Change Comes to Short Creek

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This article by Elizabeth Shogren first appeared in the May 1, 2017 issue of High Country News with the title “Shifting scales.”

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Should courts defer to the expertise of agencies?

Our new Supreme Court justice doesn’t think so.

Just last year, when he was a federal circuit court judge in Denver, the Supreme Court’s new justice, Neil Gorsuch, did something judges rarely do. Gorsuch wrote the main opinion, explaining why he and two other judges on the 10th Circuit Court of Appeals ruled against the Obama administration in Gutierrez-Brizuela v. Lynch, an immigration case. But then he added an even longer analysis — just from himself — sharply criticizing a judicial precedent that federal agencies and environmental groups have relied on for decades to protect people, public lands and rare species. Known as the Chevron doctrine, it stems from a 1984 Supreme Court ruling.

Under Chevron, courts have given agencies wide leeway to interpret ambiguous statutes. Gorsuch wrote that the doctrine has allowed “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution.”

Chief Justice John Roberts Jr. and fellow justices watch as Neil Gorsuch signs the Constitutional Oath on April 10.
Franz Jantzen/Public Information Office Supreme Court of the U.S. via AP

Chevron has been pivotal in upholding key environmental regulations, from protecting habitat for endangered species to regulating pollution. Gorsuch’s aversion to it worries some Western legal experts, who fear that the nation’s highest court will no longer permit federal agencies to create safeguards for the West’s lands, waters, air and wildlife that are not explicitly required by Congress. “The statutory mandate of land-management agencies like the Forest Service, Bureau of Land Management and Park Service is old and creaky,” said Fred Cheever, a professor of natural resources and environmental law at the University of Denver Law School. “The combination of lack of deference and antiquated laws creates a potential conflict that may dramatically impact the West.”

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Comments about this article

Michael Waggoner Subscriber
Apr 18, 2017 02:19 PM
This is a thoughtful article, but I would like to advance a contrary view.
Our basic theory of government is that Congress enacts the laws, the executive enforces the laws, and the courts decide the facts and the laws' meaning. Administrative agencies have been fit into this structure under the theory that Congress by enacting laws still decides the policy, but the administrative agencies can fill out the details of those policies by issuing regulations, and that the agencies are enforcing the laws and their regulations largely through civil actions (rather than criminal prosecutions) and typically subject to judicial review.
The problem with Chevron deference is it allows the agency (rather than Congress) to decide the policy and it reduces the effectiveness of judicial review. There is not enough space here to discuss the doctrine of separation of powers, but it is a vital protector of our political process and of procedural fairness. Chevron was a departure from that long-held concept of justice. It is not enough to say that "Chevron helps safeguard the environment," because it can be just as the effective the other way, and because people concerned about the environment are also concerned about "liberty and justice for all."
Jim Bolen Subscriber
Apr 20, 2017 11:31 AM
good comments. I just wonder if we go back to congress deciding every policy detail and thusly micro manage these agencies that we will have massive stagnation in light of a congress that views collaboration as capitulationto the enemy. I don't have a legal background but I can't see that the Chevron decision as a departure from long held views of separation of powers as it seems to stay with in the guidelines set up by the legislature for government agencies. Many laws appear to be set up purposely broad so that the specific expertise from agency can be utilized. Without the Chevron decision ESA's protection of wildlife habitat and EPA including carbon dioxide in clean air protection could be eliminated which would be a disaster for endangered species and the climate. So the question is how to balance separation of powers doctrine with government agencies trying to effectively fulfill their mission

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