By Heraclio Pimentel and Ramona Monroe
There’s a lot of buzz these days about the Chevron doctrine. Indeed, it’s not uncommon to find headlines that read more like obituaries than your typical, dry legal analysis. These discussions permeate beyond legal and political circles, and it seems everyone has something to say about the “death” of the Chevron doctrine. That’s because for the last 40 years, the Chevron doctrine has played an important role in the determination of what federal law means.
So, what exactly was the Chevron doctrine, and what “deference” did it make? This column provides a brief overview of the Chevron doctrine, what it was, and what it means for the mining industry now that it’s gone.
But first some dry, legal analysis.
In a nutshell….
On June 28, 2024, the United States Supreme Court issued its opinion in Loper Bright Enterprises v. Raimondo.1 Loper overruled the 40-year-old Chevron doctrine, which required courts to defer to federal agencies’ interpretation of the statutes they implement when those statutes are ambiguous or silent. Moving forward, courts are no longer required to defer to a federal agency’s interpretation, unless the statute expressly grants the federal agency interpretive authority. Courts may still consider and weigh an agency’s interpretation in determining the meaning of a statute, but it’s the courts that will have to determine “what the law is.”
The Chevron Doctrine: What’s the deference?
As you probably know, the U.S. government consists of three branches: the legislative, executive, and judicial branches. Generally, the legislative branch makes the laws, the executive branch enforces the laws, and the judicial branch interprets the meaning of the laws. In other words, it’s the court’s duty to say what the law is.
In practice, many federal laws are implemented by federal agencies. Until 1984, when an agency’s interpretation of the statute was challenged, a court could assign “great weight” to an agency’s interpretation. This meant that courts could be persuaded by an agency’s interpretation of a statute based on the agency’s expertise and other factors, but courts were not bound by that interpretation. That changed when the Supreme Court decided Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.2 in 1984.
From 1984 until its recent overruling,3 courts applied the Chevron doctrine when an agency’s interpretation of a statute was challenged. A Chevron analysis involved two steps. First, the court would look at whether Congress had directly answered the question at issue and, if Congress’s intent was clear, the court would stop at Chevron step one and adopt the “clear” interpretation.
When Congress was “silent or ambiguous,” then Chevron’s second step required courts to defer to the agency’s interpretation of the statute if it was “based on a permissible construction.”
How to apply Chevron deference wasn’t always clear, and the doctrine’s application was clarified and limited over its life. Still, the precedent endured for 40 years prior to the Court’s recent decision in Loper.
Calling it quits: Loper overrules Chevron
Loper held that Chevron was contrary to the federal Administrative Procedure Act (APA). The APA is a federal law enacted in 1946 that prescribes procedures for how an agency acts and how courts review those actions. Under APA section 706, a reviewing court must “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” The Loper opinion concluded that the APA directs “that courts decide legal questions by applying their own judgment” and “makes clear that agency interpretations of statutes…are not entitled to deference.” Because the Chevron doctrine required the opposite, the two could not coexist.
In essence, the Loper decision returns courts to the prior practice that affords agencies respect and great weight to inform interpretations if evidence supports the findings. But courts must no longer give deference to agency interpretation of statutes unless the statute requires it. Instead, courts must once again decide what the law means, even when the law is ambiguous or silent on an issue.
In practice, courts may still consider and weigh a federal agency’s interpretation when determining the meaning of a statute; however, courts will no longer be required to adopt an agency’s permissible interpretation of an ambiguous or silent statute. Courts must still defer to agency interpretations when the statute expressly delegates discretionary authority to the agency, subject to the court’s review to ensure the agency acts within its delegation. Courts will also continue to defer to an agency’s lawful policymaking and factfinding, which is required under the APA.
As far as cases previously decided under Chevron, the Court emphasized that its ruling would not affect past cases that applied the Chevron doctrine. That does not, however, necessarily foreclose parties from re-challenging a prior interpretation under Chevron. It simply means that prior interpretations under Chevron are not automatically invalid because of Loper.
What It means for mining
Loper potentially implicates every federal regulatory action taken by an agency. Decisions about public health, endangered species, and pollution control, to name only a select few, are among the federal agency actions that are impacted by this decision. Chevron itself was a case dealing with the U.S. Environmental Protection Agency’s interpretation of the term “stationary source” in the Clean Air Act. But, because Chevron applied to interpretations by federal agencies, Loper does not change whether state courts defer to state agency interpretations of state law.
Industry has generally been in support of overruling Chevron.
At first, this can seem counterintuitive. If an agency approves a permit or authorization that is appealed by a project opponent, the mining company receiving the permit would want the court to defer to the agency action and uphold the permit approval. Because Chevron only applies to interpretations of statutes and not facts, it’s applicability to permit challenges is more limited than in the rulemaking context.
Agencies write the regulations with which industry must comply. Often, agencies propose new or amended regulations when there has been no change in the underlying laws adopted by Congress. In these situations, the courts will no longer give deference to the agency’s interpretation of an ambiguous law. Instead, the court will decide, for itself, whether the regulation complies with the statute.
For example, consider the U.S. Bureau of Land Management’s recent Conservation and Landscape Health rule, which the mining industry opposes. The rule could be challenged as inconsistent with law and, if a court were to find that the statute is ambiguous in some relevant respect, the court would determine the meaning of the statute as to that issue without deferring to the agency’s interpretation of the law. Another example relevant to mining is what constitutes “waters of the United States” for purposes of the Clean Water Act. In future litigation of that issue, the agency interpretation will not be entitled to deference under the former Chevron doctrine. Similarly, certain regulations adopted to implement the National Environmental Policy Act, which affects all mine projects that require federal permits could be challenged and the courts would not defer to the agency in interpreting an ambiguous law.
Clearly, the decision cuts both ways – if you agree with an agency decision, you want the court to defer to the agency’s interpretation, and if you disagree, you want the court to substitute its own judgment. On the whole, overturning the Chevron doctrine appears to benefit regulated industries when those industries seek to challenge an agency’s interpretation of a statute because the agency’s interpretation is no longer entitled to deference.
1 603 U.S. ___ (2024).
2 467 U.S. 837 (1984).
3 For those inquisitive minds, Chevron was overruled three days after its 40th birthday – happy birthday?
Heraclio Pimentel
Heraclio Pimentel is an environmental litigation associate in Stoel Rives LLP’s Environment, Land Use and Natural
Resources group.
Ramona Monroe
Ramona Monroe, partner, practices out of the Anchorage, Alaska office of Stoel Rives LLP where she co-chairs the firm’s mining group.