U.S. Supreme Court takes aim at fundamental protections
What keeps you safe when you drink water? Take medicine? Get on an airplane? Or take out a loan? It’s often a government agency charged with implementing our health, safety and consumer protection laws. But recent rulings by the U.S. Supreme Court have cast a long shadow. Legal experts say the rulings point to a Court that is actively working to unravel longstanding protections and policies, not just for the environment but across the board, and the harm will be far reaching.
Host:
Amy Barrilleaux
Guest:
Evan Feinauer, Clean Wisconsin attorney
Background Reading:
Rulings from U.S. Supreme Court a disaster for the environment
Clean Wisconsin takes legal action to protect communities from toxic mercury pollution
New EPA power plant rules will save lives in Wisconsin
Where to Listen:
Transcript:
Amy: Recent decisions by the Supreme Court have cast a long shadow. Legal experts say the rulings point to a court that is actively working to unravel longstanding protections and policies, not just for the environment, but across the board. And the harm will be far reaching. Joining me is Clean Wisconsin attorney Evan Feinauer. Let’s start with the ruling that’s been getting a lot of attention. The 1984 Chevron decision. What did the Supreme Court do with respect to that decision?
Evan: So the Supreme Court ruling overruled Chevron. So that is no longer a good law. That cases isn’t on the books. And that’s a big deal. I mean, you mentioned 1984. That’s 40 years. This is a law that agencies have relied on, Congress has relied on, because they’ve understood it to be the law of the land in writing every new law and amending every statute that relates to how agencies operate. States have depended on this. So it is really a big part of the fabric of administrative law. And it’s going to be a challenge to see how this gets sort of digested by the system and what all changes it brings.
Amy: So what did, Chevron do? I mean, you think about, oh, the fabric of administrative law — that doesn’t really feel, like something we should be super upset about. But what did Chevron do fundamentally for for this country?
Evan: Yeah. So Chevron is interesting because it was in some ways, an act of judicial humility. And what it was, was a representation, really a recognition by the judges that they don’t know certain things. They’re not experts at certain things. So the way it turned that into a rule was to say, when a statute’s ambiguous about what an agency can or can’t do, there’s two different ways you could read a statute, both of which are reasonable, so long as the agency shows up with a reasonable interpretation of the statute in support of the thing it’s doing, usually, putting out a standard, or some sort of rule that folks have to follow. We’re going to defer to that as the court. We’re not going to second guess the agency’s interpretation of the statute, so long as it’s reasonable. And that allowed courts to still stop agencies that went too far and did things that were in conflict with the laws that Congress had written, while also recognizing that on some of these really tough scientific technical questions, the agency’s interpretation of what Congress told them to do should be given weight, because they’re the ones that Congress told implement the law, and they’re the ones that implement it every day. And the judge might be looking at it for the first time. And so the idea was that this really helps people in this country, because it leads to a consistent and rational application of these laws that do things like protect public health, the environment, you know, make sure our financial markets work correctly, that banks aren’t committing fraud. All of these things that agencies do that we kind of take for granted, which is sort of the point. These things operate in the background. You know, unless you work at one of these agencies, you might not realize you go to the supermarket and buy meat that’s been inspected. And so it’s really scary, I think, for a lot of reasons, because it deprioritizes the deep expertise and experience of all these folks and potentially injects more politics and policy, because all it takes is one judge who has a different policy preference to unsettle things in a way that isn’t what Congress intended and isn’t good for the public good.
Amy: I think it’s something that people don’t necessarily think about or understand that when Congress or the state legislature writes a statute, it’s not going to have every detail of every possibility that could happen. So when you talk about things, especially the kinds of things that you work on, like water quality, that’s a real kind of scientific field. And so you’re not going to have a lawmaker delving into, well, you know, what does this mean to have a safe level of PFAS, or how many parts per million of nitrates should be in the water? That’s where you have experts. What does this do to that expertise at places like the EPA, the FDA, all of those agencies that we kind of think about as being tasked with protecting us.
Evan: Yeah, it’s a great point, because a lot of environmental law is technical and scientific, and a lot of times Congress does intentionally write the statutes that tell EPA what to do in ways that give it discretion to act. So it’ll say, you know, as you indicated, to do things as necessary to protect health, you know, to to limit discharges of certain pollutants in a broad standard that is going to protect public health, rather than saying minimize it to this specific number. And the reason that Congress does that is because they know that they can’t anticipate every situation. And plus time is going to go on. They’re going to pass this law and ten years are going to go by. Technology is going to change. Industry is going to change. A lot of things are going to change, and the agencies need to be able to flexibly adapt to that. And the way they do that is by having a general standard that they apply specific circumstances to. And doing that is really hard, and it requires that expertise. The scientists, the economists, all those folks working hard, the doctors. And they do that to make these decisions. So then when they come into court, not having that being given weight anymore, it really deprioritizes and gives less weight to that expertise. So what we could have is, is rules and things that are easier to strike down. Even though all of us sitting here looking and going, ‘Gee, it really seems like the agency was making a good faith effort to just follow the science to do the thing that Congress told it to do.” And so what you’re seeing is some folks saying, “Well, this is good because it restores decision making away from agencies and puts it in the hands of Congress.” I think it’s exactly the opposite. I think what this does is it takes the power away from Congress that wrote the laws the agencies are trying to follow, and puts it in the hands of judges. This is a shift of power away from not just agencies, but also the legislature to judges. And in the federal system, the judges are unelected and serve for life and are not policy experts. They’re legal experts. So that’s that’s part of the underpinning of this that’s so concerning, is it would be one thing if we thought Congress wanted this or this was consistent with their wishes, but it’s not. And we know it’s not because Chevron’s been there for 40 years, and they keep drafting laws that are consistent with Chevron. And any time anybody said, hey, should we pass a change to these laws to get rid of the Chevron deference? It doesn’t pass. It doesn’t have support. Congress didn’t want to get rid of Chevron. So those folks apllauding this as a return of power to Congress. It’s just inaccurate.
Amy: So it’s hard for folks right now to remember a time before we had regulations. And I think “regulations” is sometimes thrown around as a bad word. “Oh, these regulations, they make business hard.” But we think about what regulations are out there. And you mentioned a few of the things that they cover, things like, safety of our water, clean air, the safety of the medicines we take, the food we buy, the airplanes we get on, the cars we drive. It is a long, long list, our bank accounts or when we apply for a loan. What was it like, and you weren’t alive then, neither was I, before these agencies really existed? These agencies like the EPA, the FDA, the FAA, all these things that we’ve come to know. What was it like in the United States back then?
Evan: Yeah. So a lot of these agencies draw their history from the period immediately following the Great Depression, which is kind of a way of answering your question. These were New Deal era innovations in the law that were intended to protect the public good and promote the general welfare by making sure that we had a way of dealing with the increased size and complexity of the American economy. So that is relevant here because it is quite literally the case that the statute the majority relied on in Loper Bright to strike down Chevron is from a law called the Administrative Procedure Act, which dates back to the 1930s and 40s. These were laws that were passed following that Great Depression era when we had the New Deal, we had this expansion of the federal government to match the expansion and complexity of the US economy, because we got the chance to experience what happened when we didn’t have that, when we had unregulated financial markets, when we didn’t have environmental standards that applied, to water and air. We know what that look like. And so really, we had a lot of administrative agencies before we even had the modern version of the EPA and the Clean Water Act, the Clean Air Act. Those all came decades later, and they were building on this body of law that long existed for things like those other topics you were talking about — safety and how the railroads work and bank accounts and things. So, you know, the idea that the Environmental Protection Agency or other public health organizations were somehow these like radical things, these were extensions of stuff we’ve now been doing in this country for almost 100 years. So not only have we lived that way once and it didn’t quite work out, which is why we have these agencies. It really has been a consistent theme ever since that time. And so in some sense, this is unwinding the clock to 1984. But there’s another sense in which it is actually unwinding it even earlier. And there are those on the court, and they make this clear through their concurrences, that if they could, they would actually take us back to that Great Depression era in terms of the state of affairs of federal administrative law. And I can get into that more. If you want, but there’s some scary ideas out there that folks thought were pretty fringe, that are now popping up in serious discussions. And we shouldn’t be too cavalier about the possibility of those becoming real in our lifetime.
Amy: Talking about expertise that exists at agencies, I think there was a kind of unintentional example, in the Gorsuch opinion that came out recently from the Supreme Court about the Good Neighbor Rule, which was a rule that actually affects Wisconsin the EPA passed that limits ozone-causing chemicals that cross state lines, and harm air quality in other states from where those chemicals originated. One of those chemical types is nitrogen oxide. And in writing the majority opinion to stop that rule recently, Justice Gorsuch called it nitrous oxide, which is a totally different chemical. It’s laughing gas that you get at the dentist’s office. So I think a lot of people are kind of pointing to that as how can judges at the Supreme Court or elsewhere make decisions about these technical matters? And this is just one example of many, many technical matters that our agencies deal with. When judges are not experts. What’s your reaction or what was your reaction, I guess, when you saw that mistake written throughout that Supreme Court opinion?
Evan: Well, my first reaction was to think of the poor EPA staff person or staff persons who were working on this rule for a very long time, as they slap their forehead as they read this decision, stain their what they thought was a good rule they had put together very carefully based on the science and all this advanced modeling and computer simulations and these very complicated things that I can’t scarcely understand. But the second thing is it is emblematic of this lack of humility. And, you know, so in this Ohio versus EPA case where the Good Neighbor Rule was stayed, there’s a couple different ways in which it lacks humility, but that is that is one of them is at the same time we’re forging ahead ahead saying it’s for the courts and the courts only to interpret these statutes even when they’re ambiguous, we’re going to make a fundamental misstatement of fact as to what it is we’re even talking about. And the reason we can make that fundamental misstatement in fact is because we don’t know anything about this. You know, Judge Gorsuch spends very little time probably thinking about which class of air contaminants can act as ozone precursors, which he should be forgiven for because he’s a judge and not a scientist. But that’s exactly the whole point.
Amy: There’s another decision that came out that hasn’t gotten as much attention, and it has to do with the statute of limitations when it comes to lawsuits brought against some of these regulations. Explain to me what happened with that.
Evan: Yeah. So this is the Corner Post decision. And you’re right, it hasn’t been getting quite as much attention. But I think pairing it with the the Loper Bright decision, which, which overruled the Chevron doctrine is appropriate. And I think it kind of magnifies and amplifies its potential reach. So in Corner Post this was a case involving these interchange fees with debit cards. So pretty far afield of environmental matters. But I think I’ll land the airplane and you’ll see why this matters. Somebody challenged the fees that were set, and they didn’t like the number that the agency came up with, but that really wasn’t what the case was about, whether or not the number was right, at least as far as what the Supreme Court decided. The Supreme Court had decided a sort of threshold question about whether this case could be brought at all or whether or not it was untimely, whether that was barred by the Statute of Limitations. So I talked earlier about that law that’s almost 100 years old now, the Administrative Procedure Act. That law points to another very, very old statute that talks about when you can bring certain kinds of claims against the government. They have to be six years, and it’s six years from the time that the claim accrues. And for a rule that an agency puts out, here it wasn’t the EPA, but this applies the same as it would to an EPA rule or an OSHA rule or any rule, unless there’s some specific statute that says otherwise, you got six years from the time it accrues. And courts had understood that to mean if EPA puts out a rule in 2024, you have until 2030 to challenge it. What this case says is, no, no, no, we’re interpreting the statute, which has been on the books for, again, decades and decades and decades, and hasn’t been applied this way, to mean if your injury is created later in time, then it’s six years from the time your injury is created, which sounds sounds all well and good until you actually kind of look at what happened in this case, which is a group of trade associations tried to challenge this rule about these debit card interchange fees, and they were going to get bounced from court because the government said it’s been more than six years. And so what did they do? They went out and they found somebody who wasn’t in business at the time and said, well, we’ve added this plaintiff. They weren’t around until, more recently. So they couldn’t have been affected within that six year window. And so now they have a fresh injury that generates a new starting of the clock. And that kind of gamesmanship about creating claims is really important because what does that mean? There could be a rule that’s been on the books for 20 years, 30 years, 40 years. All you have to do is incorporate a new shell company, claim a new injury, and you can go way back in time to get these long settled regulations under the microscope again in the courts. So you better believe that there are folks all across the country right now — there are these industry lawyers representing the polluters and all these other folks who don’t want to have to pay to comply with these standards — finding these long settled things again that we’ve taken for granted for decades and seeing if they can wiggle their way into court now under this Corner Post decision and get those things, relitigate it. So this is, again, another example of turning back the clock to a earlier time in American life when we didn’t have all these things we take for granted. And that isn’t to say that, you know, every single regulation that’s ever been promulgated has been perfect or great. These things go back and forth every time. But they’re talking about going back and look at stuff that’s pretty fundamental and that’s been longstanding and that people have relied on as part of their daily lives.
Amy: I think, it’s starting to become clear that it’s hard to overstate the seriousness of what this court has just done. When you look to the next 5 to 10 years, how do you see this playing out?
Evan: Well, it’s really hard to say. I mean, one of the things that people flagged immediately when the current composition of the Supreme Court came into being, this, the so-called sort of six three supermajority of more conservative justices, was that given their age and the fact that they’re six instead of five, this will be a court that’s able to dictate the terms of American law for a whole generation. It’ll determine a lot or will depend a lot on what happens with the presidential election and whether or not justices decide to retire. But long story short of it is, there’s no reason to think that there’s going to be an about face anytime soon. The more realistic way of looking at is that this court is setting out at the beginning, not the end, of a project to dismantle federal administrative law. And federal administrative law is something that even even law students think of it as a boring area of law, but it’s in its boringness that its power actually lies because it sounds so benign and and boring to talk about, but it touches every aspect of American life. And this has been a long project of the conservative legal movement to dismantle these laws and to roll the clock back decades and decades earlier in American life. And so there are doctrines out there, and there are things out there that people are pushing for that, again, would have been thought fringe ideas. And if you had told somebody ten years ago they were going to become law, they would have said, no way, that people now have to take seriously. And that’s really scary to think about. But there’s a couple of things that I that I can note. And then people might start hearing about more that are not new ideas. But again, the fact that they could become reality is new, which include the Nondelegation Doctrine. The Nondelegation Doctrine is this idea that Congress cannot delegate its authority under the Constitution to an executive branch agency. And this was a very brief idea that had, currency with the court, which was used to basically try to stop FDR from implementing the New Deal and trying to say that the legislature can’t say, write a law that says EPA shall do this. All Congress could do is write a law that says, this thing happens. It can’t create an agency and then delegate legislative authority to it to draft rules that cover things like how power plants pollute or how water stays clean. And a radical version of the Nondelegation Doctrine was rejected by the court after, you know, again, it was accepted for a while. And this is a very famous moment in American Constitutional history. And it’s been fundamental for again, almost 100 years now. There are people who want to go back to that time. And what this would mean is some of these agencies wouldn’t just have their authority limited around the edges, they might fundamentally cease to exist as they do today. And again, that’s it seems so wild to talk about. But we have justices who hold this view. We have judges on the state Supreme Court who are curious about this, I should add, as well, at the state level, and those folks often take their cues from the federal judges who are more on the edges of this. And so it’s just something to be aware of, you know, these ideas that are so fringe and and radical in that they, they turn the clock back to a 100 years in our history before the government couldn’t tell businesses that were hurting people to stop should really scare people and should really make people think about why those interpretations of law are becoming popular again at the time that they are, and who is behind that and why they’re doing it.
Amy: Sometimes it feels like, you know, these decisions come down. This last summer was not a great summer for Supreme Court decisions, either. Or these cases come up and, and they do seem scary and it feels like, well, where did this come from? How is this happening? And, and I think there’s a level of coordination that, I guess is surprising to a lot of folks, including me. But when we talk about coordination, I mean, this is, a rapid shift in how our entire governmental system works. So what kind of coordination on the legal front, and how much money would it take to get us to where we are now? I mean, it feels kind of like we’re in the middle of, a movie where you have these, powers acting behind the scenes for a long time, planning this out. Does that seem realistic?
Evan: Yeah. It’s hard to know how far this is going to go. At some point, things would get bad enough that it would create a reaction. I mean, that’s what’s happened at different points in our nation’s history. When one view gets, too far out ahead of public opinion, there is some ability for it to come back, because at some point, the issues get so out of whack that voters vote folks into Congress that have contrary views, and they actually change the laws, which, you know, Congress is so dysfunctional now that’s hard to imagine. But if things get bad enough, folks will elect in majorities of one party or the other in the other House that would fix this. But, you know, that’s that’s relying on the outcomes of elections. If you’re asking more about within the legal system itself. One of the weird things about the Supreme Court is it’s those it’s those nine folks, and they serve for life. And we’re in a situation where I think part of the reason this has happened is that we’ve had, one party win the popular vote in eight of the last nine elections, and yet six of the justices are from the other party. And so that’s why you see this disconnect between popular opinion and the court’s rulings on a lot of issues. And I think that the way that they could respond to that is to either moderate and say, well, let’s not get too far off public opinion, or they could say, this is our chance. This is our chance. We’ve got 30 years here, potentially to radically refashion American life and the way that we want it to be, public opinion be damned. Who’s going to stop us? And so far, you’ve seen ideas about court reform, jurisdiction stripping, packing the courts with more judges, which, by the way, the threat of packing the courts is exactly what got the court to drop the Non Delegation doctrine and that kind of nonsense before. So that isn’t a completely novel idea in our nation’s history. But those are pretty radical steps that would be responsive to the radicalness of the court. So it’s hard to know exactly what’s going to happen in that regard. One would hope that better judgment would cause them to slow down. But the folks who have been predicting that for the last couple of years have been dead wrong.
Amy:You know, when you’re kid, you hear about checks and balances and, this democracy that we have, it totally, works. And then you see something like the Supreme Court. How powerful can that court become?
Evan: Well, it’s definitely issuing decisions that are saying, “We the court should decide.” They’re, gathering power to themselves, which, you know, the framers of our Constitution knew that that could happen. They actually predicted that each branch would try to gather power to itself, because human beings are that way, and they try to create a government that was of of men, not of angels, for that very reason. That’s why we have those checks and balances. But there’s a few things that I don’t think the framers anticipated. One is this oddity of the eight out of nine popular votes for president going one way, and then so many actual appointees from the other party. That’s an anomaly that’s caused by the Electoral College, which is a whole can of worms we don’t have time to get into here, but that’s why that’s happening. We also had basically Supreme Court seats being stoln, by one party basically saying we’re just not going to vote. There’s an empty seat. We’re not going to fill it until after an election, because we want a different party to select the person who sits in that seat. Those aren’t things that I think the framers really anticipated with regard to checks and balances. And that’s why people are saying things like, the court is radical, the court is broken, it needs reform, is that we’ve reached a point where the checks and balances, as we’ve understand them, aren’t working, in part because they were embodied in these norms, these ideas that, well, people just won’t do that, which is different than “no, If somebody tries to do that, somebody can just stop them because it’s illegal. There’d be a lawsuit filed.” It’s you know, it’s the same thing with people saying that certain justices should recuse themselves from certain cases. They’re either going to decide to or not. There’s nobody that can make them. And so if the court’s not going to police itself, the other branches are going to have to do it. And if they’re not being successful, then other steps are going to have to be taken. And that’s where you get these ideas talking about court reform and and do we need to add more justices, that kind of thing. But It does make you question this idea that the Supreme Court is supposed to exist as a counter-majoritarian force in American life, which some folks that was good, that it would keep us from going one way or the other way too fast. And it seems almost like instead of being somebody who is pushing on the brake, they’ve been pushing on the gas. And that wasn’t necessarily the intent of having judges that serve for life. They’re supposed to be insulated from politics, and it sure seems like they’re really driving politics and policy preferences more than they are, neutrally applying legal principles irrespective of policy preferences.
Amy: So let’s bring this back to the environment since we are, you know, Clean Wisconsin and everything. What is next for you as an environmental attorney? When you see these decisions that came down this session how do you fight the environmental fights that are so important?
Evan: Well, as a lawyer, you have the tools that you have to work with. You know, you show up at a case, for example, you have the statutes as they’re written. You have the rules as they’re written. You have the cases that are in and you do the best you can and you know, the better lawyer you are, the more you can do with less. And and vice versa, I suppose. So we keep fighting the fight with what we’ve got, but there’s no doubt that it increasingly feels like, you know, the referee in the game isn’t necessarily calling it evenly on both sides. And that can be extremely frustrating, but it doesn’t lessen our need to fight. It just means we get to fight all the harder while also talking about these other things so people understand why certain things are happening. Because if folks don’t understand how things are getting harder, they might be forgiven for thinking that, well, I guess it’s just not that important. But the thing is this this stuff is important to people. We know people care about water quality and they care about clean air. And if that’s not showing up in the policies we’re getting. It’s our job to figure out how to make that happen no matter what. And so, you know, at Clean Wisconsin, we’re going to keep figuring out the way to do that no matter what. The good news is, you know, we really focus here on the state and what the state law provides. And we still have some pretty good environmental laws in Wisconsin. And we need to protect them and cherish them. And we need to try to use the fact that the way our environmental system is set up is to give some discretion and leeway to the states to act and try to use that as much as possible, to try to be a leader on environment and not let the fact that the feds are, making it harder to do more on the environment to be an excuse for us in Wisconsin not to do the best that we can with what we have to work with.
Amy: Clean Wisconsin Attorney Evan Feinauer, thank you so much for taking the time to explain all this. And I think we need to just as you said, talk about it as much as possible, I appreciate it.
Evan: Thank you.
Amy: For more information on legal cases impacting our environment, log on to cleanwisconsin.org. I’m Amy Barrilleaux and you’ve been listening to State of Change powered by Clean Wisconsin.
