On February 8, 2024, Inside the EPA quoted Fred Wagner on the Supreme Court’s pending decision on the future of the Chevron doctrine. The court’s decision could impact thousands of EPA rules that have relied on the doctrine since it was first articulated in 1984. The High Court’s decision is expected in June.
According to the article, some attorneys believe Superfund and Clean Air Act rules face particular risk, while others say rules under all the major environmental statutes are potentially vulnerable.
"What rules won't be subject to these types of challenges?” Wagner said, referring to potential challenges to new rules.
Inside the EPA said that while many rules may not currently be eligible for retroactive challenges, the high court could soon open the door to such suits. But Wagner said he does not believe long-standing rules are in danger, largely because of stare decisis and statutes of limitations. However, he said, he does expect a major change to Chevron when the court rules and noted that whatever new deference standard the court imposes, “people will take it out for a test drive” to challenge newly promulgated rules.
Wagner said he expects nearly every new rule going forward to be subject to these types of challenges, which is why “people believe, rightly, that this is such an important ruling and a watershed moment in administrative law.”
Wagner compared the looming Chevron holding to the High Court’s 2022 decision in West Virginia v. EPA that prohibited an EPA rule based on the “major questions” doctrine. Since then, courts are “seeing dozens and dozens of challenges” based on major questions, he said.
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