Ainee Athar’s Post

Friends - check on the administrative lawyers in your lives today. We're not OK. Loper Bright Enterprises (the Supreme Court's newest torpedo through precedent) takes the basis of entire careers and says, "LOL, we're not doing that anymore." It gets rid of Chevron Deference - a principle under which courts deferred to agencies' reasonable interpretations of ambiguous statutes within their subject matter expertise. Only if Congress said "you can't do this" or an agency's read of a law was way off base could a court say "you overreached; can't do that." Now the rule is going to be that if a court decides it doesn't like the -substantive- outcome, they can use that fact of disagreement to find an ambiguity (because there's always an ambiguity) and overrule the agency's call. The ruling takes the 250-year old principle that Courts are the # 1 deciders of what laws mean and takes it to crazy town. For agencies, questions of law are everywhere. Probably on purpose. Is a "stationary source" regulated under the Clean Air Act only one smokestack or a whole plant (as at issue in Chevron itself)? That's a question of law. But it's a question of law that an agency -should- determine, not Congress and not the courts. Here's the deal: unless there's something wrong with our laws, we don't want Congress to change them every year. It would be chaos. But science and technology (not to mention civil rights) are constantly evolving. So, rather than having the lawyers and businessmen of Congress decide what level of air pollution is OK, they delegate the decision to EPA, asking them to set "safe" levels. That's ambiguous - but we want it to be. First, EPA defines for itself what "safe" means - how little cancer does it need to cause to be considered safe? That's a question of law - and the crux of our problem. Then EPA applies its definition - when the science supports a "safe" level of 100 ppm, that's the standard; when newer science shows cancer rates above EPA's definition, and "safe" now needs to be below 20 ppm, it can change the rule to keep up. We WANT our agencies to have this power to apply their expertise and new information. Post-Loper, an industry group can challenge and convince a judge who knows nothing about air quality science that, forget 20 and 100, 10,000 ppm is fine. The court could then say that "safe" is ambiguous - because it is. Congress did that on purpose! The court then substitutes its own judgment for that of EPA or Congress. By "safe" Congress obviously meant good 'nuff to keep business going even while some people die. So, either 10,000 ppm is now fine, or Congress needs to craft scientific policy in a new law that specifically says "the limit is Y ppm" (which doesn't change when science does) or "causing fewer than 1 in X million cases" which at least preserves some hope, but is arbitrary sausage and not protective of health. This just isn't how we want things to work. But it is, tragically, law.

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