The Death of Deference: History of the Chevron Doctrine, its Overturning in the Loper Bright Case, and Implications for Environmental Regulation

Written by Benjamin Henderson

Edited by Yatika Singh

Benjamin Henderson is a first-year student at Sciences Po Le Havre. His academic interests include environmental law, applied ethics, environmental science, cognitive science, and Asian philosophy.

Introduction  

On June 28th, 2024, the Supreme Court of the United States issued an opinion on the case Loper Bright Enterprises v. Raimondo, overturning forty years of precedent in American administrative law. The Chevron Deference Principle was foundational to a conception of interpretive autonomy in federal agencies. According to the principle, judges can only challenge agency interpretations of statutes [1] after applying a two-step process [2]. Some understood Chevron [3] to mean that judges had no power to challenge an agency’s interpretation of congressional statute. This article argues that though Chevron was important, its centrality is often overstated.  Polarization on this point has formed two camps: one sees Chevron as a threat to the separation of powers, while the other believes deference rightly empowers agency expertise. Echoing Justice  Stevens’ remarks in the 1984 Chevron v. Natural Resources Defense Council opinion:  

“Judges are not experts in the field…[but] an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.” [4]

However, both camps are mistaken in centering their triumph or dismay on the overturning of Chevron. As stated in the Loper [5] majority opinion, the “Court, for its part, has not deferred to an agency interpretation under Chevron since 2016” [6]. Chevron has suffered a ‘slow death’ that is the “culmination of decades of effort to reduce the role of government in our lives” [7]. In this sense, the Loper decision is a nail in the coffin of wide administrative deference. A  change that has been years in the making and must be understood in this wider context.  Therefore, as we look at the Chevron decision, the shaping of the Chevron Doctrine, and the overturning of Chevron Deference, it will be kept in mind that Chevron’s importance is vast, but often exaggerated. 

Outline  

In this article, we will focus on environmental regulation as a case study to understand the shifts in administrative power. Firstly, we seek to understand the Chevron Deference principle itself. Secondly, we will discuss the Loper Bright Enterprises v. Raimondo decision, which overturned Chevron, placing it in the context of the Major Questions Doctrine and Originalism.  

1)The Role of Chevron  

a) Background  

As Gary S. Lawson and Stephen Kam argue, the importance of the Chevron Doctrine to administrative law has little to do with the specificities and ruling of the Supreme Court in the  Chevron Decision.  

“The modern doctrine of federal court review of federal agency interpretations of statutes does not stem in any substantive way from [the] Chevron [decision]. Rather, it  comes from a series of lower court decisions in the mid-1980s that converted a narrow  Clean Air Act case about imaginary bubbles over factories into a generalized doctrine of  administrative law.” [8] 

Nevertheless, to understand the role that Chevron has played in administrative law, we will look at its entire lifecycle as a precedent doctrine. Firstly, we will explore the specificities of the  Chevron case. Secondly, we will consider the decision itself, focusing on the two-step process it put into place. Thirdly, we will look at how the decision became a doctrine and the changing understanding of Chevron over the years.  

1. Specificities of the Case  

In 1977, the New Source Review program (NSR) was started by the EPA after Congress amended the Clean Air Act. Sizeable changes to parts C (‘Prevention of Significant  Deterioration’) and D (Nonattainment NSR) affected the standards of new and modified  “stationary sources” of pollution [9]. The EPA sets national air quality standards that are to be met by each state. States submit SIPs (State Implementation Plans) in compliance with the  EPA’s rules. In 1979, the EPA released its “Requirements for Preparation, Adoption, and Submittal of SIPs” in compliance with the amendments. This document defined a stationary  source as:  

"Any structure, building, facility, equipment, installation, operation (or combination  thereof) which is located on one or more contiguous or adjacent properties and which is  owned or operated by the same person (or by persons under common control)." [10] 

The EPA also defined ‘facility’ as an "identifiable piece of process equipment" [11]. However, this definition was controversial. By adopting a plantwide (or ‘bubble’) definition of stationary source, the EPA allowed states to place an imaginary bubble over a polluting facility before determining whether there was a change to this source. For example, if a company replaced a smokestack that emits 100 tons of CO2 per year with a model emitting the same amount, this wouldn’t be counted as a new or modified source [12]. Conversely, if each unit is considered separately, then the replacement of a new smokestack would be subject to the “Best Available Control Technology” (BACT) under part C of the Clean Air Act, the Prevention of Significant Deterioration (PSD).  

NRDC challenged this definition of a ‘stationary source’. It argued that Congress, in its promulgation of the NSR program, did not intend to allow companies to duck the BACT  standards required for new and modified sources. From their point of view, the amendment's raison d’être was to improve air quality. Something that the EPA’s definition of a stationary source seemed to undermine. In oral arguments, NRDC lawyer Paul M. Bator said:  

“I want to give a little bit of background here to the statutory structure [… There are]  SIPs, and these must require annual incremental reductions in emissions which constitute reasonable further progress towards attainment. The statute also requires the SIP to impose what is called "reasonably available control technology" on all existing sources.  These requirements have nothing to do with a bubble. These are the principal engines  that are supposed to drive the state toward attainment.” [13] 

The opposition argued that Congress defined source in section 111 of the Clean Air Act in  1970, making such a definition applicable here. However, NRDC argued that given the history,  “there seems to have been at least some indication that Congress did not want to tie the new NSR  program to that [section 111] definition of source” [14]. Citing the fact that the conference committee removed the section 111 definition of source presented in the bill. Ultimately, NRDC  had a compelling case for why this definition used by the EPA wasn’t exactly what Congress intended for it to be. But, as we will see in the next section, the decision was about whether the judiciary even had the power to determine the best interpretation of Congress’s will.

b) The Chevron Decision: Roots of a Doctrine  

In a unanimous decision, the Burger court sided with the EPA, saying that “The EPA's plantwide definition is a permissible construction of the statutory term ‘stationary source ” [15]. In the years before this decision, the EPA had changed the definition of stationary source depending on the different circumstances. This inconsistency was understood by the court to be a necessary aspect of regulation.  

“An agency, to engage in informed rulemaking, must consider varying interpretations and the  wisdom of its policy on a continuing basis.” [16 ]However, as we mentioned earlier, the decision became about more than stationary sources and environmental regulation, being cited thousands of times in the 40 years of its existence” [17].

As Thomas W. Merrill explains it, part II of the opinion contained a “short summary of the standard of review in Part II [which was] a bit snazzy, in an effort to grab the readers’ attention.  In his own mind, Part II was not intended to change the law of judicial review” [18]. However, this  “short summary” would be interpreted as a precedent-setting declaration in the years to come.  The most important aspect of which is the ‘two-step process’ by which courts determine whether deference should be granted to agencies.  

i) The Two-Step Process  

The first step consists of determining whether Congress has “directly spoken to the precise question at issue.” [19] This makes complete sense given “the emphatic duty of the judiciary to say what the law is.” [20] The important thing about step one is knowing how to determine whether Congress has spoken to the issue at hand. Determining “clear congressional intent” is itself a debated topic [21]. As Justice Kavanaugh is said to have put it, there is a clear gap between so-called readers of the Chevron decision and those who seem to ignore it [22]. Courts should apply “traditional tools of statutory construction” to evaluate the meaning of statutes. This goes beyond simple textual analysis to considerations of legislative history and the purpose of policy considerations [23].  

The second step of the two-step process is only reached “if the statute is silent or ambiguous  with respect to the specific issue.” Then “the question for the court is whether the agency's answer is based on a permissible construction of the statute” [24]. The tricky part here is determining what constitutes a permissible construction of a statute. The vague language present in both steps of the Chevron opinion supports the claim that this decision was not intended to be a major change in precedent. But it is nevertheless important to know that the two-step process originated from the Chevron opinion itself to understand how it was later turned into a generalized principle.  

c) The evolving Chevron Doctrine 

Over the next decades, Chevron came to apply to a lot more than stationary sources and even environmental regulation. Becoming a truly massive principle that it “virtually define[d] modern administrative law,” [25] being cited more than 17,000 times [26]. In this section, we will track the major steps that turned the narrow case about stationary sources into the generalized Chevron doctrine.  

In 1986, the first application of the two-step process was recorded. Justice O’Connor wrote for the majority using the Chevron decision as precedent. She concluded that the FDA’s founding document, the Food and Drug Act, did not “unambiguously express… its intent through its choice of statutory language” [27]. The court thus granted deference to the FDA’s interpretation of § 346 of the Food and Drug Act. The only justice in dissent was none other than Justice  Stevens, who rendered the Chevron decision merely two years prior. In these two years, there were many cases concerning agency interpretations, but the Chevron decision was never invoked in reference to the two-step process [28]. But by 1990, more than half of Supreme Court cases applied the two-step process to cases about administrative deference. As has been argued by others, 29 the  DC circuit court of appeals was instrumental to “Chevron’s rise from obscurity" [30].

At first, Chevron was championed by conservatives, who associated it with the  “deregulatory initiatives by the Reagan and Bush Administrations”[31]. Among the proponents of  Chevron was the late Justice Scalia – who was also a major proponent of originalism [32] – strongly defended Chevron for allowing agencies to flexibly interpret statutes over time with political accountability [33].

Later, Chevron was associated with “administrative expansion” under the Obama administration,34 and was seen as being incompatible with the separation of powers [35]. As we will see in the next section, the Massachusetts v. EPA decision used Chevron step one to oblige the EPA to regulate GHG emissions from mobile sources. 

2) Good-bye Chevron, Hello Uncertainty  

On June 28th, 2024, the Roberts court decided two cases together: Loper Bright v. Raimondo and Relentless, Inc. v. Department of Commerce [36]. Both cases dealt with a challenge to the  Magnuson-Stevens Fishery Conservation and Management Act (MSA), which was originally passed in 1976 to foster “the long-term biological and economic sustainability of marine fisheries” [37]. The law required some fishing vessels to carry observers onboard to collect data for conservation purposes. The petitioners, a group of fishing companies, emphasized the cost of these federally mandated observers who were greatly eating into their profit margins, claiming that the cost could exceed 20% of their annual returns [38]. They claimed that it was illegal for the government to place this cost burden on them. In lower courts, the agency’s interpretation of the  MSA, which made vessel owners pay, had been upheld using Chevron deference. In section  1853(b)(8) of the MSA, the articles requiring federal observers, there was no mention of who would pay for the federal observers. Once the case reached the Supreme Court, the petitioners argued that “If Chevron Tolerates th[is] Result […] the Court Should Overrule It,” [39] and overrule it they did.  

The case was decided by a 6 to 3 majority that follows the conservative ideological grouping that has been the topic of much discussion in recent years.40 The decision fully overturned  Chevron deference:  

“Held: The Administrative Procedure Act requires courts to exercise their independent  judgment in deciding whether an agency has acted within its statutory authority, and  courts may not defer to an agency interpretation of the law simply because a statute is  ambiguous; Chevron is overruled.” [41] 

The decision was the last nail in the coffin for an already dying Chevron Deference. It is monumental in the sense that Chevron was a mainstay in administrative law [42], but the Supreme Court had not employed Chevron Deference since 2016 [43]. This doesn’t mean that the overturning of the doctrine is meaningless, considering that lower courts use Chevron Deference much more often, but the overturning of Chevron comes as no surprise to those who have been following the trajectory of the court in recent years.  

In this section, we will first explore the specifics of the Loper Bright decision, putting it in the context of conservative judicial activism present under Chief Justice Roberts in recent years. Secondly, we will explore possible implications of losing Chevron Deference with regard to environmental regulation.

The Loper Bright Decision  

The Loper Bright decision is just one of many precedent-breaking decisions rendered by the Supreme Court in recent years [44]. To understand where Loper Bright fits into this trend, we will first investigate the arguments used to decide Loper Bright and the extent to which this reasoning resonates with originalism and the major questions doctrine.  

There are three aspects of the majority opinion that Chief Justice Roberts wrote that we will  now investigate:  

1) The text starts by affirming that the role of the courts is to determine what the law is [45]. The court's job is to give “the final” interpretation of laws.  

Though only a small part of the opinion, it signals an important break with the logic of  Chevron –that the law must have one correct interpretation. This is quite different from the construction of step two Chevron deference, where multiple permissible constructions of the statute are imagined.  

2) The text goes on to give a historical account of the courts' “due respect to Executive  Branch interpretation of federal statutes” [46].  

Putting in place the majority’s conception of what consideration for agency’s interpretations is to be given. Traditional tools of statutory interpretation are outlined, which include respect accorded to long-standing, consistent interpretations of statute and consideration of the executive’s expertise. They argued that the “views of the Executive Branch could inform the judgment of the Judiciary, but did not supersede it” [47]. 

However, using traditional tools of statutory interpretation is included in the doctrine already. In proposing that the executive branch’s views superseded the judiciary’s under Chevron, Justice Roberts evokes a narrow interpretation of Chevron that doesn’t track with the reality of deference under Chevron. That Chevron deference lets the executive’s interpretation of statute supersede the court’s is simply untrue. As we will see, textual originalism is operative in this characterization of  Chevron [48]. 

3) The third and most important argument of the decision is that Chevron deference is incompatible with section 706 of the Administrative Procedure Act (APA).  

For background, the APA was passed in 1946 when the number and scope of federal agencies were growing [49]. The act was intended to create “relative uniformity in the administrative machinery of the Federal Government” [50]. When an agency is created by congress it has its own founding document, or enabling act, however, agencies usually derive “procedures from a more general statute,” [51] The APA has been termed the “statutory constitution” [52] of agencies, it outlines the “default rules that govern how federal agencies act and how they can be challenged”  [53].  

Roberts writes that section 706 of the APA is a check on “administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices” [54]. His argument is that the APA is a backstop on the excessive power of agencies, and implies that  Chevron allowed agencies more power to interpret ambiguous statutes than they were due,  undermining the separation of powers plainly laid out in the APA.  

Another point of view is that of the 3 dissenting justices, for whom Justice Kagan wrote that  Chevron reflects what Congress would want:  

“Congress […] knows that those statutes [it issues] will inevitably contain ambiguities […]  and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court” [55].

In response to the majority's reasoning that §706 is incompatible with Chevron deference, Justice Kagan writes that § 706 is itself ambiguous with regard to what kind of review it mandates.  “Just as the provision [§706] does not prescribe a deferential standard of review, so too it does not prescribe a de novo standard of review […] Section 706 neither mandates nor forbids  Chevron-style deference” [56]. The dissenting opinion challenges the majority’s claim that their reading of the APA is consistent with the “plain meaning” [57] of the text.  

As we previously discussed, Chevron deference explicitly acknowledged the possibility of multiple rival interpretations of an ambiguous statute, and in cases within which the agency’s interpretation was a “permissible construction of the statute,” [58] deference would be accorded.  This was at least in part the result of a certain humility, an acknowledgement that court justices were not competent in technical fields such as environmental science or biochemistry. Justice  Kagan provided examples of questions that courts will now have to resolve without using  deference:  

• “When does an alpha amino acid polymer qualify as a 'protein' subject to FDA regulation?  

• What is required to designate a population segment as “distinct” under the Endangered  Species Act?” [59]. 

However, the notion that granting deference to “permissible” interpretations meant that deference was granted to all agency interpretations is false [60]. 

Major Questions and Statutory Originalism  

Prior to Chevron being overturned, the so-called Major Questions Doctrine (MQD) carved out exceptions to Chevron’s deference [61]. The culmination of which was the 2022  West Virginia V. EPA (597 SCOTUS) case. In this case, the court decided that the EPA’s Clean  Power Plan rule (CPP), which addressed GHG emissions from existing stationary sources,  exceeded its statutory authority [62]. The EPA used section 111 of the CAA (Clean Air Act) to set emissions limits through BSER (best system of emission reduction) which included two mechanisms, “heat rate improvements” (lowering emissions of existing coal plants) and  “generation shifting” (away from coal to natural gas, which has a lower carbon intensity per unit of electricity).  

In the lower courts where Chevron deference had been applied, the EPA’s statutory construction was granted deference (see footnote 60). However, the court ruling employed MQD  in determining that the EPA had stepped out of its statutory bounds. The Major Questions  Doctrine involves a two-step process wherein the court firstly determines whether the agency’s action is ‘extraordinary’. “Generally, this means that the action concerns an “issue of major national significance” [63]. Secondly, the court investigates the agency’s enabling act to determine whether “congress clearly and concisely delegated such immense power to the agency. If it does,  the agency is afforded deference ”[64]. If it is ambiguous, no deference is afforded. This functionally flipped Chevron on its head by denying deference in cases of statutory ambiguity, once a topic was considered ‘extraordinary’. MQD includes a strict reading of an agency’s enabling statute to determine whether Congress delegated such powers to the agency. In this way, the MQD relies on an originalist reading of statute in judging the permissibility of agency action.  

Originalism is a way of interpreting the Constitution, and as we will see, any legal document that has been around for a long time [65]. For the purposes of this article, we can trace it back to the 1970s and 80s when three individuals were instrumental in its foundation. Namely,  Attorney General Edwin Messe, Judge Robert Bork (who was nominated to the Supreme Court in 1987 and rejected), and Judge Antonin Scalia (who was later a supreme court justice) [66]. Their originalism was partly a response to the Warren (1953-1969) and Burger (1969-1986) courts' landmark cases [67], for which a perceived excess of “living constitutionalism” was blamed. Living constitutionalism “considers the ways in which interpretation of documents can change over time, according to the prevailing ideas and values of a given era”[68]. In contrast to the changing meanings that living constitutionalism offered, the early originalists sought to determine the meaning of law, which they deemed fixed at conception.  

The first recorded use of the term originalism was by Paul Brest in 1981 [69], who defined it as an approach which “accords binding authority to the text of the Constitution or the intentions of its adopters” [70]. Meaning that judges applying originalism would engage in “hypothetical and counter-factual inquiry into how the framers would have addressed an issue had they thought of it” [71]. A major objection to this approach was how one should “identify what a diverse group of  people thought about any particular issue?” [72]. Situations that were impossible at the time of the framers pose a particular problem for this approach. Barnett rather comically asks whether the framers intended to categorize the “thermal imaging of a house to detect increased heat generated by marijuana cultivation [as] a ‘search’” [73]. However, as time went on, originalism abandoned the “framers’ intent” model for one of “original public meaning”. 

In the 1990s, a “new originalism” emerged [74]. While old originalism was motivated by the  “perceived abuses”75 of the Warren and Burger courts, the Rehnquist court’s decisions (1986- 2005) provided less fuel for conservative backlash [76]. “Original public meaning” (new)  originalism departs from “framers’ intent” (old) originalism in that “it seeks to establish an empirical fact about the objective meaning of the text at a particular point in time” [77]. In this quest, it serves two functions, firstly to interpret the constitution, and secondly to engage in constitutional construction in cases of constitutional underdeterminacy. [78] It does this by discerning the “semantic meaning” of the words [79], then it looks at the “constitutional implicature”, i.e., what this meaning implies in practice [80]. Lastly, it turns to any “publicly available communicative context” to fill any holes in the text itself [81].  

Now that we have some context on originalism, we will finish off by looking at how arguments in the Loper Bright decision rely on originalism. The main argument in Loper stems from an originalist reading of APA §706.  

“The Chief Justice interpreted the opening sentence of section 706 — directing that “the reviewing court shall decide all relevant questions of law”— to be synonymous with exercising independent judgment in all cases” [82]. 

This reading of §706 results from the “original public meaning” of §706. At the time the APA  was promulgated (1946), the majority argued that “Pre-APA law required judges to exercise independent judgment in resolving all questions of law” [83]. That the meaning of these words was fixed from there on out results directly from such an assumption in originalist theory. However,  as Justice Kagan pointed out in her dissent, §706 does not specify de novo review of agency constructions. The majority think that because it meant something at the time of its promulgation, it must mean the same thing for all time to come. The majority used “publicly communicative context” to further support their reading of §706 [84]. Chevron claimed that it was a modern construction incompatible with the original meaning of the APA.  

What does it mean for environmental regulation?

Environmental regulation is a two-step process in the United States. First, Congress passes policies, and then enforcement measures are pursued by agencies, the most important one being the EPA. Under the Clean Air Act, the EPA must regulate greenhouse gas emissions from new vehicles if they endanger public health. In Massachusetts v. EPA (2007) [85], the Court ruled  GHGs qualified as pollutants. In this case, the Supreme Court didn’t explicitly name Chevron deference, but legal scholars have argued that their decision used Chevron step one analysis [86], which turned on the determination that “The statute is unambiguous” [87]. However, the regulation of stationary sources under the Clean Air Act has proven to be much more challenging. The EPA  under the Obama administration moved to do this through the Clean Power Rule. But in West Virginia v. EPA (2022), the Court determined, using the Major Questions Doctrine, that doing so exceeded EPA’s statutory authority. 

The overturning of Chevron poses a threat to the EPA’s authority to regulate everything,  including GHG emissions. The EPA’s interpretation of statute can now be more readily  challenged; Loper Bright overturns the “ambiguity threshold” [88] by which deference was granted under Chevron. Further, justices Alito and Thomas previously expressed their beliefs that  “Massachusetts v. EPA was wrongly decided at the time,” [89] which signals the openness of current justices to possible challenges to this seminal case. After all, the Massachusetts v. EPA decision turned on a generous interpretation of CAA §202 (a)(1) that, strictly speaking, does not mention greenhouse gas emissions. The majority argued that using “any air pollutant” was implicitly vague to accommodate an evolving scientific understanding. But the “original public meaning” of air pollution, it can be argued, did not include GHGs.  

Conclusion  

In conclusion, the Chevron deference doctrine emanated from a decision in 1984 that was not initially projected to turn into a general principle of administrative law. However, over the years, it became just that, being embraced by a diversity of legal scholars at different points because of its service to their respective causes. The Loper Bright decision fully overturned the doctrine by relying on a strict reading of section 706 of the APA. Loper Bright is another example of the Roberts Court’s embrace of the Major Questions Doctrine and originalism. This decision will surely usher in a flurry of challenges to agencies' rulemaking and is symbolic of the current administration’s efforts to greatly diminish the regulatory state. 

Bibliography and Endnotes

[1] We will elaborate on the process of regulating, but for now, it suffices to know that Congress passes laws and agencies put those into practice.  

[2] I will talk more about this process in section II.  

[3] Throughout this article, Chevron or Deference will be used to refer to Chevron Deference. As we will see, the  doctrine is distinct from the strict Chevron decision which I will therefore refer to as such to avoid confusion.  4 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc, 467 U.S. 837 (1984).

[5] A shorthand for Loper Bright Enterprises v. Raimondo, No. 22-451, (U.S. June 28, 2024).

[6] Ibid. 

[7] Deborah S. Sivas, Q&A with Sharon Driscoll, “The impact of overturning the Chevron decision”, Stanford Report  2024.  

[8] Gary S. Lawson and Stephen Kam, “Making Law Out of Nothing at All: The Origins of the Chevron Doctrine,”  Administrative Law Review 65, no. 1 (2013), 3-4.  

[9] Fact Sheet: New Source Review, EPA  

[10] U.S. Environmental Protection Agency, "Requirements for Preparation, Adoption and Submittal of SIPs;  Approval and Promulgation of State Implementation Plans," Federal Register 44, no. 173 (September 5, 1979):  51924, https://www.regulations.gov/document/EPA-HQ-OAR-2003-0222-0001.  

[11] Ibid. 

[12] Merrill, The Chevron Doctrine, 56. 

[13]Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)- Oral Argument, 2-3 – Accessed February 24, 2025,  https://supreme.justia.com/cases/federal/us/467/837/.  

[14] Ibid, 5.  

[15] Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), 837. 

[16] Ibid, 838.  

[17] According to the Westlaw database referenced in, “An Empirical Review of Rigor of Application at the District  Court”, Chapman, 618.  

[18] Merrill, The Chevron Doctrine, 79.  

[19] Chevron opinion, 1984.  

[20] Marbury v. Madison, 5 U.S. 137, 177 (1803).  

[21] Ibid.  

[22] This is mentioned in a podcast interview in which Professor Hickman speaks of a conference she attended where  Justice Cavanaugh said this. "Chevron Overboard? Loper Bright Enterprises v. Raimondo With Prof. Kristin  Hickman," National Law Review, November 21, 2023, podcast audio, 00:11:41,  

https://natlawreview.com/article/chevron-overboard-loper-bright-enterprises-v-raimondo-prof-kristin-hickman. 

[23] To read more about the interpretive role of the courts, because it is incredibly important to understand the  structure of law in the United States look at “Statutory Interpretation: Theories, Tools, and Trends”, Congressional  Research Service, Updated March 10, 2023.  

[24] Chevron opinion 1984.  

[25] Lawson & Kam, “Making Law Out of Nothing At All” Administrative Law Review, 2013, 2. 

[26] Bethany Ring, Chevron Deference: An Empirical Review of Rigor of Application at the District Court Level, 24  CHAP. L. REV. 613 (2021)  

[27] Young v. Commun. Nutrition Inst., 476 U.S. 974 (1986).  

[28] Merril, “The Chevron Doctrine”, 81.  

[29] Both Merrill’s “The Chevron Doctrine” and Lawson & Kam’s “Making Law Out of Nothing At All” push the  notion that the DC circuit court of appeals was instrumental in creating the Chevron Doctrine. 

[30] Merrill, “The Chevron Doctrine”, 83.  

[31] Thomas W. Merrill, “The Demise of Deference — And the Rise of Delegation to Interpret?” 138 Harvard Law  Review 227, November 2024.  

[32] We will explore Originalism in more depth later. Antonin Scalia, “Originalism: The Lesser Evil,” University of  Cincinnati Law Review 57 (1989): 849–865.  

[33] Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke Law Journal 511-521  (1989), pg 517-518.  

[34] Gillian E. Metzger, The Supreme Court, 2016 Term — Foreword: 1930s Redux: The Administrative State Under  Siege, 131 Harvard Law Review 1, 3–4 (2017).  

[35] Neil Gorsuch, A Republic, If You Can Keep It (New York: Crown Forum, 2019).  

[36] But I will refer to it as Loper Bright for the sake of simplicity.  

[37] NOAA Fisheries, “Laws & Policies: Magnuson-Stevens Act.” https://www.fisheries.noaa.gov/topic/laws policies/magnuson-stevens-act.  

[38] Paul D. Clement et al., Reply Brief for Petitioners, Loper Bright Enterprises, et al. v. Gina Raimondo, Secretary  of Commerce, et al., No. 22-451 (U.S. March 8, 2023), https://www.supremecourt.gov/DocketPDF/22/22- 451/259022/20230308115343083_2023-03-08%20Loper%20Bright%20Cert%20Reply.pdf.  39 Ibid, 8.  

[40] Especially with the DOBs decision which overturned Roe v. Wade’s federal protections on abortion, Students for  Fair Admissions, Inc. v. President and Fellows of Harvard College which ruled that race based affirmative action is  illegal, and Biden v. Nebraska where it was decided that Biden’s student Loan Forgiveness was illegal, among other  cases.  

[41] Loper Bright Enterprises v. Raimondo</u>, No. 22-451, slip op. at 1 (U.S. June 28, 2024).  42 See supra note 26. 

[43] Chevron was last applied in Cuozzo Speed Technologies, LLC v. Lee, 136 S. Ct. 2131, 2142 (2016). 

[44] See footnote 34.  

[45] This is very common in supreme court decisions. Referring to Marbury v. Maddison to create the legal basis for  the subsequent decision.  

[46] Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024), 2.  

[47] Ibid.  

[48] Roberts seems to take the same stance as former justice Antonin Scalia who expressed his view of Chevron in his  1989 administrative law lecture given at Duke University: Antonin Scalia, Judicial Deference to Administrative  Interpretations of Law, 1989 Duke Law Journal 511-521 (1989).  

[49] Roni Elias, “The Legislative History of the Administrative Procedure Act.” Fordham Environmental Law Review,  Volume 27, Number 2, 207. 

[50] “Attorney General’s Manual on the Administrative Procedure Act.” 1947 ABA Administrative Procedure  Database Archive, https://library.law.fsu.edu/Digital-Collections/ABA-AdminProcedureArchive/. 

[51] William f. Fox, JR. “Understanding Administrative Law, The Catholic University of America, 2000, 3. 

[52] Gillian Metzger, The Administrative Procedure Act: An Introduction.” Columbia Law School, Poverty & Race  Research Action Council, 1.  

[53] Ibid.  

[54] Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024), 3. Where “Morton Salt, 338 U. S., at 644” was  quoted.  

[55] Ibid, Justice Kagan’s dissenting opinion, page 2.

[56] Ibid. 16-17.  

[57] Ibid, Roberts’ Majority Opinion, page 15.  

[58] Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), 843. 

[59] Present in Kagan’s opinion but reworded and taken from: Kathleen “Kassie” Seavy, “The Fall of Agency  Discretion: The Major Questions Doctrine and the Loper Bright Enterprises Decision,” Environmental Claims  Journal 34, (2025), pg. 15.  

[60] See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), Michigan v. Envtl. Prot. Agency, 576  U.S. 743 (2015), Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014), King v. Burwell, 576 U.S. 473 (2015)  for examples of cases where courts found that an agency’s construction was impermissible. 

[61] Kathleen “Kassie” Seavy, “The Fall of Agency Discretion: The Major Questions Doctrine and the Loper Bright  Enterprises Decision”, Environmental Claims Journal, 30 Jan 2025, pg. 6.  

[62] The court’s ruling was peculiar in the sense that it did not deal with a current rule. The Clean Power Plan (CPP)  rule was implemented in 2015 under the Obama administration and was challenged by multiple states including  West Virginia. The supreme court issued a stay on the rule in February of 2016 before lower courts had gotten to it.  However, the CPP was replaced with the Affordable Clean Energy (ACE) rule in 2019 by the Trump  administration’s EPA. ACE narrowed EPA’s regulation on stationary sources from “generational shifting” to the  efficiency improvement of individual plants. On January 19th, 2021, the DC circuit struck down ACE, stating that  the rule “hinged on a fundamental misconstruction of Section 7411(d) of the Clean Air Act” (American Lung  Association v. EPA 2021). Although neither CPP nor ACE were in place, DC circuit’s ruling suggested that  “generational shifting” rules were constitutional, supporting the notion that EPA had the lawful power to set limits  on emissions. This was the “live” legal question that the Supreme court responded to in the 2022 case, according to  Justia’s summary of West Virginia v. Environmental Protection Agency, 142 S. Ct. 2587 (2022). 

[63] Seavy, “The Fall of Agency Discretion,” 2.  

[64] Ibid.  

[65] For a more comprehensive history of Originalism see Lawrence B. Solum, “Semantic Originalism,” Illinois  Public Law and Legal Theory Research Papers Series No. 07-24 November 22, 2008. See also, Daniel A. Farber,  “The Originalism Debate: A Guide for the Perplexed,” 49 Ohio St. U. L.J. 1085 (1988). 

[66] See Keith E. Whittington, “Originalism: A Critical Introduction,” Fordham Law Review, Vol. 82, 375-409, 2013.  Especially footnote 2.  

[67] These include Brown v. Board of Education (1954) and Roe v. Wade (1973). 

[68] Martin Goffeney, “Constitutional Interpretation: Legal Realism, Originalism, and Living Constitutionalism,”  Hein Online Blog, October 20th 2023, accessed April 18th 2024,  

https://home.heinonline.org/blog/2023/10/constitutional-interpretation-legal-realism-originalism-and-living constitutionalism/.  

[69] According to Solum, “What is Originalism?” Georgetown, 2011 (where he consulted the Westlaw database). He  goes on to say that “original meaning” had been used previously, namely in a 1938 Yale Law Review article. But for  the purposes of this section, we start with Brest because of the relative continuity in debate since then. 

[70] Paul Brest, “The Misconceived Quest for the Original Understanding,” Boston University Law Review 60 (1980):  204.

[71] Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton, NJ: Princeton  University Press, 2004), 121.  

[72] Ibid.  

[73] Randy E. Barnett, “The Relevance of Framers Intent,” 19 Harvard Journal of Law and Public Policy, 403, 405,  1996.  

[74] Keith Whittington, “The New Originalism,” Georgetown Journal of Law and Public Policy, 2-2, 599-613, 2004. 

[75] Ibid.  

[76] Ibid.  

[77] Barnett, “The Gravitational Force of Originalism,” Georgetown, 2013.  

[78] Solum, “What is Originalism?” Georgetown, 2011.  

[79] Ibid.  

[80] Barnett, “The Gravitational Force of Originalism,” Georgetown, 2013.  

[81] Ibid. Further, Solum, “What is Originalism?” for more information on originalist constitutional construction.  82 Merrill, “The Demise of Deference” 138 Harvard, 2024.  

[83] Ibid.  

[84] Ibid. (“The premise that the APA incorporated the law of judicial review as it existed in 1946 was confirmed,  according to the majority, by legislative reports describing the import of the APA and by the Attorney General’s  Manual on the Administrative Procedure Act, issued shortly after the Act was adopted, which said that the APA had  merely “restated” the existing law of judicial review.”)  

[85] Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007).  

[86] Jody Freeman & Adrian Vermeule, “Massachusetts v. EPA: From Politics to Expertise,” Harvard Law School  Program on Risk Regulation Research Paper No. 08-11, August 1, 2007,Accessed 4/19/2025 at SSRN:  https://ssrn.com/abstract=1307811.  

[87] Massachusetts v. EPA, (majority opinion), 529.  

[88] Merrill, “The Demise of Deference” 138 Harvard, 2024, 259.  

[89] Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014), 46.