This morning the U.S. Supreme Court issued a potentially groundbreaking opinion regarding federal agency rulemaking.
On a 6-3 vote, the Court overturned the 40-year old Chevron deference, the doctrine that required courts to defer to federal agencies’ expertise and judgement in rulemakings when the law was ambiguous. Although it does not in any way change or invalidate existing laws or regulations like Section 106 or NEPA, the case could have implications for these and other federal agency rules down the road.
Here is a quick rundown on the decision and what it may mean.
What is Chevron?
The Chevron deference was first created by the Court in 1984 and since then has been used to protect regulations from legal challenges hundreds of times. Chevron’s backers said it provided necessary flexibility for agency experts to write rules on the environment, healthcare, workplace safety and other issues when the laws passed by Congress were vague or unclear. Opponents charged that Chevron gave unelected agency personnel too much leeway in how they write regulations.
What Did the Court Decide Today?
In the case Loper Bright Enterprises v. Raimondo, the Court’s majority ruled that the Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and that courts may not defer to an agency interpretation of the law simply because a statute is ambiguous.
The case involved the National Marine Fisheries Service (NMFS). Congress authorized the NMFS to create a fishery management program, which could allow for federal observers to be carried on board a fishing boats. The NMFS issued a regulation that required the fishing industry to pay for the costs of these observers, which is typically around $710 a day, even though the law does not explicitly allow NMFS to charge the fee – but does not prohibit it, either.
Fisheries sued the NMFS, but lower courts ruled that the Chevron doctrine meant they were powerless to second-guess the rule. The Supreme Court reversed that by tossing out the Chevron doctrine.
What Does this Mean for Federal Regulations?
In the immediate term, nothing directly. It does not mean that all federal regulations are suddenly moot. It would take lawsuits challenging specific regulations to knock them down, and even then, courts could still decide that agencies were acting reasonably when writing regulations.
Does This Impact Section 106 or NEPA?
Not at all. Section 106 of the National Historic Preservation Act and the National Environmental Policy Act are laws passed by Congress. The Court decision does not affect laws in any way.
Could This Impact the ACHP Section 800 Regulations?
In the short term, no. Beyond that, it’s unknown. Some have raised concerns that the end of Chevron means that Advisory Council on Historic Preservation’s (ACHP) regulations implementing the NHPA (a.k.a., the 800 regs) could be challenged as going beyond statutory intent, particularly with regard to the costs borne by private sector parties for conducting 106 reviews.
However, the regulations may withstand legal challenges even absent Chevron, because federal law already authorizes the ACHP to charge “reasonable costs … to Federal licensees and permittees as a condition to the issuance of the license or permit” and, more broadly, allows the ACHP to “promulgate regulations as it considers necessary to govern the implementation of [Section 106] in its entirety.”
What Can I Do About This Case?
First of all, don’t panic. As noted above, the Court’s decision does not have any immediate effects on Section 106 or any other preservation/environmental regulations. Over the coming days and weeks, ACRA’s Government Relations Committee will analyze the Court decision and subsequent developments to ensure that the 800 regs and Section 106 are protected. Should any threats to these rules emerge, ACRA and its partners in the preservation community will work to address them.
Where Can I Get More Information?
ACRA will provide more resources and information to member firms in the coming days and weeks as the dust clears. Keep checking ACRASphere for more information.
I think ACRA’s initial review is premature and too sanguine. Who can know what the full impacts will be before the challenges have even begun ? Especially if there is a new administration in 2025 ?
To declare that “106” is not effected “at all” is manifestly untrue, because a lot of things are habitually included under “106” that have never been codified by Congress – for example, “TCPs”, and “Traditional Landscapes”, which were conspicuous overreaches coined by NPS out of thin air. The NPS does not write our laws, and they don’t get to impose their novel inventions of pseudo-law at their pleasure. That’s the whole point of the Chevron ruling !
I suspect the government Solicitors are going to be very busy with Chevron.
Many thanks for your comment. We always appreciate hearing from members of the CRM community. We’d like to take a moment to respond to the points you made.
As we noted in the original post, the impact of Chevron on the 800 regulations is unknown, and depends upon whether lawsuits are filed in court challenging the regulations. When and if that happens, it will be up to the courts to determine how to rule. As we also noted, there is a divergence of opinion at this early stage on whether any challenges to the regulations would succeed.
For its part, the ACHP’s Office of General Counsel issued a statement after the Loper decision was issued stating their opinion that “the regulations implementing Section 106 of the National Historic Preservation Act, codified at 36 C.F.R. part 800 (Section 106 regulations) should be safe from challenges emanating from the Loper decision,” noting that 1) the Court ruled that cases previously decided using the Chevron deference remain in effect under stare decisis (the doctrine that courts will adhere to precedent in making their decisions); and 2) the 800 regulations were previously upheld by the courts in 2001 using the Chevron deference.
Of course, nothing precludes the Court from changing its mind (it did not adhere to stare decisis in the Loper case, after all); nor does it prevent potential challenges to the 800 regulations from being filed. That is why ACRA is continuing to monitor any legal action and work with its allies in the preservation community to respond to any challenges when and if they arise.
In your comment, you said that it is untrue to say that 106 is not affected by the Loper decision. It is important to distinguish between the statute passed by Congress (Section 106 of the National Historic Protection Act, codified at 54 USC § 306108) and the implementing regulations published by the ACHP (36 CFR Part 800). The Loper decision does not affect the statute in any way; it, and the underlying Chevron deference it overturned, addresses the authority of courts to overturn agency regulations, not the ability of courts to rule on statutes. In practical terms, any threat to the 800 regulations could undermine the very purpose of Section 106, but the core statute passed by Congress in 1966 will not be threatened by the Loper decision.
The reality is that Section 106 could face potential changes from any branch of the federal government: Courts could rule against the regulations or the underlying statute, the Executive Branch could change the 800 regulations and Congress could rewrite or even repeal the law itself. ACRA works with its allies in government and the preservation community to make sure that Section 106 and the regulations that implement remain in place and continue enabling the CRM industry to support the goals of economic development and protection of our cultural heritage.