Checks and balances within our country’s law-making processes were constitutionally created and designed to prevent any one of the three branches (the president, the legislature, or the judiciary) from wielding too much power.

petrmalinak / Shutterstock.com

One of the first tasks of a new president who is looking to make broad changes in policies is to clear out any previous regulations that stand in the way of the new administration’s agenda.

To achieve Biden’s broad-reaching climate goals, it will take major actions by both the executive and the legislative branches and will require cooperation from the judicial arm not to stand in the way.

As far as the legislative branch goes, the Democrats seem to have enough votes in their favor to swing the necessary legislation.

The current makeup of the U.S. Senate shows 50 seats held by Republicans and 48 seats held by Democrats, with 2 seats held by independents who caucus with Democrats. This creates the first 50-50 spilt in the Senate since 2001. Vice President Kamala Harris serves as the Senate president, giving her tie-breaking authority. And, Democrats have held onto a slim majority in the House of Representatives.

The judicial sticky wicket

The Biden administration initially identified 48 regulations to review for revisions or recension, according to an article in JD Supra by environmental attorney Cheri Budzynski of Shumaker, Loop & Kendrick, LLP.

Any one of these could be challenged in the courts, and some of them will certainly be challenged.

However, “U.S. Supreme Court doctrine in federal administrative law and the court’s potential reappraisal of key precedents governing the modern administrative state may constrain the scope of Biden’s executive branch moves,” according to an article in Bloomberg Law by Joseph S. Lichstein and Michael J. Larson of Akerman LLP.

Political sparring

One of the Trump administration’s goals was the deconstruction of the administrative state, according to Stephen Bannon, a chief White House strategist during the Trump administration. That administration made many moves to put up roadblocks and barriers to strengthen against regulatory authority actions of future administrations. These included a slew of legislative actions and a “record-breaking pace of judicial appointments,” including three conservative U.S. Supreme Court (SCOTUS) justices.

In one of Justice Antonin Scalia’s final acts, SCOTUS “handed down an unexpected order announcing a stay of the Environmental Protection Agency’s (EPA’s) carbon emissions rules for many power plants,” according to Vox. “The vote was 5-4, along party lines, with Scalia joining his fellow conservatives in the majority.”

That plan, known as Obama’s Clean Power Plan, was replaced by Trump’s significantly weaker Affordable Clean Energy (ACE) rule. And Scalia was replaced with another conservative: Justice Neil Gorsuch.

In spite of Obama’s two liberal appointees (Justices Sonia Sotomayor and Elena Kagan), the conservative SCOTUS justices, including Trump’s three appointees ( Justices Gorsuch, Brett Kavanaugh, and Amy Coney Barrett), now hold considerable power in making the way they interpret the Constitution have teeth.

SCOTUS’s sacred duty is to serve as the “guardian and interpreter of the Constitution” to provide “the American people the promise of equal justice under law,” according to SCOTUS.

“Enter the Roberts Court, fortified by Trump’s appointees,” says Vox. “With six conservative justices, the Court has the votes it needs to make Bannon’s goal a reality — and at least five members of the Supreme Court have already endorsed a plan to erase much of the executive branch’s authority.”

Because Congress moves slowly, it can also regulate industry by passing laws that give federal agencies broad leeway in how they enforce laws. This is what happened with the Clean Air Act (CAA). Congress allowed for the rules governing power plant emissions to evolve as newer and improved technologies are invented.

“Congress … gave the job of figuring out what the ‘best system of emission reduction’ is at any particular moment to the EPA administrator,” according to Vox.

“All of this culminated in Justice Neil Gorsuch’s opinion in Gundy v. United States (2019), which called for strict new limits on federal agencies — and for the judiciary to even strike down many federal regulations as unconstitutional,” according to Vox. “Though Gorsuch’s opinion was a dissent — that is, he didn’t yet have a majority for it — five justices now on the Court have largely endorsed his framework, which relies on a conservative legal principle known as ‘nondelegation.’”

Nondelegation

It’s all about how SCOTUS justices interpret the Constitution.

“Nonedelegation is the largely defunct idea that the Constitution places strict limits on Congress’s ability to delegate power to federal agencies,” according to Vox.

“As a practical matter, when the Supreme Court hands down a vague and open-ended legal standard like the one Gorsuch articulated in his Gundy opinion, the Court is shifting power to itself,” Vox adds. “What does it mean for a statute to be ‘sufficiently definite and precise’ that the public can ‘ascertain whether Congress’s guidance has been followed?’”

“The answer is that the courts — and, ultimately, the Supreme Court — will decide for themselves what this vague language means. The courts will gain a broad new power to strike down federal regulations, on the grounds that they exceed Congress’s power to delegate authority.… If five justices get behind it, the nondelegation doctrine would give a Republican supermajority on the Supreme Court the ability to veto nearly any regulation handed down by a Democratic administration,” Vox notes.

Early victories

In January 2021, the D.C. Circuit Court of Appeals issued a decision vacating Trump’s ACE Rule. This marks the first of a series of early legal wins for the Biden administration that are credited to “the savvy of environmental group litigators, the desire of industry to strike a cooperative stance with the new administration and the legal missteps of the Trump administration,” according to Inside Climate News.

The D.C. Circuit’s decision vacating the Trump administration’s attempted rollback of Obama’s Clean Power Plan “excoriated the Trump administration for designing a toothless regulation on power plant greenhouse gas pollution based on what it said were ‘a tortured series of misreadings’ of the Clean Air Act,” adds Inside Climate News.

One thing the Biden administration has going for it is that many of the Trump administration’s regulations moved too far backward, thus creating harm to the environment, just as some of the Obama administration regulations were too far-reaching, resulting in costly and excessive equipment revisions for industry.

With skilled environmental attorneys, some of the Trump administration’s “bad” regulations are easily overturned.

“We saw that many actions by the Trump administration were a deliberate and illegal effort to permanently limit the ability of EPA to do its job protecting people and the environment,” said Ben Levitan, a senior attorney at the Environmental Defense Fund, one of the groups that have spearheaded the recent challenges, according to Inside Climate News. “These decisions clear the way for the Biden-Harris team to turn to the critically important work ahead.”

Agency autonomy: Auer and Chevron precedence

In 1997, SCOTUS held in Auer v. Robbins that federal agencies are entitled to deference in interpreting their own rules when the rules are ambiguous, according to the Bloomberg Law article.

“Most recently, in 2019, the court in Kisor v. Wilkie reaffirmed Auer, explaining that ‘Auer deference retains an important role in construing agency regulations,’ while noting its limits. The court explained that there must be genuine ambiguity; the court must have exhausted all of its traditional tools of construction before providing deference; and the agency rule must be reasonable.

“Four justices indicated that they would have overturned Auer, including Justice Brett Kavanaugh. In a concurring opinion, Justice Neil Gorsuch argued at length why Auer should be rejected. As a preview for Chevron challenges, Gorsuch also noted that there are ‘serious questions’ whether Chevron is constitutional and comports with the federal Administrative Procedure Act (APA).”

In Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., SCOTUS developed a two-step analysis. The first step requires courts to decide if Congress clearly expressed its intent in the related statute. If Congress’s intent is clear, agencies must follow Congressional expressed intent. If the statute is ambiguous, “then the court must determine whether the agency interpretation is based on a permissible statutory construction that is not arbitrary, capricious, or clearly contrary to the statute,” according to the Bloomberg Law article.
Chevron’s second analysis step requires courts to determine if the Congressional decision to leave the statute as ambiguous was done with explicit or implicit intent.

“If the decision to leave ambiguity was explicit, then the agency’s regulations are binding unless they are arbitrary, capricious, or manifestly contrary to the statute. If the decision was implicit, the court cannot substitute is own statutory construction so long as the agency’s interpretation is reasonable.

“In addition to Gorsuch, Kavanaugh has expressed skepticism toward Chevron as well. In a 2016 Harvard Law Review article, he noted Chevron ‘has no basis in the [APA]’ and ‘[i]n many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.’ Justice Clarence Thomas also cast doubt on Chevron in his Michigan v. EPA concurrence.

“The addition of Justice Amy Coney Barrett, known as a textualist, to the court creates further uncertainty for the future of Chevron and could provide a decisive vote,” the Bloomberg Law article adds.

Future SCOTUS implications

“Legal scholars expect that Trump-appointed judges will be skeptical of aggressive government action on climate without explicit authority from Congress,” according to Inside Climate News. This expected skepticism from justices is attributed to the nondelegation doctrine endorsed by several conservative SCOTUS justices.

“This does not bode well for the Biden Administration and its aggressive environmental policy,” according to Budzynski’s article in JD Supra. “There is a good chance that the Supreme Court will hear challenges to his regulations and may see the Supreme Court limit Agency deference. Thus, the Biden Administration may face a difficult time pushing his environmental policies forward.”