Splitting the deference

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Jul 02, 2024 View in browser   By Alex Guillén, Pamela King and Allison Prang THE BIG IDEA Legal experts say the Supreme Court's scrapping of the Chevron deference will have ramifications for presidents of both parties. | Mark Schiefelbein/AP CHEVRON'S WAKE — The cheers on the right and jeers on the left had barely died down in the wake of the U.S. Supreme Court’s scrapping of the Chevron deference before legal eagles on both sides of the issue began noting that the landmark ruling was one that could cut both ways. The high court’s reversal of the decades-old doctrine that saw judges defer to federal agencies’ expertise in interpreting ambiguous regulations does represent a long-sought victory for conservatives who will now be better positioned to upend rules they dislike, such as the climate and energy measures imposed under President Joe Biden. But legal experts who spoke with Pamela King of POLITICO’s E&E News and our Alex Guillén said that the deference’s demise could also hinder former President Donald Trump’s ability to erase the Biden administration’s imprint if he returns to the White House. “Regardless of who is president, this decision likely will lead to more litigation challenging administrative actions and will likely lead to more losses by federal agencies,” said Dan Jarcho, a partner at the law firm Alston & Bird who is a former Department of Justice trial attorney. That view is shared by Andrew Wheeler, who served as EPA administrator under Trump and has expressed interest in returning to the post. “Activist judges at both ends of the spectrum are going to have a little bit more leeway,” said Wheeler, now an attorney at Holland & Hart. “It's possible that a Republican regulation could be overturned or a Democratic regulation could be overturned." The Chevron doctrine required courts to defer to federal agencies in cases where they were viewed as having reasonably interpreted ambiguous statutes like some provisions of the Clean Air Act. And while environmentalists acknowledge that the ruling could help them fight regulations they oppose, Natural Resources Defense Council attorney David Doniger said stopping deregulation isn’t the same thing as acting. “If you have new problems like climate change, new problems like the next pandemic, and a hypothetical second Trump administration mishandles them, doesn't want to do anything about them — it's pretty darn hard to get the courts to force that action,” said Doniger, who argued the original Chevron case in 1984. The new ruling puts more pressure on Congress to pass laws that are more specific or clearer in delegating decision-making authority. And while the impact theoretically cuts both ways, College of William and Mary law professor Aaron-Andrew Bruhl said it will put Democrats at a disadvantage. "If part of your agenda is just for agencies to enforce less or to reduce their budgets or the like, then you can accomplish that even without any deference from the courts,” Bruhl said. “Where[as] the Democratic Party tends to want more active regulatory agencies, and for that you do tend to need deference more, so that courts will go along with what the agencies are trying to accomplish." That split was reflected on Capitol Hill, where Republicans welcomed the ruling while Democrats were more circumspect. "This decision rightfully hands the power back to Americans’ elected representatives in Congress to write our nation’s laws and to the courts to interpret them," House Oversight Chair James Comer (R-Ky.) said in a statement. On the other side, Sen. Ben Cardin (D-Md.) noted that Congress has long relied on agency expertise on policy matters. "Technical experts at agencies, not judges, are best able to make these decisions in the first instance when Congress passes a law that requires subject matter knowledge to correctly implement and carry out legislative intent," Cardin said in a statement. While calling on Congress to legislate more frequently and precisely might seem like a reasonable idea, Bruhl said there are numerous obstacles standing in the way, including a packed legislative agenda, limited staff expertise and partisan divides that make it difficult to find consensus even on issues where there is general agreement. "The people who say, ‘Congress should do its job, and now it can or now it'll have to’ — I think it's more complicated than that," Bruhl said.   Understand 2024’s big impacts with Pro’s extensive Campaign Races Dashboard, exclusive insights, and key coverage of federal- and state-level debates. Focus on policy. Learn more.     AROUND THE NATION POWER VACUUM — A new study led by Harvard University shows that some rural counties across the U.S. have become EV “charging deserts,” David Ferris reports for POLITICO’s E&E News. Thirty-four counties that once had public charging stations no longer do, according to the study, and three dozen other counties have lost most of theirs. The study shows the U.S. charging network’s reliability is at 78 percent, well below the Biden administration’s 97 percent goal. The charging network is “uneven,” according to Omar Asensio, a Georgia Institute of Technology professor doing a fellowship at Harvard’s Institute for Business in Global Society and one of the authors of the study. Loren McDonald, the founder of the EV-charging data hub EVAdoption, said multiple factors could be contributing to the trend. “They didn’t get a lot of use, and they got old and stopped working,” he said. “There was no motive, either by the charging network or the host, to keep them going.” DELAYING DISCLOSURE — California is proposing delaying implementation of its landmark climate disclosure laws by two more years, giving companies more time before they are legally required to report their exposure to climate risk and their carbon footprints, Debra Kahn reports. Gov. Gavin Newsom’s administration proposed delaying the laws’ implementation timelines in budget trailer bill language released last week, sparking opposition from state Sen. Scott Wiener, who sponsored one of the laws. Wiener said in a statement that the California legislature didn’t agree to the proposed delay and noted the law already will take six years to phase in. DATA DIVE ANTI-ESG SLOWDOWN — New data shows a sharp decline in Republican-led bills targeting environmental, social and governance principles, but it’s not because the GOP has thrown in the towel, according to law firm Ropes & Gray. Just 61 anti-ESG bills were introduced or signed into law, including 10 still pending as of mid-June, when the vast majority of state legislatures finished their sessions, down from 130 in 2023. Ropes & Gray said that it does not believe the decline “reflects a drop in concern over ESG in red states” but rather underscores that they are “focused on the implementation of their existing anti-ESG laws.” Just five such measures have been enacted this year compared with 31 in 2023 — some of which, like an Oklahoma law punishing financial firms for considering ESG factors, have generated significant pushback and faced litigation. YOU TELL US GAME ON — Welcome to the Long Game, where we tell you about the latest on efforts to shape our future. Join us every Tuesday as we keep you in the loop on the world of sustainability. Team Sustainability is editor Greg Mott and reporters Jordan Wolman and Allison Prang. Reach us all at gmott@politico.com, jwolman@politico.com and aprang@politico.com. Sign up for the Long Game. It's free! WHAT WE'RE CLICKING — Bloomberg talks with a micromobility expert about why e-bikes are taking over Europe and how they could become more popular in North America. — Biden administration climate envoy John Podesta tells the Financial Times that the U.S. is considering carbon pricing to fight "freeriding" by foreign producers. — BlackRock is changing its policies for voting on shareholder proposals to account for differences between U.S. and European investors, the Financial Times reports.   SUBSCRIBE TO GLOBAL PLAYBOOK: Don’t miss out on POLITICO’s Global Playbook, our newsletter taking you inside pivotal discussions at the most influential gatherings in the world. Suzanne Lynch delivers the world's elite and influential moments directly to you. Stay in the global loop. SUBSCRIBE NOW.       Follow us on Twitter Debra Kahn @debra_kahn Greg Mott @gwmott Jordan Wolman @jordanwolman Allison Prang @AllisonPrang   Follow us

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