Bill filed to reinstate recently overturned Chevron doctrine

Saying the courts and corporations have hijacked the government, a team of Democrat senators, and one independent, have filed legislation to reinstate the Chevron deference doctrine that was upended last month in a controversial Supreme Court decision.

The Chevron doctrine said that courts should give deference to government agency experts to write rules and regulations to implement laws passed by Congress. It granted federal agencies, such as the Environmental Protection Agency, Federal Drug Administration, and others, leeway to interpret the law when they issued regulations under statutes that are ambiguously written.

SCOTUS overturning of Chevron cited

“The Supreme Court’s overturning of Chevron undermines our government’s ability to promote worker safety, ensure clean air and water, and protect consumers,” co-sponsor Sen. Elizabeth Warren (D-Mass.) said in a statement unveiling the Stop Corporate Capture Act. "Giant corporations are using far-right, unelected judges to hijack our government and undermine the will of Congress,”

Conservatives and corporations have railed against the so-called Chevron Deference since the Court adopted it in a 1984 ruling, saying it granted unelected bureaucrats with too much power.

The landmark case that established the doctrine, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. In this case, the EPA had interpreted the Clean Air Act to allow states to treat all pollution-emitting devices within the same industrial grouping as though they were a single "bubble" or source of pollution. This meant that companies could manage their emissions more flexibly within their plants as long as the total emissions did not exceed certain limits.

Chevron U.S.A., Inc. challenged that interpretation, arguing that the EPA's definition was too lenient and did not adequately protect air quality. The Supreme Court, however, upheld the EPA's interpretation, thus codifying the Chevron Deference doctrine.

'American people pay the price'

“The federal rule making process is how governmental agencies implement and enforce the law,” said Sen. Warren. “Now, industry-backed lobbyists hold more negotiating power in the regulatory process than the general public. They schedule private meetings with regulators, fund sham scientific studies to submit with public comments, and misrepresent the negative impact of stricter regulatory oversight. These actions slow down the enforcement of important regulations, and the American people pay the price.”

It’s unlikely Warren’s initiative, the first action on the issue since the Court ruled last month, will go anywhere as the Republican-controlled House would probably favor the Court’s decision. Rep. Pramila Jayapal, D-Wash., has introduced a similar House measure while the House Administration Committee held a hearing on how lawmakers have to adapt to Chevron’s being overturned when they write new legislation.

The most immediate result of the Chevron repeal will be confusion and litigation, observers say. Businesses will sue to overturn agency rulings they believe are unfair, and consumer and advocacy groups will litigate to protect those rules and block corporate appeals. The actions could slow federal agency decision makings, including environmental actions and even drug approvals.

Joining Warren in backing the Senate bill were Richard Blumenthal (D-Conn.), Cory Booker (D-N.J.), Mazie Hirono (D-Hawaii), Ben Ray Luján (D-N.M.), Edward J. Markey (D-Mass.), Jeff Merkley (D-Ore.), Bernie Sanders (I-Vt.), Chris Van Hollen (D-Md.), Peter Welch (D-Vt.), and Ron Wyden (D-Ore.).

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Doug Bailey is a journalist and freelance writer who lives outside of Boston. He can be reached at [email protected].