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The Insider

Support Builds At Supreme Court For Steps To Narrow EPA’s Discretion

The final rulings of the 2018-19 Supreme Court term mostly turned aside conservatives’ attempts to put strict new limits on EPA and other agencies’ rulemaking discretion, but support is nevertheless building among some justices to narrow or even repeal the doctrines.

Along with a decision that made it easier for property owners to challenge stringent local environmental and land-use laws, the high court’s conservatives authored concurrences and dissents in major regulatory cases outlining what they see as the need to crack down on federal agencies’ regulatory authority, including by slashing Congress’ ability to delegate powers to the executive branch.

Even though a majority of justices voted to preserve both judicial deference to agencies on the meaning of their rules and the long-standing state of the “non-delegation” doctrine, the court also sent strong signals that future suits over those principles could turn out differently.

Potentially the biggest change on the horizon to administrative law is the potential for a stronger non-delegation doctrine, which would put strict new limits on when and how Congress can give agencies the power to make rules with the force of law. Such restrictions would open the door to claims that landmark laws like the Clean Air Act and Clean Water Act give EPA too much discretion, and must be either narrowed or overturned.

The high court declined to take that step in Gundy v. United States; instead, a 5-3 majority kept in place the current principle that any law giving regulators an “intelligible principle” to guide their efforts is constitutional.

But four justices of the eight who participated said the time has come for a stronger non-delegation principle, including Justice Samuel Alito despite siding with the majority, while Justice Brett Kavanaugh -- himself a staunch opponent of broad agency delegated power -- did not take part, meaning he could provide a fifth vote to overhaul the doctrine:

Justices Eye Stricter ‘Non-Delegation’ Test But Ruling Avoids New Standard
The Supreme Court’s conservative wing is signaling a desire to radically strengthen its doctrine that bars Congress from giving agencies too much rulemaking discretion which in turn could impose major new limits on EPA’s authority, though the justices in a new ruling held off on setting a new standard because of the unique nature of the decision.

Writing for the dissenters, Justice Neil Gorsuch said the Constitution requires that “Congress, and not the Executive Branch, make the policy judgments,” and that agency rulemaking should consist only of making “factual findings,” and measuring them against criteria set in law.

While there is no guarantee that either Kavanaugh or Alito would back that specific test, Justice Elena Kagan wrote that if a version of Gorsuch’s opinion becomes law it would mean that “most of government is unconstitutional.”

Meanwhile, the deference suit Kisor v. Wilkie produced another narrow but possibly short-lived win for EPA and its allies, as Chief Justice John Roberts joined the court’s liberals in a 5-4 vote to maintain the principle of Auer deference, which gives weight to agencies’ interpretations of their own rules, though with a fresh emphasis on its limits:

High Court Preserves But Limits Auer Deference In Fractured Opinion
The Supreme Court by a 5-4 vote has preserved the long-standing doctrine that mandates judicial deference to EPA and other agencies’ “reasonable” readings of ambiguities in their rules, but the majority’s emphasis on the doctrine’s limits prompted conservative justices to warn the test has been so weakened it may as well be “zombified."

But Roberts emphasized in the case that the petitioner lost largely because he made little effort to show that the Auer doctrine meets the court’s test for overturning a past precedent, namely that it has proven to be unworkable or been rendered outdated by subsequent decisions, rather than merely being ill-considered. That leaves the door open to future challenges to Auer potentially winning Roberts’ vote.

And he further noted that his decision will have no bearing on how he considers suits over the more-significant Chevron deference, which deals with agencies’ interpretations of statutes.

Moreover, Gorsuch wrote in dissent that the new limits on Auer in Kagan’s majority opinion cut so far into the deference principle that it may as well have been overturned, leaving the precedent as a “zombified” relic rather than a living doctrine.

Another fractured decision by the justices, in Virginia Uranium, Inc., et al., v. Warren, et al., could be a sign of changes to come on the principle of “implied preemption,” where states can be barred from regulating in areas where Congress has already legislated if the state policy would frustrate federal goals, even if there is no explicit preemption in the federal law:

Supreme Court Leaves States Murky On Future Of ‘Conflict Preemption’
Observers say a new Supreme Court decision upholding a Virginia ban on uranium mining leaves unclear how much freedom states have to regulate at the outer edges of federal policy, with the justices split into three camps on how to deal with the doctrine of “conflict preemption” and unable to reach a consensus view.

The court split 6-3 to uphold Virginia’s ban on uranium mining as compatible with the Atomic Energy Act, rejecting arguments that the state was using mining concerns as a pretext to limit nuclear energy despite Congress legislating to encourage the sector.

But three conservatives in the majority would repeal the implied preemption doctrine altogether while the other three merely argued that Virginia’s law satisfies the precedent. And the three dissenters argued for a more stringent version of the doctrine, meaning the end result is little clarity on how states can regulate going forward.

Also at the state level, the court in Knick v. Township of Scott overturned a precedent that said property owners have to exhaust all other remedies for a regulatory “taking” by state or local authorities before filing a federal lawsuit. The decision opens the door to quicker federal challenges to state land-use policies, including those meant to combat environmental harms:

High Court Ruling Complicates States’ Push For Stricter Environment Rules
States looking to enact environmental laws or regulations more-stringent than the federal government could find it more difficult to defend those measures against legal challenges after the Supreme Court last week overturned a long-standing doctrine that limits when property owners can sue over regulatory “takings” by a state or local government.

The decision favors plaintiffs in those cases because federal courts are generally seen as more favorable to takings claims than state venues, and potentially less expensive to bring cases in.

Finally, the 5-4 decision rejecting -- for now -- the Trump administration’s efforts to add a citizenship question on the 2020 census represents an outright loss for agencies looking for broader discretion to act.

But the outcome of the case could be a major win for proponents of stringent rules as they hope to use it to spur greater judicial scrutiny of the administration’s environmental rollbacks:

High Court’s Census Decision Could Bolster Suits Over Trump EPA Rollbacks
The Supreme Court’s decision faulting the Commerce Department for adding a citizenship question to the 2020 census based on a “contrived” post hoc pretext could bolster suits targeting some of the Trump EPA’s rule rollbacks, such as a likely case over vehicle emission standards, where challengers say EPA has ignored or misrepresented the record.

The 5-4 majority, again with Roberts as the decisive vote, held that the administration’s justification for adding the question is a pretext and ordered officials to come clean on their true motives for the action. That precedent could stand for more probing review of deregulatory EPA actions that environmentalists say are motivated by a desire to help industry rather than environmental protections.

However, the case is still proceeding, as Roberts’ order only remanded the issue back to the Department of Commerce, meaning there is still a chance for the Trump administration to reverse its loss, and the precedent it set.