Chevron Deference is NOT a Silver Bullet

“The 6-3 [Supreme Court] decision will strip federal regulators of much of their power to issue rules outside the parameters initially set by Congress. It will take time for the implications of the court’s ruling to play out.”

            The Kiplinger Letter, July 3, 2024

Jack Ward Thomas’ “crazy quilt” is beginning to unravel.

He coined the phrase during his three years as Chief of the Forest Service [1993-1996] to describe the layers of overlapping and conflicting rules and regulations that made it almost impossible for the agency to manage our National Forests without running afoul of what he called “the Gordian Knot.”

Greek legend has it that in 333 BC, Alexander the Great was challenged to untie the complex knot, which bound an ox to a cart. Rather than fiddle with the knot, he simply severed it with his sword.

In a June 28 ruling, the Court severed the Gordian Knot in Loper Bright Enterprises v Raimondo, Secretary of Commerce, ET AL., holding that Chevron Deference was inconsistent with the 1946 Administrative Procedure Act because it gave too much authority to unelected officials.

Chevron Deference drew its name from Chevron USA v Natural Resources Defense Council, a 1984 Supreme Court case in which the Justices sided with NRDC, establishing a doctrine that required lower courts to defer to permissible agency interpretations of statutes the agencies administered – even when the reviewing court read the statute differently.

In its assessment of the eight-page Loper Bright v Raimondo decision, Kiplinger editors wrote, “Odds are that many current rules will be weakened. Moreover, agencies will be more circumspect about issuing rules that are unlikely to pass muster.”

George Will, a Washington Post syndicated columnist and 1977 winner of a Pulitzer Prize, traced the roots of Chevron Deference in his Sunday, July 14, Post column.

“When a federal agency ordered four small fishing companies to pay the estimated $700-a-day cost [reducing their profits 20 percent] of on-board government inspectors, the companies sued, arguing that no statutory language explicated authorizes the agency to impose this burden. The agency invoked Chevron Deference, a court-created 1984 doctrine that says when Congress uses ambiguous legislative language, or is silent on a subject, the court reviewing an agency’s disputed action should defer to the agency if its action is “reasonable.”

The agency in question was the National Marine Fisheries Service, which is run by the Biden Administration’s Commerce Secretary, Gina Raimondo, a Yale Law School graduate, venture capitalist, two-term governor of Rhode Island and 2019 chair of the Democratic Governors’ Association. Is she qualified to lead the Commerce Department? Did she know anything about the economic and cultural damage that Chevron Deference had done since 1984? I’ll leave those questions to you.

It’s a shame that Jack Thomas did not live to see this ruling, but somewhere he is smiling. It will take time for the full impact of Chevron to be felt, but I suspect the undoing of years of political rulemaking linked six federal environmental laws:

National Environmental Policy Act [NEPA, 1969]; Clean Air Act [1970];Clean Water Act [1972]; Forest and Rangeland Renewable Resources Planning Act [RPA, 1974]; National Forest Management Act [NFMA, 1976]; Magnuson-Stevens Fishery Conservation and Management Act [1976]

I don’t believe any of these bedrock environmental laws will be overturned, but I do believe the decades of baggage Chevron spawned via wayward federal agencies will get a thorough review.

I also believe the forest planning updates underway via the Biden Administration’s June 2023 Executive Order 14702 will come to a screeching halt, but I hope the inventory of mature and old growth [MOG] forests survives because it clearly states that the greatest threats to MOG forests are wildfire and insect and disease infestations, not climate change or logging.

We’ve been saying the same thing on Evergreen pages since the mid-1990s – not long after the Clinton/Northwest Forest Plan torpedoed a federal timber sale program that had prospered in the rural West since the late 1940s.

I have no idea what – if anything – will happen to the Clinton Forest Plan, but Nick Smith’s Healthy Forests Healthy Communities Monday thru Friday news summary offers a solid coast-to-coast summary of evolving public opinion and congressional action.

Michael Rains is doing a spectacular job with his Call to Action. It’s a superb primer for anyone who wants to better understand how our wildfire crisis developed over decades – and what we must do now to reverse course.

Here is Michael's latest - Version 17.9. Click on any of the colored boxes for more information on a particular topic.

The daily headlines are very discouraging at times because they reveal that most living in our nation's population centers believe loggers and lumbermen should not be allowed to sit at political tables where public forest policy is discussed.

Why? Because they are seen as profit mongers - or worse. They have no one to blame for their dismal image but themselves. Too many of them still cling to the silver bullet theory. "If we just do this or that, everything will be fine."

It won't. There are no silver bullets. The kind of work we do at Evergreen – and that which Nick Smith and Michael Rains are doing – is expensive, unrelenting and, at times, terribly frustrating.

I hope the Supreme Court’s Chevron Deference ruling will help us regain lost ground where public confidence is concerned. But the Equal Access to Justice Act [EAJA] is still in play, so we can expect that the anti-forestry mob will continue to do everything in its power to upend the kind of forest restoration work needed to reduce the frequency, size and destructive power of the West’s wildfire pandemic.

Slowing EAJA’s misuse requires that Congress write legislation that says what it means and means what it says. No more weasel words designed to appease the political fringes. We have a major crisis on our hands in the West. Half of the nation’s Federal Forest Estate - about 100 million acres is dying, dead or burnt to a crisp. The impacts on forests, wildlife, fisheries, biological diversity, outdoor recreation, communities and human health are staggering.