Guest Opinion | Kim Steinhardt | 25 October 2024
A recent, controversial Supreme Court decision sets off alarm bells for anyone interested in the emerging policies, programs, and plans intended to address the pressing problems of climate change and sea level rise, as well as other governmental action across a wide swath of American life.
In the case of Loper Bright Enterprises v. Raimondo, the new conservative supermajority of the Supreme Court overturned a 40-year-old precedent and challenged the fundamental system of checks and balances between the three branches of government established by the U.S. Constitution.
What happened in this case, and why will it have such an impact?
The case might seem quite technical, an “inside baseball” kind of regulatory controversy without obvious widespread relevance – at first glance. By a six to three majority, the court invalidated a regulation adopted by the National Marine Fisheries Service that had assigned certain costs to be borne by the fishing industry for a Congressionally created fisheries monitoring program.
Whether or not one agrees or disagrees with the specifics of the cost framework for the monitoring program, the greatest significance of the decision lies not in the merits of the actual controversy between the parties. Rather, what is notable – and what will affect federal decisions and policymaking for generations to come – is the justices’ precedent-setting decision to substitute their own opinions for the administrative agency regulations even though these regulations had been designed by experts in the field and adopted after a public notice and comment period (required by law for all such regulations).
In the Loper Bright case, the court explicitly reversed a precedent that forty years ago established a crucial principle, followed in thousands of federal cases over the decades since: when reviewing regulations, rules, and policies, unless an agency action is arbitrary or capricious, judges were required to defer to the expertise of the administrative agencies and rulemaking bodies. (Chevron v Natural Resources Defense Council, 1984).
In other words, up until now, federal judges could not simply decide they don’t like a regulation or rule because they think they have a better idea or a different approach – or they have an ideological agenda and prefer a specific outcome. In the framework up until the Loper Bright case, judges were not thought of as subject matter experts in every imaginable area of policymaking, allowed to substitute their own opinions for that of experts.
The principle underlying this deference standard is simple. The judiciary is not intended to be the end-all be-all administrative policymaking body; rather, such policy is supposed to be created by the democratically elected executive and legislative branches which are directly accountable to the public. The non-democratically established federal judiciary’s role – when scrutinizing agency actions – is limited to curbing abuses of power in those few instances where an action is arbitrary or capricious.
This framework makes good on the system of checks and balances and separation of powers established by the Constitution. Each branch has its lane. As Justice Elena Kagan pointed out in her dissenting opinion in the Loper Bright case, “A four decades-old rule of judicial humility gives way to a rule of judicial hubris . . . In one fell swoop, the majority today gives itself exclusive power over every open issue – no matter how expertise-driven or policy-laden.”
The impact of this dramatically expanded view of how federal judges will now review challenged agency actions is as widespread as the range of rules and actions the court now has given itself permission to decide and the broad spectrum of personally held policy inclinations of the judges who will be reviewing these matters.
Agencies promulgate rules and regulations in all aspects of our lives: environmental, civil rights, health, welfare, commerce, elections, individual and national security, transportation, intellectual property, and many more. The success of environmental policies has been heavily dependent on these administrative actions (and sometimes challenges to such actions).
It is worth noting that the court’s creation of the whatever-the-judge-decides-is-best standard of review does not reflect some widely held consensus within the legal community. Far from it: It is the result of a small but vocal minority of extreme advocates who have tried for decades to achieve specific ideological goals by enhancing the judiciary’s policymaking role by shifting power and diminishing the role of the democratically elected legislative and executive branches.
Elections Matter – make sure that your voice is heard . . .
The success of these extremists in achieving by judicial fiat policies they could not achieve at the ballot box tells an important story of the urgency of exercising our right to vote. It is only through this democratic process of selecting leaders and voting on issues that we can effectively express our preferences for the priorities and policies we want.
Whether in the legislative branch or the executive branch these leaders, in turn, create legislation or appoint the heads of regulatory agencies, departments, and commissions charged with developing, implementing or enforcing policy goals to thoughtfully tackle the multitude of pressing problems we face, such as those of climate change and sea level rise. Key to this framework is the accountability that comes with citizens exercising our well-informed right to vote.
To the extent there is insufficient citizen participation and democratic input, there will always be those who will look to distort the Constitutional roles assigned to our branches of government to try to shape policies to their own designs regardless of the degree of public support or accountability. The recent Supreme Court decision is a stark reminder of the urgency of informed citizen participation at all levels of governing to assure that the policies we have are based on true expertise and designed to improve the quality of life for all.
Kim Steinhardt is a former administrative law judge turned environmental writer and marine wildlife photographer. His focus on sea otters has been recognized by National Geographic’s Explore My World Series and elsewhere. His most recent book is a true story for children: Sabby the Sea Otter – A Pup’s True Adventure and Triumph, and he is co-author of The Edge: The Pressured Past and Precarious Future of California’s Coast. He teaches law classes emphasizing public interest policymaking, legislation, and ocean advocacy.
