During its last session, the Supreme Court’s conservative majority acted keep after slaughter for federal agencies’ authority to set and enforce policies, including those aimed at mitigating climate change. His decisions have already created upheaval for courts considering issues ranging from the approval of a solar project to vehicle emissions rules. This has improved the legal landscape for judges and for regulators, and as a result may slow climate progress.
The uncertainty has startled, but not surprised, legal experts who predicted earlier this summer that four rulings limiting federal authority could limit the ability of the Environmental Protection Agency and other agencies to limit pollution, control toxic substances and mitigate global warming.
“It’s going to throw climate policy into many years of litigation about what these cases actually mean when applied to individual arrangements,” said Deborah Sivas, an environmental law professor at Stanford University. “It’s not good for the energy transition that we actually have to go through.”
In its most consequential ruling, the Supreme Court overturned the so-called Chevron doctrinewhich since 1984 has given federal regulators wide latitude to use their expertise to interpret ambiguities in the law. Another ruling effectively eliminated a six-year statute of limitations on lawsuits against federal regulations, opening the door to challenges to any policy, no matter how old it is. A lawsuit against the Securities and Exchange Commission invalidated the use of internal administrative judgeswhich jeopardizes a key enforcement mechanism used by more than a dozen agencies. And the conservative majority, which rules in Ohio v. EPA, blocked a federal smog reduction plana victory for polluters and conservatives who have long argued that EPA regulations create unnecessary burdens.
The spate of litigation stemming from those decisions began at the Supreme Court. On July 2, shortly after Chevron was thrown out, the court, in a case that the Federal Energy Regulatory Commission’s approval of a solar project, sent the matter back to the US Court of Appeals for the District of Columbia Circuit. Justices asked the lower court to reconsider “in light of Runner Bright Enterprises against Raimondo,” the decision that overturned Chevron deference.
This can be a problem because the DC Circuit cited Chevron when it ruled in favor of FERC in February. Utilities challenged the agency’s decision to make a solar and battery storage facility in Montana eligible for benefits under an act of 1978 which requires utilities to buy power from small renewable energy projects. Utility groups argued that the project in question should not qualify because its combined power capacity exceeds the size allowed under that law. The DC Circuit, appealing to Chevron, deferred to the agency from upholding its decision.
Sivas said the justices will most likely stand by their decision, but will have to explain their reasoning without relying on Chevron. While this case may ultimately demonstrate the limits of Chevron in reversing regulatory action—after all, jurists have other precedents they can cite, including the Skidmore deference that favors agencies when they provide persuasive reasoning for their actions—it is indicative of the litigation to come now that the Supreme Court has “watered down the influence of agencies,” she said. “We are already in the spot.”
Appeals judges, taking cues from the Supreme Court, have begun sending cases back to lower courts for reconsideration in light of the Supreme Court’s latest rulings. Last month, the 5th Circuit asked a Texas district court to review its decision to uphold a Department of Labor rule allow retirement fund managers to consider climate risks when investments are made. Republican state attorneys general and fossil fuel companies considered the rule “arbitrary and capricious,” but the Texas court cited Chevron in rejecting their challenge in September. A reversal can jeopardize the ability of investors to do so align financial decisions with climate action.
In other cases, courts ask litigants to explain how recent Supreme Court decisions may affect their claims. On July 30, for example, the DC Circuit Court asked the plaintiffs in lawsuits challenging vehicle emissions standards set by the EPA and the National Highway Traffic Safety Administration to explain how the Chevron decision and Ohio v. EPA changes their arguments. The rules represent a broader push by the Biden administration to reduce emissions from the transportation sector, and could serve as an early test of how such climate policies might fare in a post-Chevron world.
It would be hard to overestimate the impact that the fall of Chevron could have. Although the Supreme Court did not rely on the doctrine for the last dozen or so years lower courts leaned on it about 17,000 times since 1984 to consider the legality of regulations governing everything from food safety to air pollution. They no longer have that longstanding precedent to guide them.
Jason Rylander, legal director of the Center for Biological Diversity, said the impact of the Supreme Court’s four recent decisions on these cases remains unclear, in large part because the end of Chevron by design gives courts greater discretion to rule on agencies’ interpretations of federal law . Until now, he said, Chevron deference has “put a small thumb on the scale” in favor of agencies like the EPA. Now courts must “come up with what they believe is the best reading of the statute.” They may agree with an agency, they may not. Either way, courts have more power to reach their own conclusions, which sows greater uncertainty — especially among courts that are conservative, like the 5th and 11th Circuits.
Sending cases back to lower courts for further review will almost certainly delay decisions, limiting the effectiveness of federal policies to address climate change and other issues. But an even greater impact could be felt by the agencies charged with taking those actions and already facing mounting scrutiny and lawsuits.
“Agencies will have to be even more careful than they already are to ground proposed regulations in the text of the statute and explain why they believe the regulation is consistent with the intent of Congress,” Rylander said.
More troubling, continued legal chaos could discourage agencies from pursuing the bold policies needed to address the climate crisis, Sivas said.
“If the agencies don’t think they can ever get these things past judicial review,” she said, “they’re just not going to try.”
The elimination of Chevron is already a point of contention in debates on FERC’s Order 1920a rule released three months ago that requires regions to engage in long-term transmission planning to facilitate the deployment of renewable energy. The rule has already faced legal challenges from groups such as the Louisiana and Mississippi Public Service Commissions, and opponents have cited the demise of Chevron as one reason why jurists should consider the rule invalid. In another chilling example, lawyers for the US Air Force recently told the EPA that the end of Chevron means the Air Force should not be required to comply with an order to clean PFAS-contaminated drinking water at Tucson International Airport in Arizona.
Meanwhile, the fossil fuel industry and other polluters, emboldened by the Supreme Court’s recent rulings, have mounted challenges to environmental regulations. In late July, Republican state attorneys general, rural electric cooperatives and fossil fuel trade organizations asked the Supreme Court to suspend an EPA rule to reduce greenhouse gas emissions from coal and gas-fired power plants. As in Ohio v. EPA, the plaintiffs are once again asking the Supreme Court to block the rule, even if it goes through the DC Circuit. (The Supreme Court previously struck down another EPA power plant emissions rule in 2016, the Obama-era Clean Power Plan, which never took effect.) Legal experts say the outcome of Ohio v. EPA proves that the Supreme Court is willing to go that far – reaching actions – and that it clearly encouraged this request for an emergency stay.
“Industrial lawyers believe it’s open season to go after regulations,” said Michael Gerrard, an environmental law professor at Columbia University. Corporate clients, seized by Ohio v. EPA and other Supreme Court victories, concluded that “the cost of the lawsuit is small compared to the benefit if they win,” he said.
This attitude is evident from recent publications by large law firms that encourage clients to challenge federal regulations. “Now is a good time to reconsider whether to challenge existing rules or previous statutory interpretations,” one large law firm recommended following recent Supreme Court decisions. Akin Gump, a global firm that from 2019 to 2023 earned $7.9 million in fossil fuel-related lobbying, highlighted how the decision in Corner Post, which effectively ended the statute of limitations on challenges to government regulations, creates new opportunities for clients and recommended companies to file their lawsuits “in forums that are home to more conservatively inclined judges.”
The expected increase in challenges to environmental regulations is compounded by ongoing problems in Congress, Rylander said. Lawmakers are unlikely to revise laws to include detailed language outlining how agencies can act on climate change. That means federal agencies will increasingly have to rely on laws like the Clean Air Act — but they can’t if they’re stymied by turmoil in the courts.
“We’re at a critical juncture for climate action, and in the absence of Congressional legislation, we’re going to ask our federal agencies to do more and more with the statutory tools they already have,” Rylander said. “If courts start to stand in the way, it will be disastrous for the achievement of our climate goals and for humanity.”
