CHEVRON'S WAKE — The cheers on the right and jeers on the left had barely died down in the wake of the U.S. Supreme Court’s scrapping of the Chevron deference before legal eagles on both sides of the issue began noting that the landmark ruling was one that could cut both ways. The high court’s reversal of the decades-old doctrine that saw judges defer to federal agencies’ expertise in interpreting ambiguous regulations does represent a long-sought victory for conservatives who will now be better positioned to upend rules they dislike, such as the climate and energy measures imposed under President Joe Biden. But legal experts who spoke with Pamela King of POLITICO’s E&E News and our Alex Guillén said that the deference’s demise could also hinder former President Donald Trump’s ability to erase the Biden administration’s imprint if he returns to the White House. “Regardless of who is president, this decision likely will lead to more litigation challenging administrative actions and will likely lead to more losses by federal agencies,” said Dan Jarcho, a partner at the law firm Alston & Bird who is a former Department of Justice trial attorney. That view is shared by Andrew Wheeler, who served as EPA administrator under Trump and has expressed interest in returning to the post. “Activist judges at both ends of the spectrum are going to have a little bit more leeway,” said Wheeler, now an attorney at Holland & Hart. “It's possible that a Republican regulation could be overturned or a Democratic regulation could be overturned." The Chevron doctrine required courts to defer to federal agencies in cases where they were viewed as having reasonably interpreted ambiguous statutes like some provisions of the Clean Air Act. And while environmentalists acknowledge that the ruling could help them fight regulations they oppose, Natural Resources Defense Council attorney David Doniger said stopping deregulation isn’t the same thing as acting. “If you have new problems like climate change, new problems like the next pandemic, and a hypothetical second Trump administration mishandles them, doesn't want to do anything about them — it's pretty darn hard to get the courts to force that action,” said Doniger, who argued the original Chevron case in 1984. The new ruling puts more pressure on Congress to pass laws that are more specific or clearer in delegating decision-making authority. And while the impact theoretically cuts both ways, College of William and Mary law professor Aaron-Andrew Bruhl said it will put Democrats at a disadvantage. "If part of your agenda is just for agencies to enforce less or to reduce their budgets or the like, then you can accomplish that even without any deference from the courts,” Bruhl said. “Where[as] the Democratic Party tends to want more active regulatory agencies, and for that you do tend to need deference more, so that courts will go along with what the agencies are trying to accomplish." That split was reflected on Capitol Hill, where Republicans welcomed the ruling while Democrats were more circumspect. "This decision rightfully hands the power back to Americans’ elected representatives in Congress to write our nation’s laws and to the courts to interpret them," House Oversight Chair James Comer (R-Ky.) said in a statement. On the other side, Sen. Ben Cardin (D-Md.) noted that Congress has long relied on agency expertise on policy matters. "Technical experts at agencies, not judges, are best able to make these decisions in the first instance when Congress passes a law that requires subject matter knowledge to correctly implement and carry out legislative intent," Cardin said in a statement. While calling on Congress to legislate more frequently and precisely might seem like a reasonable idea, Bruhl said there are numerous obstacles standing in the way, including a packed legislative agenda, limited staff expertise and partisan divides that make it difficult to find consensus even on issues where there is general agreement. "The people who say, ‘Congress should do its job, and now it can or now it'll have to’ — I think it's more complicated than that," Bruhl said.
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