Today’s Key Takeaway(From Axios):
EPA Administrator Michael Regan believes his agency will be hit “extremely hard” by the Supreme Court’s decision to overturn Chevron deference.
Why it matters: Regan’s view from the top underscores just how damaging the decision in Loper Bright v. Raimondo could be for the Biden administration’s marquee air and water regulations.
Driving the news: Regan told the House Oversight and Accountability Committee on Wednesday that the decision would undermine the ability of agency experts to interpret the law.
R Street on Chevron – A View of the Policy and Legal landscape:
The Orange County Register: Bureaucrats no longer judge, jury and executioner. Despite many overwrought hot takes claiming that Loper Bright will obliterate federal regulations, give corporations power to self-regulate, and even usher in fascism, the reality is something quite different, even if many businesses use it to file lawsuits against similarly absurd agency creations. As Chief Justice John Roberts wrote for the majority: “The very point of the traditional tools of statutory construction… is to resolve statutory ambiguities. That is no less true when the ambiguity is about the scope of an agency’s own power – perhaps the occasion on which abdication in favor of the agency is least important.”
Real Solutions: Low-Energy Fridays: Chevron is Dead! Long Live… What, Exactly? While Chevron ruled for nearly half a century, courts were never entirely comfortable with it. For one thing, judges are supposed to be interpreting the law, not deferring to a bunch of executive branch bureaucrats who are kind of making it up as they go along. Chevron deference also meant that there could be big changes in energy policy between presidential administrations without any change to federal law. Over time, courts began to create more exceptions to Chevron, such as the “major questions” doctrine (Chevron doesn’t apply if the issue involved is, like, really important). And now with the Court’s decision in Loper Bright, the doctrine has been abandoned altogether.
Analysis: Ending Chevron Can’t Solve Congress’s Problems.Many people expect the Supreme Court’s decision to shift the locus of policymaking back to the people’s elected representatives in Congress. However, the Court cannot restore balance to the separation of powers system by itself. This is because Congress is the problem, not Chevron deference. Instead of forcing Congress to take a more active role in legislating, the Court’s decision to end Chevron merely shifts the locus of policymaking from regulatory agencies to federal courts—and only in specific instances, when judges disagree with the executive branch officials’ statutory interpretation.
Analysis: Chevron is out of gas. Will it fuel changes to the FCC?The Federal Communications Commission (FCC) enacted the Safeguarding and Securing the Open Internet Order earlier this year, once again classifying broadband service as a communications service under Title II of the Communications Act. Challenged immediately, this heavy-handed regulatory grab is currently under review in the Sixth Circuit Court of Appeals. Given the Supreme Court’s ruling in Loper Bright Enterprises v. Raimondo overturning Chevron, the FCC’s arguments may be undercut, potentially bringing long-overdue certainty to the net neutrality issue. In 2016, the D.C. Circuit Court relied on Chevron to uphold the FCC’s Title II order and the subsequent “Restoring Internet Freedom Order.” However, the Court’s recent holding could signify a paradigm shift for agency rulemaking.
Analysis: Herring Loss. Among its many implications, the overturning of Chevron may also tip the scales in a long-running battle between a small unit within the Treasury Department, the Federal Insurance Office (FIO), and the insurance industry. The FIO was established in 2010 as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The FIO was established with a false premise. In the wake of the panicked days of the financial crisis of 2007-2008, Dodd-Frank sought to lay down legislation that could prevent the reoccurrence of a financial crisis. The FIO was created to monitor the insurance industry should it endanger the financial system. The financial crisis was, however, not caused by insurers. It was the bursting of a bubble created by subprime lending by banks and non-bank financial institutions. Insurers were neither the cause of the crisis, nor were they cratered by the crisis. The insurance industry was falsely accused.