Greenwire (subscription required) had an article yesterday with the breathless headline “Post-
Chevron era tests courts’ readiness to tackle science.” The article noted that, in the recent Supreme Court decision in
Ohio v. EPA, Justice Gorsuch’s majority opinion confused nitrous oxide with nitrogen oxides, using the justice’s confusion to question whether, post-
Chevron, judges have the scientific chops to wade into the complicated scientific waters that will be necessary in a post-
Chevron world.
While the last few paragraphs of the article acknowledge that the end of Chevron doesn’t necessarily mean the end of deference to agency decision-making, the article does fundamentally miss the distinction between deferring to agency interpretation of ambiguous statutes and deferring to agency expert scientific decisions.
I think that Loper-Bright was wrongly decided, but I don’t think that it requires scientific expertise to determine whether a statute is ambiguous and, if so, what the best interpretation of ambiguous legislation may be. Moreover, on the flip side, there are frequent scientific debates regarding where EPA should, for example, set national ambient air quality standards, but that doesn’t make the underlying statutory language ambiguous.
It important to remember that judicial deference to agency expert scientific judgments is not the result of judicial precedent, as Chevron deference was. Instead, it’s written into the Administrative Procedure Act. Courts are to defer to agency decisions unless those decisions are arbitrary or capricious. And whatever one might think of Loper-Bright, it does explicitly point to the APA:
Section 706 does mandate that judicial review of agency policymaking and factfinding be deferential. See §706(2)(A) (agency action to be set aside if “arbitrary, capricious, [or] an abuse of discretion”) [emphasis in original]
I have no illusions about this Supreme Court; it is perfectly capable of ignoring not just precedent, but any reasonable mode of analysis, in order to reach its favored outcome. However, that’s an issue that flows from the Court’s composition, not from the text of
Loper-Bright.
Loper-Bright simply does not provide a basis for concluding that courts will no longer defer to expert agency scientific and technical judgments.
For now, at least, the APA lives on!
