Effects of the U.S. Supreme Court’s “Chevron deference” decision on agriculture and environmental law — such as the definition of Waters of the United States — may take years to play out, said Brigit Rollins, staff attorney with the National Agricultural Law Center.

The June 28 ruling overturned a 40-year-old doctrine which said that courts should generally defer to federal agencies for the rules they make, with the assumption that the agencies are subject matter experts and that the rules are reasonable. Chief Justice John Roberts, in a 35-page decision, called the doctrine “fundamentally misguided.”

National Ag Law Center Staff Attorney Brigit Rollins says the Chevron deference decision spawns more quetions than answers. (U of A System Division of Agriculture photo)

“While the court said was that previous cases that relied on Chevron could not be reopened in light of this decision,” she said. “Things like WOTUS  — the current definition of the Waters of the U.S. — are still out there. The current definition hasn’t really had a judge look at it at all.

“It hasn't been ruled on under Chevron deference, which means that's fair game,” she said.

Water of the U.S.

The process to define “waters of the U.S.” has been controversial, and the Environmental Protection Agency and U.S. Army Corps of Engineers have struggled to craft a lasting definition since the Clean Water Act was adopted by Congress in 1972.

The latest definition was issued in August 2023 after SCOTUS ruled in May in the case of Sackett vs. EPA, gutting the previous definition.

The SCOTUS decision may have other ripples in another branch of government: Congress.

“The biggest takeaway is that the court is pretty much saying it is our job to tell you what the law is to interpret agency statutes,” Rollins said. “In the past they've used this doctrine of Chevron deference to defer to reasonable agency interpretations of statutes when Congress has been ambiguous or otherwise silent.

“I think it does put greater pressure on Congress to be more specific and precise when they are drafting statutory language,” she said. “It puts the onus on Congress to be very clear when they’re making a grant of authority to an agency on what that agency is authorized to do, and what it is not authorized to do.”

Right now, “we have a lot more questions than answers,” Rollins said.

Source: University of Arkansas System Division of Agriculture