As we have previously discussed on this blog, a cornerstone of US administrative law, Chevron deference, is in flux. That fluctuation and its eventual resolution will impact US businesses, including in the promulgation of critical environmental regulations. Chevron deference describes a doctrine articulated by a unanimous US Supreme Court in its 1984 decision, Chevron USA, Inc. v. NRDC. The late Justice Scalia—a former administrative law professor and sometime defender of Chevron deference—articulated the doctrine in a 2015 decision as follows: “Chevron directs courts to accept an agency’s reasonable resolution of an ambiguity in a statute that the agency administers.” Justice Scalia also noted in a different 2015 decision that Chevron deference “provides a stable background rule against which Congress can legislate.” Finally, though his views evolved over his career, Justice Scalia explained in a different context, that the deference is grounded in the notion that agencies, unlike courts possess “expertise,” an “intense familiarity with the history and purposes of the legislation at issue,” and a “practical knowledge of what will best effectuate those purposes.”
All that may not matter. Developments at the US Supreme Court or Congress (or both) could result in a fundamental change or wholesale elimination of the doctrine.