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Two cases that have been winding their way through federal courts have arrived at the U.S. Supreme Court, and the outcome could impact the interpretation of federal laws by courts for years to come.
Forty years ago, on 29 February 1984, the U.S. Supreme Court listened to oral arguments in the case Chevron v. National Resources Defense Council, which became known as the “Chevron doctrine” or “Chevron deference.” In June of that year, the Supreme Court ruled that federal judges should defer to an agency's interpretation of federal law when the language is unclear or ambiguous, rather than allow the judges to provide their own interpretation of statutes like the Clean Air Act (CAA) or the Clean Water Act (CWA).
On 17 January 2024, the U.S. Supreme Court revisited the Chevron case. Plaintiffs in two cases challenged a rule from the National Marine Fisheries Service that requires the herring industry to pay the costs of observers on fishing boats. They appealed to the Supreme Court when both the U.S. Court of Appeals for the District of Columbia Circuit and the U.S. Court of Appeals for the 1st Circuit ruled in favor of the National Marine Fisheries Service’s interpretation of its own rule, based on the precedent set by the Chevron doctrine.
The End of the Chevron Deference?
After hearing nearly four hours of oral arguments, the Supreme Court appears poised to jettison the Chevron deference established in 1984. So, what impact could this have on legal challenges to recent and anticipated U.S. Environmental Protection Agency (EPA) regulations and enforcement cases?
“The court’s ruling could have ripple effects across the federal government, where agencies frequently use highly trained experts to interpret and implement federal laws,” wrote Amy Howe in “Supreme Court likely to discard Chevron,” in an analysis of the cases for Scotusblog.
Supporters of the Chevron deference insist that experts at federal agencies should be allowed to interpret the rules and regulations they enforce and that judges should defer to their expertise when there is a disagreement about interpretation. U.S. Solicitor General Elizabeth B. Prelogar argued that overturning Chevron v. National Resources Defense Council could result in challenges to previous cases in which judges deferred to federal agencies for an interpretation of the law.
Critics of the Chevron decision, including Justice Brett M. Kavanaugh, point out that every four or eight years, the administration changes and the resulting shakeup potentially can result in multiple, warring interpretations of federal statutes over a period of just a few years. They also argue that judges, not federal agencies, should make, if necessary, the final determination on whether a statute has been violated.
A Legal Expert Weighs In
We asked Michael R. Blumenthal, of counsel for law firm McGlinchey Stafford, what the Supreme Court overturning Chevron v. National Resources Defense Council could mean to companies facing new government regulations related to per-and polyfluoroalkyl substances (PFAS) such as perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS).
Blumenthal, a former Ohio Assistant Attorney General in its Environmental Enforcement Section, was responsible for enforcing state and federal regulations related to the Resource Conservation and Recovery Act (RCRA), CWA, and CAA. Now, he represents clients in environmental due diligence in real estate transactions, mergers and acquisitions, permitting, multimedia auditing, and environmental compliance with the RCRA, CAA, CWA, the Toxic Substances Control Act (TSCA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA/Superfund).
The Chevron case was about whether deference should be given to federal agencies in interpreting their own rules, he noted, adding: “What we have seen, since that case has been issued, is this incredible overreaching by federal agencies. And I think [the Supreme Court is] going to roll back a federal agency’s authority in interpreting their rules.”
When asked what impact the overturning of the Chevron case could have on Superfund/CERCLA, particularly given the proposal to designate PFOA and PFOS – two widely used PFAS – as hazardous substances under CERCLA, Blumenthal replied: “For closed Superfund sites, EPA will have an uphill battle in reopening those sites. EPA will have to demonstrate that whatever remedy was utilized in closing the Superfund site is now inadequate in protecting human health and the environment given the designation of PFAS and PFOS as hazardous substances. Deference that was once so freely given by the courts to federal agencies in interpreting their rules is expected to be significantly rolled back, thereby resulting in a more ‘level playing field’ for private party litigants in challenging EPA’s authority. Thus, the stage is set for potentially responsible parties (PRPs) to put forth a compelling argument that the reopening of previously closed Superfund sites is overreach by the federal agency,” he said.
Along similar lines, Blumenthal contended that the cleanup standards in of themselves are in the parts per quadrillion. "How in the world can PRPs be expected to meet that kind of threshold when the technology for measuring those thresholds are susceptible to error?" he questioned.
Blumenthal said his sources tell him that the EPA will stick to the date listed in its Spring 2023 Unified Agenda and publish a final rule in March 2024 regarding the PFAS CERCLA designation for PFOA and PFOS.
We will provide an update as more information becomes available.
About the author: Sandy Smith, Senior Reporter, 3E, is an award-winning newspaper reporter and business-to-business journalist who has spent 20+ years researching and writing about EHS, regulatory compliance, and risk management and networking with EHS professionals. She is passionate about helping to build and maintain safe workplaces and promote workplace cultures that support EHS. She has presented at major conferences and has been interviewed about workplace safety and risk by The Wall Street Journal, CNN, and USA Today.
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