Photo by Eric E. Johnson
By Gretchen Gehrke, Chris Sellers, and EDGI
Environmental governance is at a pivotal moment. With the shifting legal landscape over the last eight years, including the spate of Supreme Court (SCOTUS) rulings earlier this summer, environmental protections are being undermined from multiple angles. The future of environmental regulations and the regulatory state are perhaps more vulnerable than at any other time in recent history.
A Shifting Legal Landscape
Court Responses to Deregulation
By design, there has always been a dance between the different branches of government and the power they assert. This dance is particularly interesting when one branch–the Executive Branch–acts to hypothetically shrink its power through deregulation. While the Carter administration initiated the shift toward deregulation, starting with the transportation sector, it was during the Reagan administration that a modern deregulatory agenda consolidated, extending from banks to telephones to radio to environmental policy, and helping to mark off a post-New Deal world. During the Reagan years, the Supreme Court under Chief Justice Rehnquist, increasingly leaned conservative, and sided with the Reagan administration in 80% of the cases litigated. The Rehnquist Court did not have an expressly deregulatory leaning, however, as several of the conservative justices were “traditional” conservatives that backed a New Deal regulatory state and the Court did reject some important deregulatory efforts by the Reagan administration. The Court was largely deferential to the Reagan administration, however, including handing down the decision in the landmark case Chevron vs NRDC (1984) that the Court should defer to federal agencies on appropriate actions when there are statutory ambiguities (in this case, deferring to its deregulatory actions). As the historical analysis of court deference by Lee Epstein and Eric Posner shows, however, the Supreme Court has evolved to be substantially less deferential ever since the Reagan administration, and there is evidence that judicial “activism” is at the root of this shift. Each successive administration after Reagan won a lower percentage of cases litigated at the Supreme Court level than the preceding administration, with the Obama administration winning just 52% of the Supreme Court cases litigated. While this trend would predict that the Trump administration would lose half of its Supreme Court cases, the actions and judicial record of this recent presidency still stand out.
The Trump administration (2017-2021) was marked by aggressive policy decisions, including hasty attempts to throw out existing environmental regulations and codify a deregulatory agenda. The Trump administration’s brazen rush toward deregulation threatened extensive harm to public and environmental health. The administration held relative disregard for statutory authority, rulemaking procedures, and scientific evidence, however, and the majority of the Trump administration’s de-regulatory attempts were litigated and ultimately thrown out in court. Courts, for example, blocked the Trump administration from reversing agricultural worker pesticide protection standards and from allowing companies to simply kill migratory birds without recourse. The Institute for Policy Integrity tracked these issues and found that the Trump administration lost in 78% of the cases litigated about its federal agency policies.
However, the courts’ ability and inclination to curb environmental deregulation has already eroded. While the Biden administration has been more successful in court than the Trump administration was, it has faced several losses in court on issues of strengthening regulations and reversing deregulatory actions by the Trump administration. For example, the Biden EPA restrictions on hydrofluorocarbon sales were remanded, and its longtime-coming ban on the neurotoxic pesticide chlorpyrifos was vacated.
The Shifting Composition of the Courts
The backstop to environmental protections in court is slipping in large part because there has been a notable shift in the ideological makeup of the federal judiciary as a whole since 2017. Throughout the Obama administration, Senator Mitch McConnell (R-KY) upended judicial confirmation norms and impeded President Obama’s ability to appoint judges. As Senate Majority Leader during the last two years of the Obama administration, Senator McConnell nearly halted judicial confirmation hearings, ultimately leaving more than 100 open seats for the Trump administration to inherit, and then confirmed the Trump appointees at record speed. Senator McConnell also played a significant hand in shaping the extremely conservative Supreme Court, first by refusing to hold senate hearings for a Supreme Court nomination by President Obama in 2016. McConnell held that Supreme Court seat open for nearly a year before President Trump took office, and then altered multiple rules and processes to rapidly secure the confirmation of all three Trump nominations, including that of Justice Amy Coney Barrett, who was nominated by President Trump just six weeks before the 2020 election.
While the Supreme Court has leaned conservative since the 1980s, the current Court is the most conservative it has been in a century. All six of the conservative justices on the Court have strong ties to the Federalist Society, a right-wing legal think tank and training organization that espouses textualism. Today the conservative majority on the Supreme Court applies textualism with an unmistakable deregulatory bent. It has done so by formulating a “major questions doctrine” that is itself new, ironically, and without any clear Constitutional or other judicial precedent. In West Virginia vs EPA (2022), the majority forbade agencies from tackling matters of “vast economic and political significance” without clear and explicit authorization by Congress. Justice Kagan’s dissenting opinion was blunt about how this new doctrine amounted to judicial activism on behalf of deregulation, flying in the face of a long-standing judicial consensus that the Constitution authorized Congress to delegate broad powers. She went on to accuse the court majority of being:
‘textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed’ (p 28-29).
As the conservative majority has then moved to apply this new “major questions” doctrine in subsequent decisions, even some of its usual allies have balked. In striking down an EPA Waters of the United States rule in Sackett vs EPA (2023), it wielded the “major questions” doctrine to challenge the agency’s long-standing assumptions that the Clean Water Act extended not just to contiguous surface waters but to waterways connected, for instance, through groundwater. Conservative Justice Kavanaugh took issue with the majority, on textualist grounds. For him, the majority decision narrowing the statute’s scope, to only allow application of the Clean Water Act to waters having surface connections with navigable streams was too much of a departure from long-standing agency and judicial determinations, and wasn’t textually accurate:
‘In my view, the Court’s “continuous surface connection” test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents. The Court’s test narrows the Clean Water Act’s coverage of “adjacent” wetlands to mean only “adjoining” wetlands. But “adjacent” and “adjoining” have distinct meanings’ (p 2).
Justice Kagan, concurring in judgment and opposing the majority opinion, had a more pointed perspective on the meaning of the major questions doctrine. For her, its appeal to some underspecified yet unmet standard of statutory clarity pointed to an actively deregulatory intent. The major questions doctrine and the Sackett vs EPA decision places “a thumb on the scale for property owners—no matter that the Act (i.e., the one Congress enacted) is all about stopping property owners from polluting” (p 4). Ultimately, Kagan wrote, “The Court will not allow the Clean [Water] Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much” (p. 6).
After the conservative super majority in the Supreme Court handed down these and several other decisions limiting statutory authority, in the 2023-2024 session it took aim at administrative law. During that most recent session, it rendered several decisions that will, in all likelihood, have significant and cascading deregulatory impacts on environmental policy-making.
Deregulation at the Hands of the Court
Supreme Court decisions handed down this past June (2024) have further tilted the landscape of administrative law toward deregulation, by adding new judicial barriers to existing as well as newer environmental protections. The rulings will open existing regulations to litigation and curb their enforcement as well as slow down the promulgation of new regulations. No matter who is elected to the White House or Congress this fall, the court has poised much of our judicial system to itself become a major force for unraveling our current system of environmental regulation.
The Court severely restricted many agencies’ ability to enforce their regulations through its decision in Security and Exchange Commission vs Jarkesy, which held that it was unconstitutional for the SEC to hold in-house trials with agency administrative law judges for civil prosecutions. If plaintiffs litigate the EPA’s own current use of in-house administrative law judges based on the Jarkesy opinion, the EPA could lose the use of these courts and be forced to use the oversattled district courts to pursue penalties, which would cause significant delays. Abolishing the EPA’s existing in-house administrative courts would also deprive the agency of means for enforcing certain rules like those under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
Another court decision likely to have substantial impacts on environmental regulation is the SCOTUS decision in Corner Post vs Federal Reserve, which effectively removes the statute of limitations for many regulations. This will prompt an onslaught of litigation that would otherwise be temporally excluded.
The Court overruled Chevron deference, its official policy to defer to agencies when statutory authority is unclear, in its far-reaching decision in Loper Bright vs Raimondo. This is likely to not only narrow agencies’ authorities in new rules, but will also dovetail with the Corner Post decision to open up litigation about many existing regulations that will no longer have the protection of Chevron deference. This will likely result in the dismantling of regulations.
By removing Chevron deference, the court has further consolidated a new standard of textualism—some may argue strict constructionism—in what agency rulemakings it will allow. The Court has positioned itself and the lower courts to enforce new unwritten standards for how explicit Congress will need to be about the statutory authority it grants to agencies, standards that this Court appears ready to apply retroactively as well as in any new legislation.
These decisions by the U.S. Supreme Court have been made in full awareness of how, for many years now, Congress has been extremely gridlocked: the current Congress on track to be the least productive in history. Also, given the thin knowledge base about environmental or other regulatory issues on which most legislators operate, it is extremely unlikely that Congress will pass detailed, prescriptive laws anytime soon that specify all the emerging issues that environmental or other agencies should address.
In addition to agencies being hampered by more narrow interpretations of their statutory authority and reliance on a gridlocked Congress to pass new laws, other recent SCOTUS decisions have hampered agencies’ ability to finalize regulations that are clearly within their existing statutory authorities. The SCOTUS decision in Ohio vs EPA blocked the EPA from implementing a plan under the Clean Air Act, not because the plan was flawed or outside the agency’s authority, but because the EPA did not explain the plan’s reasoning sufficiently in its responses to public comments. In lowering the bar for public comments that warrant a response from the agency, the Court has imposed a huge new burden on agencies’ public comment processes for new rules, and opened the door for much more expansive litigation that agencies will now face on this procedural step in the regulatory process.
What these four recent SCOTUS opinions will mean for environmental governance is a judicial impetus toward deregulation that may well prove overwhelming, no matter who leads the Executive Branch. The EPA will be tied up in court over existing rules and programs, even as it is forced to await detailed directions to move forward on critical existing and emerging issues, from a Congress that is likely to remain deeply polarized and gridlocked.
Environmental Governance Moving Forward
The deck is now stacked against environmental protection regulations, by the deregulatory decisions and doctrines handed down by the Supreme Court. What this means for environmental governance in the coming years hinges on future court decisions, as well as on the makeup of the executive and legislative branches. For example, the courts are expected to assess the constitutionality of the Good Neighbor Plan, and if it were found to be unconstitutional, then the EPA would have far fewer options for how to regulate air pollutants that cross state boundaries.
Based on speeches and other campaign materials, a future Trump administration would plan to roll back several existing environmental regulations, such as the CAFE fuel economy standards, and dismantle many regulatory agencies, as laid out in Project 2025. A second Trump administration’s deregulatory actions would be more likely to pass judicial review given the new makeup of the federal judiciary, particularly the Supreme Court, and sophisticated strategy adaptations stemming from the first Trump administration’s poor record in court. It’s also likely that an executive deregulatory agenda would be supported by more deregulatory court decisions that are expected in the coming years, and a future Trump administration would likely cease to defend ongoing legal challenges to Biden administration rules. There are congressionally mandated investments in the clean energy sector based on the Infrastructure Investment and Jobs Act (IIJA) of 2021 and the Inflation Reduction Act (IRA) of 2022, but these acts did not necessitate much regulation, and their implementation could be slowed considerably. Thus, it is likely there would be little impeding a deregulatory agenda that reduces environmental protections in the next four years under a future Trump administration.
A future Harris administration, on the other hand, would likely continue and perhaps seek to expand many of the Biden administration’s efforts to address the climate crisis as well as environmental injustice. While few details on any plans for climate or environmental policies are available in Harris’ campaign materials, Harris’ prior support of the Green New Deal and her Senate and VP voting record suggest that her administration would seek to develop robust new environmental regulations, while defending as well as enforcing most existing rules and leaning on the authorizations under the IIJA and IRA to achieve many climate goals. With the current deregulatory leaning in the federal judiciary, it is likely that many existing environmental rules as well as new environmental regulations will be met with more ambitious and successful resistance in court. In order to effectively promulgate new environmental protections, the Harris administration would need more explicit authorities granted by Congress to address key issues such as cumulative impacts and emerging contaminants.
The legislature may again become as central to environmental governance as it was in the 1970s when Congress passed landmark environmental laws like the Clean Air Act, Clean Water Act, and National Environmental Policy Act. Given the very narrow approach the Court has taken to interpreting statutory authority delegated by Congress to agencies, Congress will need to pass laws that explicitly call for new environmental protections and appropriate methods to achieve them. While this will be a formidable challenge with a gridlocked Congress, it is perhaps the only robust path toward greater environmental protections under this judicial landscape.