They win we lose
Four days after the Supreme Court ruled in the case of Loper Bright Enterprises vs. Raimondo, overturning the 40-year-old precedent known as the Chevron deference, the justices announced they would be sending nine cases back to lower courts in light of their ruling.
This batch of cases may be the first indication of the legal upheaval that could play out across the United States judiciary now that one of the most widely cited Supreme Court opinions has been reversed.
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By reversing its 1984 ruling in the case of Chevron v. Natural Resources Defense Council — which let judges defer to federal agencies’ interpretation of statutes when language was unclear — the court slashed the authority of regulators and empowered the judiciary.
Slashing the authority of regulators of course is the dream of corporations and their fan base. Fuck worker safety and consumer safety and planetary safety, fuck everything except profit.
In two of the cases remanded to lower courts in light of the Loper decision, the plaintiffs share the same lawyer: the Pacific Legal Foundation, or PLF.
According to its website, the PLF — which called for an end to the Chevron deference in an amicus brief it filed in the Loper case — represents at least five different plaintiffs whose cases stand to benefit from Chevron’s reversal.
The public interest law firm is one of several conservative, anti-regulation groups that have been preparing for the Supreme Court’s reversal of Chevron, according to Accountable.US, a nonpartisan research organization focused on special interests.
A new report from the group identifies four organizations, including the PLF, planning legal challenges and lobbying efforts now that the precedent has been overturned. The others are the Balancing Act Project, which says on its website that it will work to define “a new regulatory environment” in the post-Chevron world; the Competitive Enterprise Institute, an anti-regulation nonprofit challenging the Environmental Protection Agency’s authority; and Americans for Prosperity, the Charles Koch-backed network whose lawyers represented the plaintiffs in Loper.
Yes let’s just do away with all regulation and have nothing but Competitive Enterprise and Prosperity for the people at the very top.
I’ve seen one commentator assert that in the wake of the Chevron ruling, environmental groups should file lawsuits challenging every EPA reg on the grounds that it doesn’t go far enough to restrict pollution.
Absolutely flood the zone.
I’d be curious to know which commentator, because that seems like a very bad idea both legally and tactically.
It was https://bsky.app/profile/isomorphism.net/post/3kvysjd47fs2v
I don’t know who this is, or whether he has any authority or expertise on the matter.
He’s proposing it as a DoS attack on the courts, which seems…unhelpful. I was more taken with the idea that legal challenges to regulation *can* go both ways. Polluters will be filing cases to roll back regulation; environmentalists are now equally empowered to sue for stricter regulation.
Bio says this person is an IT professional, so yeah, I’m going to say no expertise in law or environmental matters or political strategy.
A short list of reasons why I think this is silly:
1) It’s usually much harder to sue the government for things it has failed to do than things it has done. This is especially true when you’re trying to sue because the government didn’t do stuff to that guy/corporation over there.
2) Related to point (1), there are likely some major standing problems. An industry that is aggrieved by a regulation it contends is too restrictive has an obvious injury it can point to — we’re losing money because of this regulation. Environmental groups have to rely on more indirect theories — our members are people, and people will suffer from climate change if this isn’t done — and SCOTUS has been trimming back that kind of standing for years now.
3) You won’t “DDOS” the courts. You’ll add a few cases to the dockets of the district court judges in the 9th Circuit where you propose to file these things. If you actually manage to file enough of them to annoy the judges, they’ll just start issuing boilerplate Orders to Show Cause why your case shouldn’t be dismissed, and they’ll quickly get disposed of. Keep filing them, and you’ll eventually exhaust their patience and get yourself sanctioned.
4) Even if you could overburden the district courts, SCOTUS ain’t gonna care, and neither will a Trump administration.
Basically, this is an Underpants Gnome strategy:
Step 1: File lots of borderline frivolous lawsuits
Step 2: ?????
Step 3: Victory!
Now, to extract a serious point out of all this: sure, in principle Chevron isn’t inherently conservative or liberal. The case actually originated out of a challenge to the Reagan Administration’s EPA, run by now-Justice Gorsuch’s mother.
The problems are:
1) It’s an asymmetric battle. Industry groups have the resources and incentives to fight every fight. Environmental and consumer groups tend to be much more limited and have to pick their battles.
2) Conservatives rule the courts. Oh, you got some district court judge in California to order Trump’s EPA to do something? And the Ninth Circuit denied the government’s emergency appeal? How nice for you, bravo, bet you spent a lot of time and money on that. Well, Scotus just issued a stay in a one-sentence order on the shadow docket, so there goes that.
Depressing and informative.
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