Commentary: A Conservative court upends regulatory agencies. Our nation and our planet will suffer.

Justice Katanji Brown Jackson and Chief Justice John Roberts. Photos courtesy of the Supreme Court and Joint Chiefs of Staff, respectively. Montage by Kevin Coughlin
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By Linda Stamato

Setting aside a 40-year precedent, the U.S. Supreme Court last month challenged judicial deference to regulatory agencies, satisfying the conservative corporate community that has longed for this day.

When you want to know what lies behind a decision by a legislative body—and now, by the Court—ask yourself: Who benefits?

With the recent Court rulings in cases challenging federal regulations, the answer is abundantly clear. It’s business that benefits, plain and simple. We, the people, do not.

The emboldened high court ended judicial deference to agencies that make critical decisions. This sets up the courts as final arbiters across a myriad of rules that have evolved over time to protect the environment and ensure the safety of drugs, food, and the health and safety of workers.

We had to know it was coming. Free market orthodoxy and its sidekick, deregulation, gained a huge plug when the Court issued a ruling in Sackett v. EPA that diminished the authority of the Environmental Protection Agency over wetlands.  It was a frightening move for the country, and definitely bad news for the planet.

Now we have additional cause for grave concern. Decisions in June limit the EPA’s reach in protecting air and water quality, and extend to food and drug safety, employment standards and investor protection.

Adding insult to injury, the Court also extended the time frame to file challenges to regulation, amplifying the impact of the other decisions.

On investor protection, the conservative majority ruled that penalties for fraud that are handled in-house by the Securities and Exchange Commission, rather than by federal courts, violate the Constitution’s Seventh Amendment right to a jury trial.

That decision could reverberate through other agencies, frustrating their enforcement of regulations as well.

THE ROLE OF ADMINISTRATIVE LAW

Actions of federal administrative agencies largely have been insulated from judicial review ever since a 1984 Supreme Court ruling known as the Chevron decision.

It established the principle, which became precedent, that courts ought to defer to a federal agency’s interpretation of ambiguous statutes. Agencies have been free to plausibly interpret their authority if Congress has failed to speak precisely about a question at hand.

Expertise, after all, resides in these agencies. Courts will be hard-pressed to deal with what the agencies were created to do in the first place.

Some 18,000 lower court decisions affirmed the “Chevron deference.”  The precedent even had vigorous support from the late conservative Justice Antonin Scalia because, as he said, “it reflects the reality of government.”

The double-whammy has deep roots in a once-confidential memo, Attack on the American Free Enterprise System, which I explored a while ago. Written by Lewis F. Powell Jr. in 1971, just months before he ascended to the Supreme Court, the memo was a blueprint for funding the deregulation movement.

Conservatism now commands impressive support in the federal judiciary, thanks to Trump-era appointments. As the high court’s recent decisions attest, it holds sway in the Supreme Court’s majority.

Our polarized “culture wars” and “clash of values” all channel Powell.  They go hand-in-hand with the mounting erosion of trust in public institutions and government agencies. This public antipathy has spread to regulatory bodies, and toward the independent press that keeps those bodies accountable. The focused attack on the administrative state, maligned as “the Deep State” in far-right quarters, is an all-out effort to end the primary missions of regulatory agencies.

In particular, placing the E.P.A. implementation of the Clean Air and Clean Water acts in jeopardy is shocking.

Rachel Carson, marine biologist and author of The Silent Spring, must be turning over in her grave, as scientists, academic researchers and policy wonks continue sounding alerts about the perils we will encounter without regulations guarding public health and the very survival of the planet.

The Powell memo gives an understanding of what is behind decisions emanating from the high court.

What has been unleashed is not easily reversed.

We face challenging days ahead, with fires and floods and a weakened EPA. Other  agencies also now are limited in what they can do — what they were created by Congress to do–for the United States and for the earth. Today, it’s the Supreme Court that is shaping American society and what remains of government of, by and for the people.

The November election assumes even greater significance as a result. Not only is the presidency at stake–with GOP standard-bearer Donald Trump arguing for elimination of the “Deep State,” as his sidekick Steve Bannon characterizes it, to please their corporate sponsors.

Congress also is up for grabs. That’s where defining and strengthening regulatory responsibilities rests. Good luck expecting any activity on that dysfunctional front. Indeed, Stuart Shapiro questions the wisdom of “moving policymaking from a part of government that people trust and approve of to the one that they have the least faith in.”

The Supreme Court’s muscular moves are occurring as American trust in government is declining. Some might blame growing regulation for this negative public perception of government. But that is not the case; the benefits clearly have outweighed the costs.  Our air is cleaner and our water is safer, and so are America’s workplaces.

Dive deeper into the data, and one finds a far more complicated relationship than conservatives would have us believe. Agency actions may be among the few things people like about government.

The Supreme Court’s dismantling of precedent is intentional and profoundly consequential, make no mistake about it. And it’s not over yet.  In her dissent, Justice Katanji Brown Jackson warned that the new Chevron decision could unleash “a tsunami of lawsuits against agencies,” with “the potential to devastate the functioning of the federal government.”

As I see it, that is just the point.

MORE COLUMNS BY LINDA STAMATO

WATCH LINDA STAMATO ON NJ PBS ‘STATE OF AFFAIRS’

Linda Stamato is treasurer of the nonprofit Corporation for New Jersey Local Media. She also serves as a commissioner on the Morristown Parking Authority, and a trustee of the Morristown and Morris Township Library Foundation. And she is Co-Director of the Center for Negotiation and Conflict Resolution at the Edward J. Bloustein School of Planning and Public Policy at Rutgers University, where she is a Faculty Fellow.

Opinions expressed in commentaries are the authors’, and do not necessarily reflect those of this publication.

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14 COMMENTS

  1. “Tired of it all,” well, aren’t we all? More than tired of a lot of things? I get that. And, at times, actions by government feel intrusive; you’re right. Still, you have to admit that because of the laws that our elected representatives passed—the elected folks you want to be in charge—laws such as the Occupational Safety and Health Act, and the Clean Air Act, and others, of course, have improved the quality of the air we breathe and the places we and our neighbors work. The task of implementing the objectives of that those laws are turned over to the regulatory bodies that the laws create. The rules that agencies propose have to undergo a rigorous vetting, including weighing comments from those who support, oppose, or make recommendations to modify the proposed rules, and most rules, then, are changed as a result of that process (mandated by yet another act of Congress, the Administrative Procedures Act). Our water is safer to drink and our workplaces are far safer, I’m sure you know that. But, really, gas appliances, including gas stoves, have not been prohibited; research has shown that there are hazards associated with their use; people can choose to improve ventilation to lessen the harm, for example, particularly in small apartments with little circulation, if they want to. Some utilities are providing incentives to keep their customers using gas but making it safer for them to do so. They can do this because they are informed. Regulatory agencies can assist in getting that awareness raised. That is not intrusive; it’s educational.
    People will differ on whether agencies should do more or less but the Supreme Court has decided that for us. And that court, “Tired of it all,” is not populated by any elected representatives.

    Congress is; it passes the laws that create the agencies to implement them. The Supreme Court has seriously restricted what they can do now. It’s up to Congress, our elected representatives, as you say, to change that if, that is, it can get around to doing it and that, in my judgment, is unlikely given the current disposition of the House of Representatives.

  2. The “sky is falling” and “the end of civilization as we know it” crew is out in earnest these days…

  3. While the author opines that this decision is only to benefit business, I see many instances where the unelected agencies are doing things to HARM people which would help many businesses. A perfect example is the proposed elimination of gas kitchen appliances such as stoves as well as furnaces and water heaters. For residential use, it should be just fine for businesses either way but for the public? I’ve owned many of both types and electric water and home heating is expensive. As for cooking? I’ll just say that after almost two decades of living with a very nice all-electric kitchen, we had gas cooking as a high priority when we moved to our current home.
    We can talk about the issue of electric cars being mandated/internal combustion eliminated until we are blue in the face as there are many opinions and rationales on both sides and in the end, some people will not be happy but let it be put up to the ELECTED REPRESENTATIVES instead of the agencies.

  4. JT, Congress also passed the Administrative Procedures Act that requires all regulatory agencies to post potential regulations and weigh, seriously, the comments they generate before any rules/regulations are finally adopted. It’s a fair and open process and those, let’s say corporations, that want to alter the proposed “regs” can make their recommendations….and there are still appeals beyond that stage as well as opportunities to negotiate, through a process called regulatory negotiation—an attempt to get agreement across the board on a rule, a regulation, that can be “lived with” by all those in contention.

    In any event, the reason that courts, in 18,000 cases, deferred to the expertise in the regulatory agencies—the Chevron doctrine—is because they recognized that they lacked the very thing that is most needed to produce solid results. That approach worked for a very long time. You should give some consideration to precedent; there is usually a good reason for it.

  5. The power to pass laws resides in Congress. The power to interpret laws resides in the judiciary. Unelected bureaucrats and government agencies do not have the Constitutional authority to do either of these, yet they have under the Chevron ruling. For too long, the Executive branch has exceeded it authority by issuing executive orders through government agencies to create laws that would never have a chance of passing in Congress. Congress is equally at fault as they have ceded much of their power to the Executive by not enforcing their Constitutional authority.

  6. I would also like to thank all who commented; I welcome criticism and support, too, of course, but, fundamentally, I’m just pleased to see that attention is being paid and, perhaps, some learning is also taking place. Morristown Green provides a place for dialogue, limited though it is, and I am pleased that so many take advantage of the opportunity.

  7. John, you say this: “I am not for unelected people unbeholden to voters given this power” and yet you embrace the high court’s decision that gives the power to judges, who are not accountable to voters by any measure. Surely you know that.

  8. Not every regulation is a slam dunk, Connor, and some regulations are burdensome and require adjustment. But what the high court has done has consequences far beyond the example you give. And, by the way, you seem unaware, frankly, that regulatory agencies don’t simply develop and impose regulations regardless of any cost/benefit analysis. In fact, the first stop on the regulatory trail is to the special committee that reviews proposed regulations and the number one priority consideration, currently anyway, is whether the regulation will hurt business. That strikes me as putting an absurd priority in one area without consideration to climate warming, social impact, “environmental justice,” and so forth. Also, you should know that any rule promulgated by an agency has to be placed—it’s called “noticing”—in the Federal Register (see Administrative Procedures Act) for a specific period of time and comments are to be received and given weight in the development of the final rule. This is an extensive and time-consuming process but, again, Congress passed this Act to ensure that any and all had opportunities to offer corrections, suggestions, total opposition, support etc…. You are over-simplifying a complex, complicated and, to me, at times anyway, an unusually burdensome effort to accommodate all voices. At the end of the day, however, our food is safer, our environment more critically protected, our airplanes safer (an “under-performing agency” accounts for the Boeing tragedies by the way….not an over-performing one). Would you really feel comfortable flying without any regulations being placed on the inspection of the aircraft, no restrictions on the hours pilots can fly, etc.? I doubt it.

  9. The people in these regulating agencies were not elected by we the people to create laws. They can create these policies all they want and submit them to the various congressional committees for review so that they can then proceed to make them law or not. I am not for unelected people unbeholden to voters given this power. Bravo supreme court

  10. For anyone who owns lands or ever looked to develop something, navigating wetlands, even just touching them, was an absolute nightmare of litigation and paperwork. You could spend 200K and 1000 hours and get nowhere to make a tiny modification to a wetland area. Linda, I don’t know you or if you have any experience with them, but I sense the attitude of every regulation of the EPA is good.

    I cant disagree with you more, and really think you are attaching yourself to a cause you think is good, when its not. The Supreme Court is not activist, its ruling in terms of what the federal government has a right to enforce on people and what it does not. Another concept I think is foreign to you as well.

  11. That’s a sad comment, Jim Adams, what does Trump have to do with the Supreme Court’s decisions, reversing decades of high court decisions and 18,000 lower court decisions so it can substitute courts for experts in creating rules that keep us safe and healthy and reasonably secure? These agencies were created by bipartisan votes by the way….and over time. Trump has nothing to do with it.

    And, Joe, yes I do remember that complaint and no, the word immunity does not appear in the U.S. Constitution but some language does that would limit it, for sure, if the conservative majority had chosen to stick with its own commitment to “originalism.”

    Thank you!….

  12. Remember when conservatives used to complain about “activist liberal judges”? What do we have now but an activist conservative Supreme Court. This opinion is bad enough, but tell me: where in the Constitution does it use the word “immunity”?

  13. An observation by Sam Sankar, senior v.p. for programs at Earthjustice, hones in on my concluding point: “Any time the court makes it harder for the government to regulate, and easier for businesses to challenge regulations, it makes it more likely that the industry will injure the public and the planet in search of profits. It’s basic economics.” Regulatory agencies, doing the work Congress created them to do, are essential to the operation of balanced government.

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