Statement on the Demise of Chevron Deference
Buoyed by a potent lobbying force in Washington, the U.S. meat industry has long enjoyed a relatively breezy relationship with federal regulatory agencies. In their slaughter facilities, meatpacking firms have been allowed to operate their kill lines at ever-increasing speeds, subjecting workers to routine repetitive stress injuries. This, despite the existence of the Occupational Safety and Health Administration, with its charge to ensure a safe workplace for everyone. Communities situated near the industry’s large livestock confinements endure persistent air and water pollution—even under high-profile statutes as the Clean Water and Clear Air acts, ostensibly enforced by the Environmental Protection Agency (EPA). Other examples of agency reticence at the expense of public health abound.
A recent landmark decision by the U.S. Supreme Court, Loper Bright v. Raimando, will likely further lighten the industry’s regulatory burden. With a 6-3 vote that united the court’s conservative majority, Loper Bright nullified the so-called Chevron deference doctrine, established in a 1984 SCOTUS decision known as Chevron v. National Resources Defense Council.
Put simply, Chevron deference empowered federal agencies to interpret the grey areas of laws passed by Congress and signed into law by the president. For example, a wide-ranging statute like the Clean Air Act can’t spell out every circumstance that would lead a firm to spew pollution into the atmosphere. Chevron gave the EPA and its staff scientists leeway to fill in the blanks when it encountered inherent ambiguities in such cases—and Congress often purposefully wrote statutes intending for agencies to develop specific regulations needed to accomplish the intent of such laws.
The new decision takes that power away—and establishes the courts themselves as the arbiter for how regulatory statutes should be interpreted. Ironically, the 1984 Chevron decision in question was championed by that era’s conservative justices, most notably Antonin Scalia. And it arose in defense of Big Oil-friendly interpretations of the Clean Air Act made by Ann Gorsuch, who then served as Environmental Protection Agency administrator during the Reagan administration—and is the mother of Neil Gorsuch, a Trump-appointed associate justice who voted with the majority to overturn Chevron in Loper Bright. Conservative enthusiasm for Chevron peaked during the elder Gorsuch’s EPA tenure. In 2015, when the Obama administration moved to regulate greenhouse gas emissions under the Clean Water Act, it cited Chevron deference as empowering it do so. By then, Chevron had transformed into a bogeyman in conservative legal circles.
Without Chevron, the power to interpret Congressional statutes has shifted from the executive branch to the judiciary. As Associate Justice Elena Kagan wrote it in her minority opinion, Loper Bright turns the Supreme Court’s anti-regulation majority “into the country’s administrative czar,” having wrestled the power to interpret Congressional statutes from federal agencies.
And it’s not just the nation’s highest court that has bolstered its power. “One thing that we can say about Loper Bright is that it will very likely free the hands of lower-court judges to dispense with regulations that they dislike,” Josh Chafetz, professor of law and politics at Georgetown University Law Center, said in July 23 testimony before the Committee on House Administration. Chefetz argued the decision would exert a chilling effect on future regulation as agencies trim their sails in anticipation of judicial challenges. Nor is existing regulation safe. U.S. Solicitor General Elizabeth Prelogar warned that justices that thousands of rulings “would be open to challenge,” and that “litigants will come out of the woodwork.” That’s because for decades, Congress has been writing laws with Chevron in mind—that is, with the intention that regulatory agency experts would judiciously interpret any vague areas. The decision arrives at a point when federal courts at all levels have been amply stocked with judges hostile to regulation, after a decades-long campaign by the right-wing Federalist Society, a legal-advocacy group whose funders include the Koch brothers and other fossil fuel interests. “The demise of Chevron is being widely interpreted as an expansion of judicial power,” Don Moynihan, a professor at the McCourt School of Public Policy at Georgetown University, recently wrote. “It is that, but it also and more profoundly an expansion of power of moneyed interests.”
Now that it has been snuffed out, what are the implications for the already-tattered regime that regulates the activities the powerful corporations that produce the great bulk of our meat supply? In many cases, Loper Bright won’t change much at all. Take the people who slaughter the livestock and package the meat we eat. The 1970 Occupational Safety and Health Act created a new agency called OSHA, with the charge to "assure safe and healthy working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education, and assistance." Fifty-four years later, the fact that meatpacking workers still routinely incur repetitive-motion injuries on the job is a failure of enforcement that won’t be affected by Loper Bright.
Even so, like many polluting industries, Big Meat welcomed the Loper Bright decision, and will likely find in it further opportunities to evade regulation. Trade groups including the American Farm Bureau Federation, the National Cattlemen’s Beef Association, the National Pork Producer’s Council, and the North American Meat Institute collaborated on an amicus brief urging the court to “to take this opportunity to overrule Chevron.”
One looming target could be rules recently proposed by the US Department of Agriculture to level the playing field between independent livestock farmers and large meatpackers, a long-delayed update to the Packers and Stockyards Act of 1921, mandated by Congress in the 2008 farm bill. Loper Bright “will certainly be a part of our decision making as we look at legal strategies in opposing the Administration’s misguided and damaging proposed rules changes to the Packers and Stockyards Act,” a spokesperson for the Meat Institute told Politico after the ruling. Also in the crosshairs, according to Politico: proposed EPA guidelines, released last December, that require meat and poultry slaughterhouses to curb nitrogen and phosphorus pollution into waterways. The industry is already fighting the stipulations in court—and Loper Bright could bolster the effort.