Donald Trump’s Supreme Court nominee, Neil Gorsuch, attracted some attention last week for his opposition to a Supreme Court precedent that undergirds many of the regulations put forth by federal agencies, such as the Environmental Protection Agency and the Federal Communications Commission.
Congress has also taken up the cause, pushing new legislation that would undo this precedent. And if Gorsuch would like to pare back agencies’ power using a scalpel, Congress intends to go about the job using a sledgehammer, environmental advocates say.
At issue is Chevron deference, also called the Chevron doctrine. Stemming from a 1984 Supreme Court case, Chevron deference is the concept that if Congress makes a vague law, a regulatory agency can fill in the blanks — within reason. A lot of the EPA’s work during the Obama era involved filling in blanks in the Clean Air Act, which gives the agency the authority to regulate pollutants but doesn’t always indicate which pollutants can be regulated or how that regulation should work. The legislation to repeal Chevron grows out of Republican ire with those Obama regulations, which were aimed at addressing climate change.
Judge Gorsuch has said he feels Chevron gives agencies too much wiggle room, and Republicans in Congress want to entirely get rid of the Chevron doctrine, the legal precedent that allows that wiggle room. The push is part of a larger package of laws that passed the House earlier this month called the Regulatory Accountability Act of 2017. The bill will now have to pass the Senate before heading to President Trump’s desk.
“It would be a pretty radical change in administrative law,” says Sean Donahue, an attorney who represents the Environmental Defense Fund and has successfully argued on behalf of environmental advocates before the Supreme Court. “It’s obvious that it’s not sort of a housekeeping, neutral, wonkish improvement. It’s an ideological attack on regulation and on the use of government to try to…