Some states did it through court rulings. Others, through legislative command. In one state, voters elected to do it by changing their Constitution.
Conservative groups say that efforts by about a dozen states to scale back agency deference within their own borders could be a harbinger of what’s to come at the federal level as the U.S. Supreme Court approaches oral arguments next year in a set of cases that have the potential to end the nearly 40-year-old Chevron doctrine.
At the very least, they say, the state actions show that ending courts’ long-standing practice of yielding to administrative agencies when the law is unclear doesn’t have to spell doom for the environment.
“We now have a pretty long track record,” said Jon Riches, vice president for litigation at the Goldwater Institute, a libertarian think tank that in 2018 helped Arizona become the first state to eliminate Chevron through legislation. “The sky has not fallen as supporters of deference have argued it would.”
In the five years since Arizona legislated away its deference standard, Tennessee has followed suit, enacting a law in 2022 that requires courts to review state rules without giving special weight to the position of the regulating agency. Florida voters took it a step further, approving a constitutional amendment in 2018 that prohibited judges from deferring to state agencies.
A larger number of states have used judicial action to end Chevron deference within their borders.
Delaware was the first to do so in 1999, followed by Michigan in 2008. But anti-Chevron sentiments in state supreme courts and legislatures have largely taken off in the last 10 years, around the same time that the doctrine — which had long been favored by even Republican-appointed jurists — became a target for conservative interests.
“It was only in the Obama administration — well, a little in the Clinton administration — that conservatives decided it was a bad thing to let political branches do political things,” said David Doniger, senior strategic director at the Natural Resources Defense Council and the attorney who presented the losing argument in the 1984 Supreme Court case that birthed the Chevron doctrine.
Doniger and his NRDC colleague Ian Fein have urged the justices in the upcoming case Loper Bright Enterprises v. Raimondo to uphold their loss and keep the agency deference doctrine on the books.
The justices will hear Loper Bright next year, alongside a companion case, Relentless v. Commerce. Challengers in both cases have asked the high court to overturn rulings that upheld, on Chevron grounds, NOAA Fisheries monitoring rules for herring vessels.
Doniger said that decisions by states to move power away from their agencies should not spur similar action by the Supreme Court in Loper Bright and Relentless.
“The position of a few state courts on the interpretive method they use in their own state courts has limited relevance to how judicial review of federal regulations in federal courts should work,” said Doniger.
By statute or by court
In states like Arizona that have modeled their regulatory statutes after federal law, legislators can codify changes to their approach on agency deference.
Arizona lawmakers in 2018 eliminated the equivalent of the Chevron doctrine in their state by adding a sentence to the Arizona Administrative Procedure Act, which governs how agencies make rules — and how courts review them.
The statute now says that courts should review litigation on state regulation “without deference to any previous determination that may have been made on the question by the agency.”
Attempts to end the federal Chevron doctrine have found some traction in the House but are unlikely to advance before the majority-Democratic Senate and President Joe Biden’s White House.
Chevron foes see the Supreme Court, which now has a 6-3 conservative supermajority, as their best bet for ending the doctrine at the federal level. If the justices agree to do so, they would be following in the footsteps of a smattering of state courts.
Ohio in late 2022 became the latest state to break away from Chevron, with state Supreme Court Justice Pat DeWine writing in a case about engineering certification rules that “it is the role of the judiciary, not administrative agencies, to make the ultimate determination about what the law means.”
He continued: “Thus, the judicial branch is never required to defer to an agency's interpretation of the law.”
Chevron’s future in the states
If the Supreme Court eliminates the Chevron doctrine, that doesn’t mean states must do the same.
Just as some states have chosen to end agency deference while it remains in place at the federal level, states could similarly opt to keep Chevron on the books if conservative challengers win in Loper Bright and Relentless.
“There hasn’t been the phenomenon of lockstepping on this issue with what the federal judiciary does,” said Martha Kinsella, senior counsel at the Brennan Center for Justice.
She noted that although some states are moving away from Chevron, the majority of states still have an appreciable level of deference for agency action. A decision by a state to steer away from Chevron does not necessarily eliminate other versions of deference, and it does not mean that agencies always lose in regulatory cases.
Kinsella said it’s too soon to tell what effect eliminating deference has had in the states, since most have only taken that step in the last few years.
Riches of the Goldwater Institute said that although the Supreme Court’s rulings in Loper Bright and Relentless wouldn’t dictate states’ action on Chevron, a decision to get rid of the federal doctrine could eventually inform decisionmaking by state courts.
That’s what happened when Chevron was decided in 1984, he said. Many state courts simply saw what the federal judiciary had done, and over time, they decided to adopt the approach for themselves.
If the Supreme Court discards the Chevron doctrine next year, Riches said, “maybe the opposite would happen.”
'Constitutional hygiene’
In the nearly 40 years since the Supreme Court decided Chevron, conservative jurists have gone from seeing the doctrine as a key check against judicial activism to viewing it as a weapon to empower federal agencies — like EPA — that are further removed from voters.
The doctrine says that courts should generally defer to agencies’ interpretations of their regulatory power under federal laws — such as the Clean Air Act — when the language in those statutes is unclear. For decades, federal agencies used Chevron to defend their rules and rollbacks against legal attack.
But criticisms of the doctrine mounted in the years after the Obama administration tried to find new statutory authority to address critical issues like climate change.
Former President Donald Trump — with the backing of the Federalist Society — later filled federal courts with conservative judges who are vocal Chevron critics.
One of Trump’s Supreme Court picks, Justice Neil Gorsuch, has called on his colleagues to stamp out the doctrine once and for all, rather than continuing their yearslong practice of never addressing Chevron and letting it die a slow, silent death.
Ending the doctrine at the federal level would be a form of “constitutional hygiene,” said John Vecchione, senior litigation counsel for the New Civil Liberties Alliance, who is representing herring vessels in Relentless.
Vecchione and others have said that overturning Chevron would force administrative agencies to regulate in ways that are more clearly within the bounds of what Congress — the branch of government most closely tied to the voters — has authorized them to do.
“I have seen no evidence that the air and water and wildlife can’t all be preserved while also preserving the independence of the judiciary,” he said.
But Chevron’s proponents have pointed back to the positions of the doctrine’s early supporters — like the late conservative Justice Antonin Scalia — that deference protects expert agencies from the whims of nonelected judges serving lifetime appointments.
The doctrine has also been used in rulings against liberal and environmental interests.
“Chevron v. NRDC is Exhibit A of this,” said Fein, senior counsel at NRDC.
Getting rid of agency deference in states with elected judges, on the other hand, is a different proposition because it fulfills Chevron critics’ stated goal of keeping power closer to the voters, said Renée Landers, a law professor at Suffolk University.
“Why is it better for [federal judges] to be deciding complex issues of regulatory policy instead of the agency to which Congress has delegated much of the power?” she asked.
Landers pointed to a recent ruling by a judge in Texas that blocked access to abortion pills, despite years of Food and Drug Administration approval and research, as one example of the dangers of shifting power from agencies to the courts at the federal level.
“We’re going to have random judges — or one judge in a federal district court in Texas — exercising the control,” said Landers.
