CHEVRON CHARADE — Buckle up for a major Supreme Court decision this week that could curtail the power of federal agencies to set policy on a range of issues, climate and energy chief among them. While it's unclear how far the High Court will go, the expectation is that the conservative majority won't pass on the chance to rein in the federal bureaucracy by dialing back the deference given to policy experts. Climate policies and other regulations could become more vulnerable to legal challenges after a ruling hostile to the Chevron deference, amounting to a “net negative” for efforts to fight global warming, said Jody Freeman, director of Harvard Law’s environmental and energy law program. “It can't help but make administrations that want to address the problem with existing law think twice, which is of course what the people who dislike Chevron are hoping for,” Freeman said. “Every legal interpretation agencies make will be more vulnerable because they will lose the ‘presumption of regularity’ or the benefit of the doubt the government normally gets, which is what deference is all about.” That could trigger a cascade of regulatory uncertainty, potentially trickling down to private sector sustainability efforts. “One of the benefits of Chevron deference is intended to create stable national rules — that is that clearly agencies would be in the driver's seat,” said William Buzbee, a Georgetown Law professor who specializes in administrative and constitutional law. “If Chevron deference is struck down, the big problem could be a risk of a sort of balkanized country, or a country which actually might have 11 different (court of appeals) rules about what an agency can do. And businesses tend to dislike instability and uncertainty.” David Doniger, a lead attorney at the Natural Resources Defense Council who argued the original Chevron case on behalf of the group in 1984, said a ruling that scales back or scraps the doctrine would lead to “chaos” in the lower courts. “You're going to have decisions that turn on the policy preferences of the judge,” which could often align with that of the president who appointed them, Doniger told the POLITICO Energy podcast last week. “And in the meantime, everyone from environmentalists to companies would be less certain about what the rules of the road are.” To be clear, we don't yet know how broad a ruling will be. But we’ll know soon enough: It could come Wednesday. Other Supreme Court watchers aren’t expecting a massive overhaul. Ron Levin, a law professor at Washington University in St. Louis, said that while he does expect a couple of justices to take the position that the doctrine should be tossed out, there hasn’t been a lot of evidence that the court will scrap it. “My prediction is that Chevron will be largely maintained with minor tweaks which’ll be described as clarifications,” said Levin, who focuses on administrative law. He said proponents of overruling Chevron say Congress could be more inclined to tackle policy issues as a result, but gridlock is likely to remain the norm there: “Changing the standard review in the administrative realm isn’t going to eliminate all those reasons Congress often fails to act.” Freeman said she thinks the Biden administration’s greenhouse gas rules for the transportation, power and oil and gas sectors are on solid legal ground — but that the already-fierce legal battles over them fueled by the 2022 West Virginia v. EPA ruling will only expand if the Chevron deference is overturned. “Private sector efforts on climate would be more important if the federal government recedes from playing a leading role,” Freeman said. “But private action alone, while important, is too piecemeal, and can't replace the government's role, which is to set sector-wide rules.”
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