The Chevron Doctrine's Demise: A Seismic Shift in Animal Protection?

On June 28, 2024, the Supreme Court of the United States (“SCOTUS”) issued a landmark decision, characterized in a New York Times article as “seismic,” which could dramatically impact federal agencies’ abilities to adopt and enforce their regulations, including ones protecting animals. That decision in Loper Bright Enterprises v. Raimondo (“Loper”) overturned the “Chevron Doctrine,” abbreviated “Chevron” in this article, a pillar of federal administrative law for 40 years, cited by SCOTUS itself in 70 cases and by lower federal courts in approximately 17,000 cases. Sadly, stereotypically and significantly, all six SCOTUS conservatives voted to overturn Chevron, while all three SCOTUS progressives voted to uphold it, stark evidence that ideology and politics were once again extrajudicial members of the high court. This article examines Chevron, its demise in Loper, the potential fallout for animal protection regulations, and ways we can help lessen its negative impact.

What was Chevron?

Arising from a 1984 Supreme Court decision, Chevron was an administrative law principle applied when a federal court considered whether an unclear or ambiguous federal statute permitted a particular agency regulation. In that context, Chevron required the court to defer to the enforcing agency's reasonable interpretation of that statute.

What rationales underpinned Chevron?

● Ambiguity: Federal statutes are often unclear or ambiguous on issues critical to their interpretation, implementation and enforcement. This results from the complex interplay of legislative compromise, issue complexity, limited legislator expertise, time constraints, flexibility preferences, rapidly changing circumstances, unintended consequences, political strategy and, most notably for our article, the expectation that federal agencies responsible for administering statutes will clarify them with regulations.

● Expertise: Federal agencies tasked with administering complex statutes generally possess specialized knowledge and technical expertise about them, while courts don’t. Moreover, federal agencies often draft legislation.

● Efficiency: Chevron, a regulatory lubricant, allowed federal agencies to function smoothly without constant, disruptive second-guessing by courts and regulated industries.

● Consistency: Deference to agencies promoted consistency and, therefore, predictability and avoided conflicting judicial interpretations from different federal courts.

● Accountability: Because agencies are accountable to the president and, by extension, the electorate, they’re better positioned than courts to make policy choices pertinent to their regulations.

Even staunch conservative, deceased SCOTUS Justice Scalia defended Chevron, saying it “accurately reflects the reality of government” and “adequately serves its needs.”

With Chevron eliminated, who now interprets unclear or ambiguous federal statutes?

In general, federal courts must now interpret them and cannot simply defer to federal agency interpretations. An exception exists when a statute explicitly mandates such deference. Even under the general rule, a court may choose to weigh, even heavily, an agency’s interpretation.

What reasons did the SCOTUS majority cite in Loper for overruling Chevron?

● Conflict: Chevron allegedly conflicted with the 1946 Administrative Procedure Act's mandate that courts, not agencies, "decide all relevant questions of law" and "interpret statutory provisions."

● Competence: With a “stay in your lane” tone, the majority proclaimed that courts, not agencies, possess "special competence" to resolve statutory ambiguities.

● Impracticality: Chevron was allegedly “unworkable” because the word “ambiguous” — a semantic multitasker — can have different meanings and, therefore, itself be ambiguous.

● Dilution: With SCOTUS conservatives having nipped and tucked at Chevron since its adoption and deliberately ignored it for the last eight years, the conservative majority in Loper, employing a metaphor/personification hybrid, characterized the Chevron remains as a mere “decaying husk with bold pretensions.”

What do progressives believe motivated SCOTUS to overrule Chevron?

●  Agenda: Progressives generally believe the majority’s stated reasons for overruling Chevron masked its two actual core motives: an ideological and political opposition to numerous federal regulations — a “war on the administrative state” — and a desire to shift power from agencies to the federal courts controlled by a judicial dream team of conservative SCOTUS Justices destined to remain on the Court for many years or, upon retirement, to be replaced by younger Justices with the same ideological and political DNA. The dissenters in Loper ridiculed SCOTUS’s shift away from deference as “a rule of judicial humility giv[ing] way to a rule of judicial hubris” and as a “grasp for power.”

●  History: Progressives note that conservatives, led by groups like the Federalist Society — a key player in the appointment of all current conservative SCOTUS Justices — have long campaigned to dismantle Chevron as a means to restrict federal regulations. They further note that only a month after Loper, SCOTUS — again by a six conservative to three progressive vote — expanded the time for companies to challenge many regulations.

● Defiance: Finally, progressives assert that Chevron is yet another victim of the SCOTUS majority’s increasing defiance of stare decisis when established decisions, like Roe v. Wade, fail to align with its ideology and politics. Stare decisis is a foundational legal principle requiring courts to generally follow established precedents.

In what ways might Chevron’s demise negatively impact animals?

Federal agencies are empowered by many federal statutes to adopt regulations protecting animals, including the U.S. Fish and Wildlife Service (Endangered Species Act), USDA/APHIS (Animal Welfare Act), National Marine Fisheries Service (Marine Mammal Protection Act), EPA (Clean Water Act and Clean Air Act), and Bureau of Land Management (Wild Free-Roaming Horses and Burros Act).

Chevron’s fall could negatively impact animals in several ways:

●  Delays: Animal protection legislation will likely face delays as Congress grapples with drafting precise laws to avoid ambiguities that may trigger a regulatory challenge. With a dysfunctional Congress, delays may be extended.

●  Challenges: Those opposed to regulations protecting animals will increasingly challenge them. In the words of an Atlantic article, in overruling Chevron, “the Supreme Court essentially threw a stick of dynamite at a giant, 40-year-old legal levee,” allowing a flood of regulatory challenges, including against regulations protecting animals.

●  Losses: Larissa Liebmann, a Senior Staff Attorney at the Animal Legal Defense Fund, said: “Losing Chevron could make it more likely that regulations that are good for animals — directly or tangentially — will be overturned.”

●  Caution: With more challenges, regulators must exercise greater caution in writing regulations. This “chilling effect” might slow animal protection regulations.

●  Weakening: Amidst increased challenges, regulators will likely adopt less stringent regulations.

●  Hesitation: To avoid challenges, regulators might hesitate to vigorously enforce regulations.

●  Diversion: More litigation means diverting agency resources from animal protection to litigation defense.

●  Suffering: For all these reasons, Chevron’s demise likely means more animal suffering.

In what ways might Chevron’s demise positively impact animals?

●  Scrutiny: A court free from deference to an agency’s interpretation might interpret a statute to require more forceful animal protections than provided in an agency’s regulations. This could help thwart administrations that are unsympathetic to animal protections from adopting weak regulations.

●  Challenges: Animal advocates can challenge agency interpretations falling short of statutory mandates.

How might Chevron's fall affect animals less significantly than feared?

●  Exceptions: SCOTUS already had partially closed the door on Chevron before slamming it shut in Loper. For example, SCOTUS earlier adopted the “major questions doctrine” exception, eliminating Chevron deference when an agency's interpretation concerned a question with deep "economic and political significance."

●  Disregard: As noted above, a SCOTUS majority opinion last relied on Chevron in 2016 — a troubling practice because, until Loper, Chevron remained a binding precedent that SCOTUS was not free to ignore.

●  Consideration: After Loper, federal courts retain the ability to consider agency statutory interpretations but not the right, in most cases, to defer to them.

●  Continuity: The Loper majority opinion stated that the thousands of cases previously upholding federal agency regulations based on Chevron will not be overturned. The Loper dissent doubted this assurance. Count me among the doubters.

How can we help minimize Loper’s likely adverse impact on animals?

●  Clarity: Encourage our legislators to pass more precise statutes, leaving less room for interpretation.

●  Deference: Urge legislators to pass statutes expressly deferring to an agency's statutory interpretations.

●  Advocacy: Support animal protection organizations on the front lines of defending appropriate animal welfare regulations and challenging inappropriate ones.

Conclusion

While the full impact of Chevron’s demise on animal protections remains uncertain, the celebratory high fives by animal exploitation trade groups, such as the National Cattlemen’s Beef Association, the American Farm Bureau, the National Pork Producers Council, and the North American Meat Institute, leave no doubt that they believe they now have the upper hand with federal regulators. They’re very likely correct. That’s bad for animals.

Frank Brown, UU of Arlington, Virginia