The Chevron Doctrine -- what is often referred to as “Chevron deference” – is based on the precedent set by the Supreme Court about four decades ago, which some argue has overly empowered the administrative state (the full body of federal administrative agencies). In a nutshell, the Doctrine holds that, as applied to the actions of administrative agencies, if the statutory language on a specific issue is clear and unambiguous, then the agency must apply the law accordingly; however, if the statutory charge is ambiguous or subject to more than one rational interpretation, then the Courts are to give deference to the agency’s expertise and interpretation so long as it is reasonable.

As noted in a thorough article by Jeff Overley, over the last three-to-five years, the Supreme Court – not necessarily on ideological lines – has been chipping away at elements of agency authority. But consistent with ideology, the movement reached an initial peak in West Virginia v. EPA, wherein the Court adopted a new “Major Questions Doctrine,” rejecting the notion that it must defer to an administrative agency’s interpretation of an ambiguous statute where that interpretation has vast “economic and political significance.”

Two cases are pending before the Court that would seek to further erode Chevron deference. In Loper Bright Enterprises v. Raimondo, at issue is a fairly narrow National Marine Services Fishery (“NMFS”) rule that the D.C. Circuit Court of Appeals upheld on deference grounds; however, a far-reaching array of parties have weighed in on both sides of the issue supporting either the rejection or preservation of the Chevron standard.

The other case involving Seafreeze Fleet LLC, just recently accepted by the Court, asks the same question as raised in Loper relating to the administrative deference standard being applied to an NMSF ruling. As noted in an article by Katie Buehler, some think the Court accepted this case to ensure the full Court, including Justice Jackson (who recused herself from the Loper case because she had been involved in the case at a lower appellate level), will be able to address the Chevron deference standard in full. 

The upshot of all this is if the Chevron standard is further undercut, we may see even more challenges to agency rules and decision-making and, in theory, more precise legislating by Congress. But in the interim, some agencies find themselves in limbo while awaiting the Supreme Court’s ultimate decision on Chevron. For example, the Federal Energy Regulatory Commission (“FERC”) recently asked the Court to stay an appeal of a FERC Order on solar issues pending the outcome of the Loper and Seafreeze cases. Those cases are to be argued before the Court in January, with a decision on the veracity of the Chevron standard expected in late spring. The fate of the administrative state lies in wait.