveats to it. And it was originally articulated as a two-step process. There now is a step zero and maybe a step 0.5, so what was created in the aftermath of Chevron was a very complicated body of law that dealt with statutory interpretation. And so because the current majority, or at least the current conservative majority on the on the Supreme Court, has a bit more textual bent to it, in some ways, it’s not surprising that their bias took them where they took with Loper Bright, which was to overrule Chevron and say no actually questions of statutory interpretation, answering the question, what does a phrase mean, or what does a word mean? Actually lies within the special province of the judiciary, not the agency. And the court in Loper Bright was careful to say, you know, it isn’t as though what agencies have to say doesn’t matter. An agency can provide its gloss. It can it can provide its opinion about what a statute means, and the court should consider that when sort of dealing with an ambiguous statute or dealing with a question of statutory interpretation. But what Chevron said was that the judiciary was bound to defer to the federal agency when there was a question of an ambiguous statute. And it was, it was that sort of binding deference that was overturned in Loper Bright.

Courtney White: I think that’s a really, really helpful explanation that kind of leads me into my second question. So now that we are dealing with this recent decision in Loper Bright, what do you think will be the practical implications in the present?

Travis Wussow: It’s a great question, and the way that I would sort of put it is that Loper Bright, by overturning Chevron, has created a new set of possibilities in terms of the development and unfolding of administrative law over the next 10,15, 20 years, but it doesn’t necessarily set an outcome. And what I mean by that is that the decision, or the opinion it was written by Chief Justice John Roberts was a highly philosophical opinion. It quoted the Federalist Papers, kind of all throughout the introduction. It quoted Marbury versus Madison, landmark case that sort of dealt with the balance of power between the judiciary and the Congress at a number of different points. And it’s clear that what Chief Justice Roberts was concerned about when writing Loper Bright was really these questions of the balance of power between the branches of government, and what he seems to be reacting to, what the majority seemed to be reacting to, was a structure that had emerged after Chevron where administrative agencies wielded a great deal of power vis-à-vis. The statutes that they were implementing and what Chief Justice John Roberts was trying to do, or what he argues Loper Bright by overturning Chevron does is restore or change the balance of power so that the judiciary takes on a more muscular role in terms of interpreting and defining this, the scope and parameters of a federal agency’s power. So your question was, what is this? What does this matter?

Well, I, in my view, the side, if you will, or the group of parties that take advantage of this opportunity by bringing litigation, by sort of forcing the question of statutory interpretation in the courts. Those are the parties that will, I think, have the biggest say in terms of the future shape of the administrative state. So I don’t think that it necessarily means that administrative agencies will, you know, as some commentators have said, you know, are now toothless or maybe pushed around by the courts. What this means is that litigants will have a greater opportunity in challenging statutory interpretations that are issued by agencies as a part of new rulemaking, that litigants have an opportunity to invite the courts to either expand or hem in a federal agency’s power when they’re issuing rules, because remember Chevron USA, the original case was an environmental NGO trying to expand the scope of what EPA was regulating.

Courtney White: Exactly.

Travis Wussow: And so what this means is that those kinds of cases are on offer again, right? And so I think what you can expect most of all is a lot more litigation. There’s sort of a renewed incentive for parties to challenge new regulations and to challenge them on statutory interpretation grounds. I think how that sort of burst of litigation shakes itself out, I think, is something that we’re going to have to watch over the next 10,15, years, as things unfold, you know. And I think it’s also reasonable to expect that the Supreme Court is likely to, you know, to sort of correct course or nudge course, as some of these cases come back before it.

Courtney White: And I think one of the most interesting points that I just heard you mention really quickly is that you said in Chief Justice John Roberts opinion that he referenced the Federalist Papers. And I’ve noticed that in some of the other opinions, there seems to be this desire of the court to look at original intent more than maybe I’ve, any of us have really seen in recent years. And I find that really, really interesting. So I really, really appreciate your perspective and helping us understand this Supreme Court decision. So thank you so much, Travis for joining us on the podcast today.

Travis Wussow: Thanks so much for having me. I think this is one of the most important Supreme Court cases that we’ve seen in many, many years. And you know, I think, as an administrative lawyer, it’s really exciting. I think it creates a lot of opportunities for our clients, and in for those who have an interest in how they’re regulated, it gives them a new say in that. And so, you know, we’re already having conversations with a number of our clients about what opportunities might this create for them, and you know, if you’re interested in learning more, I’d be happy to talk, talk to you about it.

Courtney White: Thank you so much. So for more information and additional JW Fast Takes podcasts, please visit JW.com/Fast.

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The music is by Eve Searls.

The opinions expressed do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.

Meet Travis

Travis Wussow is a regulatory and governmental affairs lawyer with extensive experience solving complex regulatory and public policy problems. As an advisor and advocate, Travis assists clients in navigating and shaping their regulatory landscape, helping them maintain compliance while advancing their broader strategic goals. His extensive public policy experience spans healthcare, technology, education, constitutional law, and international human rights. This diverse background allows him to bring a unique perspective to his practice.