Debbie Sivas: We’re going to see some cases coming up in the future here where the question is, you know, what’s the best available technology that can be used under the Clean Air Act? And, you know, that’s a term in the statute, but there’s a long history of the agency actually thinking about what that term means, but if you just look at it from a strictly like we interpret words on a page, it’s not clear to me that any of our current judges who don’t hold advanced degrees in engineering or anything would know the answer to that, but I guess they’re going to opine on it now.

Pam Karlan: And I have a doctorate in jurists.

This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan with Rich Ford. Please subscribe or follow this feed on your favorite podcast app. That way, you’ll have access to all our new episodes as soon as they’re released. Today, we’re talking to our colleague Debbie Sivas, who is the director of the Environmental Law Clinic here at the law school.

She’s also a faculty member at the Doerr School of Sustainability. She’s an expert on environmental law more generally, and she holds the Luke Cole chair as a clinical faculty member, so, Debbie, thanks so much for joining us today. 

Debbie Sivas: Yeah, thanks for having me on. 

Pam Karlan: So, this was a momentous term at the Supreme Court when it comes to environmental and administrative law issues.

Could you tell us a little bit about what struck you most? 

Debbie Sivas: Yeah, so there were a host of big cases decided this term kind of following on a couple of big cases from the last few terms, and, of course, the big one that got a lot of play was the Loper Bright decision, which basically put a final nail in the coffin for what’s called Chevron deference, so that kind of led a trilogy of cases that are really geared towards trying to shrink down the influence of administrative agencies. 

Rich Ford: So, maybe you could tell us a little more, Debbie, about the landscape before this recent case. What exactly is Chevron deference, and why is it important? 

Debbie Sivas: Yeah, happy to do that, so Chevron deference, Chevron was a 1984 case. Ironically, a case that the Reagan administration pushed forward and deferred to some of the deregulation that was going on at that time, so we’ve now kind of had a kind of shift where the conservatives, part of the legal scholars, really turned against Chevron, but, so what that case said was basically that there’s a congressional statute that has gaps in it or ambiguities and the agency that’s implementing that law is trying to do so consistent with what Congress directed. That agency can fill those gaps with its interpretation of what it thinks Congress intended there, and generally, there was kind of a default rule created by Chevron that says generally, the courts should defer to that agency deference because those are the folks who are really in the minutia and interpreting and applying the law, you know, barring it being an outrageous kind of interpretation, so it was a default, not one that couldn’t be overcome, but in the last decade, I’d say, there’s been growing hostility towards that notion, in part because I think the more conservative legal movement doesn’t want to see the administrative agencies have so much power, and so there’s been a real move away from Chevron, such that I think the Chief Justice cited in the new case, the Loper Bright case, which basically said Chevron is dead.

Chevron deference is dead. The Chief Justice basically said, we haven’t cited it for, you know, eight years or so, and that’s been true in my experience in litigating as well. That the government agencies trying to defend rules that they’re doing have seen the writing on the wall, that there’s been this long attempt to really water down Chevron, and so the government’s not really using it as much as it used to, but, you know, now we’ve officially done away with it, so there’s no deference to the agencies, which leaves it kind of to the independent judgment of, you know, whatever we have: 600 and some judges in the judiciary. 

Pam Karlan: I mean, one of the things that struck me as so deeply ironic about this is, you know, at the same time that the Supreme Court is getting rid of deference to administrative agencies and their expertise, they make sloppy mistakes on, you know, basic issues of science and the one that was most striking was, you know, and this is a case we’re going to talk about a little bit as well, the Ohio against EPA case, the court’s opinion when it originally comes out, keeps talking about the problems of nitrous oxide, nitrous oxide, nitrous oxide, which of course is the laughing gas they give you at the dentist, I think when they want to put you under, and the problem was actually with something called nitrogen oxide, and nitrogen oxide and nitrous oxide are not the same things at all, and the Supreme Court had to kind of file a correction on its opinion. It was sort of like Emily Littella. Oh, what’s all this about Soviet jewelry? Never mind, and it does make you kind of wonder that they say in the Loper Bright opinion, well, we’re experts at interpreting statutes. Agencies are not experts at interpreting statutes, and so what do you make of this kind of contempt for expertise? 

Debbie Sivas: Yeah. Well, it’s definitely there in a number of the judges on the Court and, you know, some of the lower court judges as well, but, and, you know, what strikes me is that it’s very hard to disentangle what the meaning of a legal term is or a phrase in a statute from how the agency is applying it to a set of facts, right? 

Like so, you know, we’re going to see some cases coming up in the future here, where the question is, you know, what’s the best available technology that can be used under the Clean Air Act? And, you know, that’s a term in the statute, but there’s a long history of the agency actually thinking about what that term means, but if you just look at it from a strictly like we interpret words on a page, it’s not clear to me that any of our current judges who don’t hold, you know, advanced degrees in engineering or anything would know the answer to that, but I guess they’re going to opine on it now. 

Pam Karlan: And I have a doctorate in jurists. I mean, it is kind of worrisome.

Debbie Sivas: But it also struck me that one of the things the Chief Justice said was, we’ll just use the tools, the sort of traditional tools of statutory construction, and I think those are highly controversial these days. Like what, do they look at legislative history? Haven’t so much done so in the environmental context, right? So, I don’t think it’s as gut and dried as he’s suggesting. 

Rich Ford: It seems very strange that you would say we’ll use the typical tools of statutory construction without looking at the context in which deference to administrative agencies and expertise has been the practice for decades, so one would imagine, or at least a strong argument could be made that that is what Congress intended or Congress very easily could have done something else if they didn’t want this kind of deference to expertise that has been in practice for decades.

Debbie Sivas: Yeah, and it really undermines the whole notion of the administrative state, you know, since the New Deal is that we, Congress, are also not the experts, and if we want to actually tackle modern problems, right, we have to have the experts in the agencies who have a much, you know, a much greater ability to think these problems through, so it’s, yeah, it’s very concerning. I know there’s been a lot of commentary. I think we’ll have to see where it goes. My sense is that there’ll still be a lot of lower courts that’ll say, we find the agency’s position persuasive, you know, even if we don’t have to default to deferring to it, but, you know, especially for the more controversial rules. Those will probably work their way back up to the Supreme Court. 

Pam Karlan: Yeah, I think you’re referring to sort of Skidmore deference there, right? Which is another Supreme Court case. That one from, I think, the 1940s. 

Debbie Sivas: That’s right. 

Pam Karlan: That says, you know, to the extent that agencies are getting stuff right, you know, we owe them some respect.

Debbie Sivas: Yes. 

Pam Karlan: Yeah. 

Debbie Sivas: Yeah, but that’s not; it’s cold comfort if, you know, you’ve got a judge, and, increasingly, you have a lot of forum shopping. I would say it goes on on all sides, but, you know, pick a pretty conservative judge in Texas or Louisiana or something, and then there’s not going to be any deference there to judges who just don’t have very little respect for agency rulemaking.

Rich Ford: So, just to put it in context, there’s been kind of a long-standing hostility to the administrative state among a certain faction of conservative jurists, and even if this, the demise of Chevron itself, may not be all that momentous, because, you know, as you pointed out, the courts hadn’t been citing it and agencies hadn’t been relying on it for quite some time, this is the culmination, in one sense, of this long standing attack on deference to the administrative state that we would expect to see continue in other areas. 

Debbie Sivas: I think that’s right, and I think the cluster of cases this term and for the last couple of terms, it’s really almost a signaling function from the Supreme Court to say, yes, we invite you to challenge things, right?

Challenge agency rulemakings, right and left, and even one of the other big cases, this term, the Corner Post case, which came out on the same day as the immunity decision, so it didn’t get as much press as it might have otherwise, right? But that one has to do with when the statute of limitations runs on these administrative rule-makings, and it’s often inviting folks to come back at rules that have been in place, you know, in some cases for decades. 

Pam Karlan: Yeah, I mean, I think it’s worth saying a little bit about Corner Post because everybody was so focused on Chevron and Loper Bright that I think they may have missed just how big an issue Corner Post is.

What Corner Post, the case itself is about a regulation involving swipe cards for, swipe fees for debit cards, and the regulation was from 2011. It was challenged, the challengers lost, and then in 2000, and the six years obviously runs in 2017, and then in 2019 or 2020, they incorporate, a new gas station opens somewhere in the Badlands, I think, and they want to challenge this regulation and the Supreme Court, and the lower court said, look, the six years from when the regulation was adopted has passed, and the Supreme Court says, oh no, the six years starts to run from when the regulation first affects you, and what that means, I think, and you sort of alluded to this earlier, Debbie, is you just incorporate somebody in Amarillo, and then you can go and bring your lawsuit in front of Judge Kacsmaryk to challenge the regulation, even though the regulation has been on the books, and even if it’s been upheld by several courts of appeals, because the only thing that bars you is if the Court of Appeals where you filed the suit has already decided the case, and then if you add on Loper Bright, if the old decisions had any Chevron deference in them to what the agency did, then you get to revisit the whole thing now. 

Debbie Sivas: Yeah, absolutely, and one of the things that struck me when I read the Loper Bright decision, which came out, I think it was the Friday, right, before Corner Post, which came out on Monday, was the Chief Justice saying, you know, oh, this case, going forward no Chevron deference, but it’s not going to unsettle things that are, you know, rules that are already decided, and then, you know, the next Monday, they decided Corner Post and created the situation where you absolutely could undo lots of rules, right? And one of the things that strikes me is that, you know, in the environmental field as in many other fields, right, businesses adjust, right? That’s what business does. They adjust to the rulemaking, and now, if you say, well, there’s a rule from 1999, but you can, you know, incorporate some entity and start all over and challenge it, that really doesn’t seem the best thing for the business community, which is kind of the, you know, the side of the ledger that’s been pushing to, you know, deregulate things. 

Pam Karlan: Yeah, I mean, it’s interesting. In Corner Post, there were businesses on both sides. 

Rich Ford: It’s one of the themes that we’ve been seeing in this latest Supreme Court term is the way that decisions that you might initially think, well, there’s a left divide and the conservatives are pro-business, or there, it doesn’t entirely explain some of these decisions, so here, it’s not obvious that businesses are going to be better off with regulatory churn, where everything is constantly up for re-evaluation, but it does seem to comport to some quite specific ideological vision of the government, and in particular, hostility to administrative agencies generally.

Debbie Sivas: Yeah, I totally agree with that, Rich. I think that’s the general direction if you put all these individual cases together, and, of course, a couple of terms ago, we had the West Virginia case, which adopted the major questions doctrine. I kind of line that up against Loper Bright because we’re done with Chevron deference, and the courts should exercise their independent judgment and how to interpret these statutes, and then at the same time, anything that has, you know, potentially significant impacts on the economy, we’re going to say, no, Congress has to be much clearer, right, and, you know, the Justices realized that we’re never going to get that clarity, certainly out of the current Congress or any foreseeable one, but even historically, because again, I mean, you know, Congress people are not, they’re not, you know, environmental experts or air experts or water experts, so you can’t really get those definitive statements that the current Court is requiring to uphold some of these major rules. 

Pam Karlan: And I guess there’s this kind of, there’s this third shoe to drop, which is, you’ve talked about the kind of Loper Bright shoe, you know. You’ve talked about the major questions doctrine shoe, but then there’s the non-delegation doctrine as well, which hasn’t come back yet, but you can kind of see them saying, well, we’re not going to defer to the agency.

We’ll decide this for ourselves, and we’re going to hold that if Congress hasn’t been really clear in delegating this to the agency, the agency doesn’t have the power, but if Congress gives too broad a delegation and just says to like the EPA, make sure we have clean water, or make sure we have clean air, then they’ve delegated too much, and so it’s like this kind of weird Goldilocks routine in which the Court is really, and this goes back to Rich’s point, what the Court’s really doing here is deregulating. It’s not that it’s deciding pro-business versus anti-business, it’s deregulating, which obviously helps some businesses but hurts other businesses. It’s not, you know, deregulation is not necessarily good for every business. 

Debbie Sivas: Yeah. No, I think that’s absolutely right, and I’ll just say on the non-delegation doctrine, I think it’s coming back. You know, maybe they just haven’t gotten there yet, but, so Pam, you’re the expert on the Supreme Court, but I think it’ll work its way back up, but on your, on the broader point, right, that’s right, and I think one of the, you know, as we think about climate, so right, we’re in a transition right now, and there’s going to be winners and losers in that transition, and to really help that go forward, you need some government parameters that help stabilize and create a market, right?

And so that’s very true in the climate cases, and we’re going to see more of them come to the Supreme Court, and it’s the, you know, each one of them is led by a red state, Texas or Ohio or West Virginia, right? And, but there are many businesses who are on the other side of those cases, right? So it’s a, as you said, Rich, like a, there’s an ideological angle to this that’s, you know, that some of these states want to do, but it’s not clear to me at all that, like, when you do the balance of economic activity, that it’s actually helpful to the vet.

Pam Karlan: Yeah, aren’t there more people employed in clean energy right now than in coal mining in the United States? 

Debbie Sivas: Yes, that’s definitely correct. 

Pam Karlan: Yeah, I mean so, all of this, let’s protect dirty air. Not clear that that’s protecting businesses. Or the economy in gross. 

Debbie Sivas: Yeah. And going back to our earlier point, right?

Like, if we can’t get some regulations in place that kind of put parameters around what it’s going to look like in terms of those business going forward, these nascent businesses that are, you know, popping up every day to deal with climate challenges, they won’t be able to survive because you have to have a, more of a stable market.

Pam Karlan: We have been talking about several of the cases at the Supreme Court this year, but there was one that we hadn’t really gotten to yet, and that’s the Ohio against EPA case. Can you tell us a little bit about that case and what happened there? 

Debbie Sivas: Sure, and that’s a case that hasn’t also gotten a lot of play, in part because the Court has not yet ruled on the merits, but just to back up about what that case is about, it’s a Clean Air Act case, so it goes up to the, it was, the challenge was at the DC Circuit, and it has to do with ozone pollution and it continues to be a problem to this day, and so EPA continues to try to deal with it, and the Clean Air Act directs the agency to protect public health from pollutants like ozone, and so in order to advance the ball on that, the agency promulgated a new rule that had to do with something called the “good neighbor” provision. That’s the colloquial term in the Clean Air Act, so you can imagine if you’re a state that’s downwind of a very polluting state, and you, as a state, are supposed to, you know, clean up your air quality, but it’s hard to do if a neighboring state and if the air pollutants are blowing into your state, so there’s “good neighbor” provision of the Clean Air Act. It’s a kind of a collective action thing and requires some of the states where the pollution can move out of the state into another state to actually adhere to certain rules, and that was what was at issue in that rulemaking, and basically what EPA said is, okay, every state has to amend its what’s called its State Implementation Plans to try to address that ozone problem, and then when states didn’t do it, EPA came back and said, okay, well we’re going to do a federal plan, which the Clean Air Act allows. We’re going to do an overriding federal plan, and then a number of states who had done nothing, you know, they had made comments, we don’t have to do anything, and then they challenged the rule in the D.C. Circuit and they sought a stay of the rule before the case was even heard on the merits, and the D.C. Circuit, I believe, turned that down, and then they petitioned that on up to the Supreme Court, so I think this is one of kind of the shadow docket case that people talk about, right? And so the Supreme Court took it up on an emergency appeal, and basically said, we’re going to stay this rulemaking and, you know, it can take years to work its way through the D.C. Circuit, so we’re going to stay all of this which is the first issue with the case is like the Court did not hear the merits that they put a stay, so if you think about going forward, is that the new course of action with the Court just doing these emergency stays before they’d really even heard the merits of the case? So that was one issue, and to me, the other big issue was that the basis for the stay was, you know, so there’s a test.

Is it, are you likely to prevail on the merits when the Court finally gets to the merits, and what are the balance of equities? And the Court focused entirely on the merits and really telegraphed that you’re going to lose the merits, and the basis for losing the merits is EPA. You did not adequately respond to a comment or a set of comments by some states that were unhappy, and so that’s the second thing, I said, I think we’re telegraphing where that case is going to end up. It’s now back at the D.C. Circuit, but, you know, the fact that the Court was willing to take it up on this emergency and issue the stay, and then saying, you know, we’re going to, we’re likely going to throw out the rule because you didn’t adequately respond to someone’s comments. That’s a, you know, really far-reaching, potentially troubling decision. 

Pam Karlan: And how many comments do these rules, like tens of thousands, right? 

Debbie Sivas: Yeah. I don’t know this one, this particular one, but like the Clean Power Plan, which is another case that’s going to be affected by all of this, I think, over the years it’s gotten several million comments, right? 

Pam Karlan: Yeah, so if a Court can look out there, find some comment and then say, we don’t think the agency responded enough to this comment, so we’re going to toss out the rule. It’s basically open season on the rules, right? 

Debbie Sivas: Absolutely. I think that’s right.

Pam Karlan: And what effect is this going to have on agencies? I mean, you know, some people, I think say, well, this is just going to mean the process is going to become much slower because they’re going to just respond to every comment, but there’s another group of people who say well no, that’s not what’s going to happen.

What’s going to happen is agencies are just going to say, it’s not worth doing the rule at all, or they’re going to decide, let’s just do the rule and see, you know, see where the law takes us. I mean, what effect do you think this is going to have on environmental agencies?

Debbie Sivas: Yeah, I, you know, it’s hard to know, but my guess is that it is going to chill their enthusiasm for, you know, actually spending years and years, and they do spend years and years on these rules, right? And if they just think, at the end of the day, we’ve got a very hostile Supreme Court. We’ve got a new set of administrative rules that are going to, you know, get it thrown out anyway. I think they’ll be less inclined to do it or less inclined to do anything that’s sweeping and, you know, at a time when we actually need in, at least for me, in the climate space, we actually need the agencies to do a lot more, but we’re probably going to see a lot less, and, there’s, you know, right now there’s three big climate rules that EPA has issued in. Each one of them is under challenge, and these cases we’re talking about are probably going to affect each one of them. 

Rich Ford: One thing that strikes me is that the realities on the ground are that we need comprehensive regulation.

We need complex regulation. There’s a lot of things to be considered, and it’s just unrealistic to imagine one, that Congress could anticipate all of this and write a statute that’s sufficiently detailed to, you know, cover all of this. It’s also really arrogant to imagine that the courts can swoop in the last minute and understand the issues well enough to say, you should have responded to this comment or that comment more adequately than you did, and yet, that’s where we are, so we need expertise more than ever in this area, but these decisions are taking us back to some, I mean, perhaps to put too fine a point on it, 19th-century view of the way government would work, where you have Congress and the courts and that’s it, and they’re able to adequately deal with all of the issues that are confronting us. 

Debbie Sivas: Yeah, I totally agree. I mean, I feel like, in some ways, we’re going to take ourselves back to before the New Deal, right? 

Pam Karlan: That’s when we last didn’t have administrative agency.

Debbie Sivas: Exactly. So, yeah, and it goes back to Pam’s earlier point, like nitrous oxide, you know, like the courts don’t actually know what they’re talking about. I mean, this stuff is very complicated, just even in traditional air and water pollution, and it gets even more complicated when you’re talking about greenhouse gas emissions and climate change.

I mean, we have on this campus alone, we have hundreds of, you know, people working on these issues on the science and technology side, so it is very arrogant for, you know, judges to think that they, with their J.D., that they actually have something to bring to bear on this.

Pam Karlan: Where do you see the things going from here? I mean, have we, sort of beyond the non delegation point that you made, do you think that this is going to lead to states being more active in this space if the federal government is kind of pushed out of it? I mean, on some of the things like the “good neighbor policy,” the states can’t.

Debbie Sivas: Right. 

Pam Karlan: But on other stuff. You know, I mean, California can be a market maker in some ways because if California bans a particular substance or requires something, that often means, you know, companies nationwide are going to comply with that because of the nature of the California market.

Debbie Sivas: I think that’s right. You know, California with, you know, 40, 30 some million people, and it has been a leader, but, you know, and so I think states like California, New York, and others will continue to do this, but again, there’s been an attack on those states, so one of the rules that EPA has issued recently that’s under attack right now in the D.C. Circuit is, I think the case is Arizona versus EPA is a challenge to the electric vehicle standards, which there’s a whole provision of the Clean Air Act that allows California to set more stringent standards. Kind of comes out of the past of Southern California, L.A., you know, having to try to solve its smog problem decades ago, but so California, even Congress has given that authority to California, and then other states can follow it, and part of that challenge that’s now pending in the D.C. Circuit is really trying to say, no, California should not be allowed to be different here, so I think one is to attack the federal rulemaking, but then to start going after states in various ways, other things, one of the, so during the last administration, when there was a lot of attempts to deregulate and California was trying to do its own thing in energy, climate, and other environmental areas, you had some of the other states arguing that California should be preempted. It should be preempted because it’s a federal issue. At the same time, they’re arguing the Fed should have very little ability to regulate in that space. 

Pam Karlan: Yeah, it’s kind of heads you lose, tails we win. 

Debbie Sivas: Exactly. 

Pam Karlan: This has just been fascinating, Debbie, so thank you so much for coming on the show. I’d like to thank our guest, Debbie Sivas, for being with us today. This is Stanford Legal. If you’re enjoying the show, tell a friend, and please leave us a rating or review on your favorite podcast app. It’ll help us improve, and it’ll get new listeners to discover the show.

I’m Pam Karlan, along with Rich Ford. See you next time.