After Reagan’s 1981 inauguration, his administration moved to restrict the ability of executive agencies like the Environmental Protection Agency (EPA) to regulate businesses. By Reagan’s first term, the Supreme Court had turned decidedly conservative in its rulings, setting up his administration for several big wins. He got one in summer 1984 when the Supreme Court ruled 6-0 that the EPA could, in fact, reduce its regulation of air pollution. The agency could do this despite the Clean Air Act of 1963, as amended, requiring the EPA to regulate all new forms of pollution, particularly regarding smokestacks. To arrive at this conclusion, the court ruled that agencies had to follow a two-step decision-making process. Furthermore, the ruling claimed outright that the agency was the expert. Courts would defer to agencies in the future. When Reagan’s EPA claimed that Chevron could expand an existing plant and therefore spew more toxins into the atmosphere, they could do this without having to meet with federal regulators and courts had to assume that the agency knew best. The Democratic Party-led Congress lost out. The lower court order that had forced the EPA to regulate more aggressively at Congress’s behest was overturned. Hence, the Chevron deference.
What began life as a conservative legal tool to expand the polluting potential of America’s energy industry soon became the most important ruling in administrative law, one that anchored an agency’s regulatory power to the Constitution. Under Chevron, courts had to show deference in their rulings to executive agency experts. Even the ones who doubted the very agency they worked for. With the Supreme Court questioning the ability of the Congress to delegate statutory authority to the executive branch, this put even more pressure on the deference doctrine. Now that Chevron is overturned, there remains the less rigorous Skidmore.
Which brings us back to that Friday when a week of decisions drove me to doomposting. In addition to musing about the rollback of executive authority, I made sure to highlight the challenges facing the country, problems that demand vigorous public policies to combat. Per- and polyfluoroalkyl substances (or PFAS) are everywhere. These are often called “forever chemicals” that are used in industrial manufacturing, fire-proofing, and non-stick kitchenware. PFAS cause a myriad of problems, including cancer. Since U.S. cities and states lack the singular power that the federal government possesses, it falls to a federal government to regulate but one with its regulatory powers severely curtailed. Same with pesticides like glyphosate (the active ingredient in “Roundup”), whose liability potential Beyer is actively seeking to avoid. Of course there is also climate change threatening all life on earth. Only an active federal government stands a chance of forcing petroleum companies like Chevron to reduce their greenhouse gas output.