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- The Loper Bright Decision – What Really Happened to Chevron and What's Next
In the latest episode of Digging Into Land Use Law, Brooke Marcus and Paul Weiland discuss how "Chevron deference" has loomed large over administrative law during the past four decades. The Loper Bright decision overruled Chevron deference, and for those interested in federal administrative law or how this major Supreme Court decision will impact federal environmental and natural resource laws, Brooke and Paul explain the role of Chevron deference pre-Loper Bright, what the Loper Bright decision really did and what that means for federal environmental and natural resource laws going forward.
Transcript: The Loper Bright Decision – What Really Happened to Chevron and What's Next
0:00:03.0 Brooke Marcus: Chevron deference has had a significant presence in administrative law over the last four decades. The Loper Bright decision overruled Chevron deference. For those interested in federal administrative law or are interested in how this major Supreme Court decision will impact federal environmental and natural resource laws, this podcast explains the role of Chevron deference pre-Loper Bright, what the Loper Bright decision really did, and what this may mean for federal environmental and natural resource laws going forward.
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0:00:32.8 Speaker 2: Welcome to Digging Into Land Use Law, Nossaman's podcast covering the development of all things in, on, or above the ground.
0:00:48.5 BM: Hi, everyone. Welcome to Digging Into Land Use Law. I'm Brooke Marcus, a partner in Nossaman's environmental and land use practice group based in the Austin office. My practice focuses on federal natural resource laws and permitting compliance strategies, as well as federal wildlife policy. Today I have with me my colleague, Paul Weiland. Paul, why don't you tell us a little bit about yourself?
0:01:13.1 Paul Weiland: Thanks, Brooke. Yeah, my name is Paul Weiland and I'm a partner in Nossaman's Irvine, California office where I focus on wildlife law, both litigating and transactional. I've been with Nossaman for about 20 years.
0:01:26.7 BM: Thanks, Paul. Today we're going to talk about the Supreme Court's June 28, 2024 Loper Bright Enterprises versus Raimondo decision, which overruled Chevron deference. To give you a little sense of where we're headed, we're going to start by explaining what Chevron deference really is and why it mattered, explain what the Loper Bright decision did, and then talk about some of the legal and practical implications of this decision going forward, particularly with an eye for federal environmental and natural resource laws. So with that, let's talk about Chevron deference and what it is. I feel like there was a lot of news about Chevron deference being overruled, but I think sometimes it's helpful to recall what Chevron deference actually is. Starting there, a brief 101 on administrative law. You have statutes and you have rules. Congress, within their authority, enacts legislation and the statutes, and those statutes can provide authority to agencies to administer certain areas. So I'm going to give a very silly example here. Congress passing a law, enacting a law that agency acts the authority to regulate cookies. That law could be very broadly written or it could be pretty prescriptive. So you could consider a law that says agency X, you have the authority to regulate cookies, and that's all it could really say.
0:02:47.8 BM: It could also say something a little bit more detailed. It could say agency X, you have the authority to regulate cookies and you shall develop a permitting program for cookies. Or a law could say agency X, you have the authority to regulate cookies, you shall develop a permit program to regulate cookies, and that permit program should be sure to determine whether or not there are nuts or chocolate chips in those cookies. And so congress has brought authority and when they're delegating their authority to agencies, how prescriptive they wanna be in the delegation of that authority, and within that authority is where agencies operate. So then an agency says, okay, we've got this authority to regulate cookies, how are we going to do that?
0:03:30.5 BM: And then they promulgate rules and those rules help them interpret their authority for regulating cookies. For example, in that very broad situation, the agency may go a number of different ways because it's pretty broad authority to regulate cookies. On the other hand, where the Congress has said, you're going to regulate cookies and you're going to do it through a permit program and it's going to determine whether or not there's nuts or chocolate chips, and there's a little bit more bounds on what the agency and its rulemaking to regulate cookies may need to look like. And that's where the Chevron deference really tends to live. It lives in this interpretation of what does the statute give the agency the authority to do, and then how does the agency interpret that authority? And so Paul, would you mind telling us a little bit about the Chevron two-step?
0:04:16.3 PW: Sure. Happy to do so, Brooke. The Chevron case is a Supreme Court case that was decided in 1984, and just a little background about the case. The case involves an EPA interpretation of the term stationary source under the Clean Air Act. The issue that EPA faced was how to define this term, and they were choosing essentially between two options. One was to regulate facilities on a smokestack by smokestack basis. Each different source of air emissions would be a source or a stationary source in this case. Another alternative the EPA considered was based on something called the bubble policy, which was the idea of looking at all of the sources of emissions at an entire facility themselves as a single stationary source. And so EPA chose this latter option, and one of the reasons it did so was because by allowing the facility owners to meet their emissions criteria on the basis of the whole facility, they could reduce emissions from the least expensive sources of pollution and offset those with emissions that are from other sources within the facility that would be more difficult to regulate, essentially.
0:05:42.7 PW: And so this was considered an economically efficient approach to regulating. The Natural Resources Defense Council challenged this interpretation by EPA as inconsistent with the statute and was obviously concerned that each individual smokestack or source of emissions should be regulated on an individual basis. And so the matter worked its way up to the Supreme Court, and the court was faced with EPA interpretation of a statutory term that wasn't defined. So the court went through what's called the Chevron two-step, as Brooke alluded to, and the first step was, is the statute clear on its face essentially?
0:06:27.3 PW: If the statute is clear, then there is no gap for the agency to fill or no interpretation that's necessary because the statute is clear on its face. On the other hand, if the statute is ambiguous, you get to Chevron step two and Chevron step two is where the court asks, is the interpretation by the agency essentially non-arbitrary or reasonable? And it's not whether it's the best interpretation, it's whether it's an interpretation that passes a very low threshold, it's a feasible interpretation of the statute or one that, as I said, isn't arbitrary. And to the extent that's the case, the agency interpretation is upheld. And so that's the Chevron two-step. And as I said, it applies specifically in the context of agencies interpreting their statutes through a rulemaking process.
0:07:25.2 BM: Thanks, Paul. And thinking about how this factored into litigation and affected success probabilities, with deference afforded to agencies and their rulemaking, the way I'd always thought about this is that you have a pretty high burden to overcome if you don't like an agency rulemaking. And there is an argument that it was ambiguous, the statutory authority giving the agency the authority to make that rulemaking was ambiguous, that that was a pretty high bar to overcome to demonstrate, to get past Chevron deference to where that rulemaking would be invalidated. Do you agree? Is that how you saw it play out?
0:08:03.8 PW: Yeah, I think that at the time the decision was made, there wasn't a sense that it was a big deal, actually. What came to pass essentially was that the courts were continuously confronted with circumstances where we had broad statutory authorizations. So in the example you gave of the cookie, for example, it would be a broad authorization to regulate cookies rather than highly prescriptive authorizations from Congress. And this was really just a function of the fact that as society has become more complex, regulatory regimes have had to become more complex and Congress is limited in terms of its ability to generate and to articulate all the necessary means of regulating various activities, whether they're environmental or labor or high tech or otherwise. And so Congress has more and more written in a general sense and left to the agencies the details. And as a consequence, the agencies find themselves more and more interpreting those statutes. And so the issue of getting to Chevron step two, where the congressional directive is ambiguous, was much more commonplace than I think the Supreme Court or others anticipated in 1984 and that's why Chevron became such an important construct in administrative law and kind of a bedrock principle in administrative law over the last 40 years, frankly.
0:09:41.6 BM: Yeah, to me that touched on kind of the tension of Chevron deference, versus that agencies may be the best experts at regulating, not Congress, and therefore they should be afforded a certain amount of deference. And then to your point, the vast difference between statutes, particularly older statutes and the level of detail and direction they provide and versus some of the statutes now. But we can talk about that in a bit. I guess now I'm going to put you on the spot here, Paul, would you mind telling us a bit about the Loper Bright decision?
0:10:11.0 PW: So the Loper Bright case decided just this past term involved National Marine Fisheries Service regulation that imposed a fee on fishermen who had observers on their boats. Essentially, under a federal law called Magnuson-Stevens that regulates federal fisheries, there is a program where in order to enforce limitations on fisheries, so how many fish can be caught by a fisherman, observers are placed on the boats with the fishermen in order to observe their practices and ensure they're complying with the requirements under Magnuson-Stevens. And in this circumstance, National Marine Fisheries Service promulgated a regulation that imposed on the actual fishermen the cost of the observer. So this is involving the herring fishery that was at issue in Loper Bright. And herring fishermen had to pay to have observers on their boats. And this obviously ate into their bottom line because it was a cost that was imposed.
0:11:21.6 PW: And a critical fact in the case, for the court anyway, for the Supreme Court, was that under the act, there were certain circumstances where observers had to be paid by fishermen. So for example, on foreign vessels, so non-US vessels, the act made clear itself that observers had to be paid for by the fishermen. But with respect to the herring fishery and domestic fishermen in the United States, the act was silent. And the lower court found that there was ambiguity as a consequence of that silence and therefore deferred to the National Marine Fisheries Service and found that it was reasonable for them to impose this observer fee. The Supreme Court, in overturning the law, found that this distinction was problematic. And one way the court could have gone is to say that the statute was clear and it could have imposed the Chevron two-step, which we've already discussed, and said, oh, at Chevron step one, National Marine Fisheries Service you lose because it is clear that observers are required to be paid for in some circumstances, like on foreign vessels, but not in others, like on domestic vessels and the herring fishery.
0:12:39.7 PW: But the court didn't do that. And I think that that's a consequence of the court's desire to reach and revisit the Chevron test itself. The court instead said, when it comes to interpreting the law, that is the province of the courts. The agencies don't have any special expertise in that area relative to the courts. In fact, the job of the courts is to tell us what the law is, citing a string of Supreme Court cases going back to the 19th century. And so the court revisited and decided that this Chevron two-step should be set aside in its entirety, and that instead the courts were the ultimate arbiters when it came to interpretation of a statute, rather than the agencies having a special expertise that provided them deference, even in situations of ambiguity.
0:13:38.9 BM: Thanks for that, Paul. I guess looking forward, you and I have spoken at length about the implications. Certainly this case, to a certain degree, was anticipated, right? Certain justices had already been signaled that they were skeptical of Chevron deference. The Chevron deference question had been skirted in other cases, but in this one they took it head-on and overruled Chevron deference. So I guess thinking about going forward, the legal and practical implications and when there's challenges to rulemakings, what do we expect a court to do that they're no longer applying Chevron deference?
0:14:16.0 PW: Well, as you said, Brooke, this is one of the issues that we've been going back and forth on. I think that the agencies have already been thinking about the potential demise of Chevron, in part because the court took this case, and in part because in recent years the Supreme Court has shown reticence to rely on Chevron, even though it was its own prior decision. And under stare decisis, the court typically does rely on its own prior decisions and give them deference. The court had moved away from that. So I think what we're likely to see with the agencies is an effort to build the case for their interpretation in other ways, ultimately trying to justify their interpretation as a defensible and the most appropriate interpretation of the act when they're interpreting a statute.
0:15:13.8 PW: I would say also, and this is something we've discussed, that the agencies may not see the value in rulemaking as a tool because it's costly and time-consuming and requires an opportunity for notice and comment to the public, which takes time and requires responding to the range of comments that the agency receives from the public. So there may be less incentive to go through this process in certain circumstances as well, because at the end of the day, the agency doesn't benefit from the deference it previously did when it went through it. I guess I'd say to you, Brooke, I don't know what your thoughts are about the proclivities of agencies to do this versus to use other tools available to implement policy.
0:16:05.7 BM: I agree with you. Commonly, rulemakings have been preferred because they're more durable. They're harder to unwind. You have to go through the proposed rule, comment period, final rule, and to unwind it, you have to go through proposed unwind, comment period, final unwind. And so for many reasons, the rulemaking process was desirable for the regulated community because it provided some amount of certainty and predictability in the long term, particularly when you had Chevron deference because there was also an expectation that the agency would be afforded a certain amount of deference if and when that rule was ever challenged, if there was an ambiguity that received Chevron deference.
0:16:45.8 BM: Now, I think with the specter of potential litigation without deference and really not knowing how courts are going to rule post-Loper Bright, I think there probably is a chilling effect on rulemaking and potentially more increased focus on things that you named, guidance policies, instructional manuals, those sorts of things, rather than going through the rulemaking process because it just doesn't provide that level of certainty and durability, or at least we don't know if it will until we see how courts start to interpret that Loper Bright decision.
0:17:22.0 BM: The other thing that I keep coming back to is the level of prescriptiveness in the statutes and thinking about in the environmental and natural resource space, how the older statutes don't provide as much direction to the agencies as the newer statutes. And I think something that you saw in the Loper Bright decision was a big focus on first looking where there's questions of law with respect to the interpretation of the statute in a rulemaking, first looking to whether or not that agency was acting within its authority. And so you think of some of the older statutes that we work with, the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, those are older statutes that have more of that broad, less detailed authorization to the agencies than some of the newer statutes.
0:18:07.4 BM: Even the Endangered Species Act, which is getting a bit long in the tooth, but still quite a bit younger than MBTA and the Eagle Act, there even the Section 10 permitting process, for instance, is fairly prescriptive in what a permit program should look like under Section 10. And so, it'll be interesting to see, for me, how the courts will look at that statutory authority and how narrowly or how broadly they draw that when they're evaluating these challenges to rulemaking so I think that remains to be seen. In my opinion, you may have thoughts otherwise.
0:18:38.3 PW: Yeah. I think that part of the signal that the court has given to in Loper Bright and we saw this in particular in a concurrence by Justice Gorsuch, who talked about separation of powers issues, is that there should be respect for the differentiation between the legislative functions that Congress should be serving in the executive functions, that the executive branch should be serving. And we may see more of that from the Supreme Court over time. And one of the interesting dynamics that that creates is that it suggests that Congress needs to step in and on a more regular basis, reauthorize the major environmental statutes and other statutes and be more specific when it's doing so that just runs head up against the challenges that Congress has had in acting statutory re-authorizations.
0:19:37.1 PW: I think it was contemplated in the '70s that when many of the major federal environmental statutes were enacted, that re-authorizations would occur routinely on like a five-year cycle, and with some of those statutory schemes like the Clean Air Act and Clean Water Act, they did in the early years of the implementation of those statutes, but over time, it's been more and more difficult for Congress to legislate essentially. And as you suggested, some of the statutes like the MBTA have not been subject to any meaningful reassessment by Congress in more than a century, and even the Endangered Species Act, which is more recent, has really only been subject to very modest tweaks since the 1982 amendments, which I think were the most recent, more comprehensive amendments to the statute.
0:20:31.4 PW: While the Supreme Court may be looking to Congress to step into a greater extent, we certainly don't see evidence that Congress is necessarily likely to become more functional and able to do that, and so I'm not sure where that sleeve leaves us, but I think that leaves the courts in an ongoing role of playing arbiter, and we might talk a little bit about how the deck is stacked otherwise, because many of the issues that arise don't involve interpretation of statutes and rule-making. And so, I don't know, Brooke, maybe you'd like to talk about some of the other aspects of deference that we see and whether those may change.
0:21:18.5 BM: Yeah, that was exactly where I was thinking as well. Paul, you and I have talked about facts, right? And Loper Bright there is a focus on the statutory authority granted to the agency, and that questions of law are in the purview of the courts and that the agencies are not necessarily entitled to the level of deference they were receiving previously. But when you think about how many agency actions involve factual determinations that aren't necessarily rule-makings of authority under a statute, but are really factual determinations within their purview. I think that is something that's lost and some of the discussions about Loper Bright is that there still is a certain amount of deference afforded agencies when it comes to highly factual, highly technical determinations made by that agency. And I know you've been looking at some of those cases in that line of cases, I know particularly you've been focused on some recent case law there may I burden you with elaborating there too.
0:22:17.6 PW: Happy to do so. There's a line of cases that really starts, in my view with the Baltimore Gas and Electric case, which is a Supreme Court case from the '70s involving a National Environmental Policy Act, and that issue in that case was a Nuclear Regulatory Commission's interpretation of authority to regulate material that was highly technical in nature essentially. And the court found that the agency was acting within an area of specialized expertise, and that in such circumstances it's appropriate for the court to show extreme deference to the agencies. And that line of cases as you suggest, deals with issues of fact or agencies within the agencies expertise as opposed to interpretation of statutes, which is dealt with in the Chevron and Loper Bright line of cases.
0:23:11.5 PW: Just this past summer, the United States Court of Appeals for the DC Circuit, which is the Court of Appeals in Washington, DC that handles many of the challenges to regulatory actions by agencies issued a decision in a DPA case, in which the dispute with respect to the agencies authority to regulate, and the court reaffirmed that line of cases, the Baltimore Gas and Electric line of cases that in its area of technical expertise, agencies are entitled to extreme deference. And as you also allude to, many of the cases that come before the court don't involve agency interpretation of statutes and rules, but involve actual actions that are taken, for example, on a permit application for a grant of a right of way and in those factual circumstances, Chevron doesn't apply, and instead the agency is acting on a case-by-case basis, and in those circumstances, the agencies have the benefits of essentially multiple layers of deference.
0:24:29.0 PW: One of them starts with the Administrative Procedure Act itself, which is the Act that governs administrative agency actions and the review of those actions by the courts, which says that agency actions are subject to being set aside or overturned if they're arbitrary or capricious. That's a relatively low standard. The agency doesn't... Action doesn't have to be the best action that the agency can take, it just has to be non-arbitrary and non-capricious, and so the courts in interpreting that provision, which is directly from Congress already have a certain degree of deference that they're affording to the agencies. And in the context of the Baltimore Gas and Electric line of cases, with respect to technical issues, they are as well affording deference to agencies, and so deference is not going away as a consequence of the Loper Bright case, except for in a certain set of circumstances.
0:25:32.7 BM: Thanks, Paul. You're talking about the line of cases with respect to highly detailed technical determinations. Reminds me that it's important to think about Loper Bright in the greater context of a number of different impactful decisions that have come out over the last few Supreme Court terms. You had West Virginia, the EPA, which looked at the major questions doctrine, whether or not agencies were making determinations of significant political and economic significance that was really out of their purview. You have Corner Posts adjust the common understanding of how long a plaintiff may challenge a rulemaking under the Administrative Procedure Act, changing that to time of injury versus time of the completion of the rulemaking. You have OHIO v. EPA, talking about the agencies duties to respond to public comments as part of its charge and whether a rule making is proper. You have the Huntsman case from the DC Circuit that you just mentioned. You have Loper Bright.
0:26:30.1 BM: I think the interesting thing to me is that several of these cases either introduced or reinvigorate new concepts or kinda reset the game board a bit, so Loper Bright, if you wipe out Chevron deference, what do you have now? I think seeing how all of these cases fit together and how folks use them in the context of litigation and then how courts rule based on these cases, looking at them all together is going to be very interesting over the next few years. I think Loper Bright's one thing, but I think there's a number of holdings that have happened in the last few years that all together create kind of a new fabric with which they're going to see court decisions, interpreting administrative laws and agency rule makings and agency actions and all sorts of things that's going to look a bit different than it has in the past. I guess that being said, you and I have talked, and I think both of us are on the same page that the Loper Bright decision was certainly impactful, but the sky is not necessarily falling. Do you mind elaborating, I guess, where you fall on that, so that I'm not speaking for you.
0:27:39.1 PW: Yeah, happy to do so. I think in terms of whether the sky is falling, it's certainly premature to make a prediction, as I alluded to. I think when the Chevron case came out, it did not receive attention as a watershed moment in administrative law until the years that followed, and it wasn't clear I don't think even to the Supreme Court itself, how frequently it would be relied upon by federal court for viewing agency actions, and so with respect to the Loper Bright case, I think it's more judicious to take a wait and see approach than to presume that the sky has fallen. For starters, I think the agencies are fairly savvy and we'll try to go about continuing to do their business as they're supposed to in carrying out the laws, they will be marshaling on what arguments they can to support their actions and aware of the limitations that the statutes impose on them and doing their best to avoid being in a situation where they're stretching, as arguably, I think the National Marine and Fisheries Service was in the Loper Bright case.
0:28:57.8 PW: I also think that the courts may take a somewhat cautious approach to applying Loper Bright and not throw out the baby with a bath water, be aware of some of the other sources of deference that we've already talked about. And I think that there will be an expectation and this is a case, not just from any single community, and this is one of the other things that we might talk about, certainly deference to agency actions is as important to the business community in many situations as it is to various advocacy groups, such as environmental groups or voting rights groups or civil rights groups, because the business community relies on a stable regulatory environment. And you might talk a little bit about from a permitting perspective, whether Chevron is a cause of concern to clients or they see it as a opportunity?
0:30:04.7 BM: Yeah, it's a good question. I alluded to this a little bit earlier, that the regulated community generally values durability and predictability, and my practice focuses on large energy infrastructure typically, which has long development times, the permits take several years and having certainty in what permit process is going to be applied is crucial. That's crucial to understanding how much time you need to obtain a permit, what sorts of rules and requirements you're going to be held to for a project design in terms of feminization measures, those sorts of things, but also cost modeling, what sorts of requirements that have a cost attached to them are going to be required and what might those costs look like for purposes of financial models and whatnot. And so I think there's a lot of value in having stable rulemaking, stable permit regimes that stay in place and aren't constantly at risk of being withdrawn or over-turned in court. I think there's a lot of talk about, oh, if you don't like a rule now there's an easier way to challenge it because you won't necessarily have shot on deference, but I think there's a lot of value in having stability across rule makings. And to your point, you spoke of courts being cautious and they applying Loper Bright, even if Chevron deference has gone away, it would not surprise me if we start to see courts find another way to defer to the agencies without calling it Chevron deference.
0:31:40.5 BM: On the agency side, Post-Sackett which overruled the significant nexus test and determining whether or not something was jurisdictional under the Clean Water Act, even those significant nexus test no longer exists. You see the agency in that case still applying the significant nexus test just not necessarily calling it the significant nexus test when determining whether or not a water is jurisdictional. Similarly on the court side, I think it would not surprise me if you found courts providing deference agencies but not necessarily calling it Chevron deference, and I think we've already seen a little bit of that. And I think we've seen it back to your point about agencies being very deft at these rule-makings, you'll see them stack their preambles with legal justifications that aren't... Hoping that Chevron deference still exists, they're carefully lining out the legal justification for why they have the authority to do what they're doing and why it's supported by the record and what they're doing, so I think there's already been an anticipation of that Chevron deference potentially being overruled actions by the agencies to shore up the rule-makings to try to avoid the instability that could occur, in the event Chevron deference went away like it did.
0:32:55.2 PW: If we think about the business community wanting a stable regulatory environment and the environmental community being concerned about the overturning of Chevron and Loper Bright. Do you wanna talk a little bit about who might like to see the Loper Bright outcome and why?
0:33:17.3 BM: The regulated community likes a stable permitting regime when they need to rely on that permitting regime, it's a workable permitting regime and it's something they can rely. And again, financial modeling, project design, long-term planning, that sort of thing. Similarly, the environmental community loves environmental rules that they feel are sufficiently protective of the resources they're protecting, and so they wanna see stability there, they don't want Chevron deference to go away where the agency is protecting a resource that's of importance to them. I think both of those parties feel differently when it's not that way, so for instance, when the environmental community sees a rule-making that they don't think is sufficiently protective of a resource, then Loper Bright is great because they have a better shot at having that rule invalidated.
0:34:08.1 BM: Similarly, if the regulated community feels that an agency is over-reaching in terms of the prescriptiveness of a regulation, the burdens required to obtain a permit, for instance, in that instance, the regulated community is going to like Loper Bright because it perhaps gives them a better shot at overturning that rule making without Chevron deference. And so, I think the same party is that enjoy Loper Bright also, depending on what the rule-making is doing, will come out the exact opposite way. I just think it has the opportunity work for and against the regulated community, the environmental community, just depending on the circumstances.
0:34:48.8 PW: Yeah, I agree. I think that both face risks associated with the Loper Bright decision, but also opportunities depending on their posture in a specific case, but it's my sense that the risk may outweigh the benefits. I would say there's a kind of a third group that is a group of kind of persistent cheerleaders, I would say For Loper Bright and those are folks that just feel as a general proposition that the federal government is too big. And so, if you feel that the agencies have too much authority and excise too much control over people's lives and businesses activities, then Loper Bright can be seen as part of the group of changes that folks have advocated that would like to see a smaller, what's called a smaller administrative state overall, really a smaller executive branch ultimately of the Federal Government overall. And I think that some of the other cases you alluded to, like the West Virginia case and Corner Posts are seen as contributing with Loper Bright to that end. So that's the group that I really think is probably most consistently pleased because for them, they don't have the downside risk that businesses and advocacy groups have who actually use and depend on federal statutes and federal regulations.
0:36:26.7 BM: Yeah, I agree wholeheartedly and hope that that group never needs to seek a permit based on a reliable permit program.
0:36:36.1 PW: You mentioned the Sackett case. Do you wanna talk a little bit about the underlying regulatory program that the Army Corp of Engineers administers under the Clean Water Act, that was an issue in the case, Brooke?
0:36:47.8 BM: Sure, so Clean Water Act, Section 404, and actually Section 402 regulate Waters of the United States, also known as WODIS for short. What constitutes a WODIS has been the subject of much higher and dispute. It remains and flux to a certain degree, the last year's Sackett case arguably resolved some of that back and forth. Essentially, the EPA and the Army Corp of Engineers both administer the Clean Water Act. They've done several rule-makings trying to define what constitutes a WODIS, those rule makings have been withdrawn, revised, challenged throughout the years, throughout changes in administration. And last year, the Supreme Court heard a case that put squarely to the Supreme Court, what's the appropriate test for determining whether or not something is a WODIS.
0:37:43.7 BM: Based on a 2008 Supreme Court case, the operative tests that have been used, were whether there is a continuous surface connection to a traditionally navigable water or if there was a significant nexus to a traditionally navigable water. And then determining what continuous surface connection and determining what a significant nexus is became something that was very fact-specific based on the features that you may have within an area, different districts would apply those tests different ways, but before the Supreme Court was whether or not those tests were appropriate for determining whether or not there was a WODIS, and what the Supreme Court said is that significant nexus is not an appropriate test for determining a WODIS, essentially cutting off the significant nexus arm of assessment when determining whether or not a water feature is a WODIS.
0:38:35.9 BM: With that became a revision to the rule that was defining WODIS to no longer refer to significant nexus. But there's still a number of fact questions that remain when someone has a water feature, they take that to the Army Corp of Engineers. They say, "Here are the water features within our project area. Here's what we think is a WODIS, here is what we think is not. Do you agree, Army Corp of Engineers? And do you agree process can go to couple of different ways?" But that's essentially where it goes. And what we're finding is that even in a post-Sackett, no more significant nexus world, the Army Corp of Engineers in some cases, is still finding a feature to be a WODIS based on something that's akin to significant nexus just not called significant nexus. So again, thinking of that and how the courts may apply deference without calling it Chevron deference, it similarly would not surprise me that if there are challenges to certain rule-makings where a court feels the agency should receive deference, they may apply something akin to Chevron deference without calling it Chevron deference.
0:39:41.9 PW: Thanks, Brooke. That's a pretty complicated regulatory program, when you say water features, I'm thinking about koi ponds and fountains, or is there something different you have in mind?
0:39:53.2 BM: Streams, creeks, wet areas next to streams and creek, the desert that may get water a few months out of the year, depressions, all sorts of different things come into question when folks are trying to determine whether or not something is really a WODIS. And really the tension there goes back to the question of what does the federal government really have jurisdiction over? Is there really an inter-state network here where water within a project site has enough of a connection to a water of that crosses state lines to really make it appropriate for the federal government to assert jurisdiction over it?
0:40:32.1 PW: Yeah, that's helpful. Out here in California, there are a lot of dry washes that are mostly dry most of the time, but do have running water part of the time, and I know there has been a tension about whether those are, as you say, WODIS under the act, and how do we interpret what Congress was intending to do when it enacted the Clean Water Act in terms of the scope of regulation, but it sounds like those debates will continue.
0:41:02.5 BM: Yeah, I agree. I think it's going to be similar to how we're waiting to see how courts and various agencies respond to Loper Bright. I think in the context of Clean Water Act over the past year or so since the decision, there's still a lot of uncertainty and remains to be seen with how WODIS are going to be determined in light of that Sockett decision.
0:41:25.7 PW: All right, well, we've covered a lot of ground here, today, starting with the Chevron decision from the Supreme Court in 1984 and the Loper Bright decision justice past summer, and also some other topics in environmental law. And I hope you found this informative and it's been a joy to talk with you Brooke as always.
0:41:46.6 BM: Thanks, Paul. Thank you to our listeners for joining us for this episode of Digging Into Land Use Law. For additional information on this topic or other environmental land use matters, please visit our website at nossaman.com. And don't forget to subscribe to Digging Into Land Use Law wherever you listen to podcast so you don't miss an episode. Until next time.
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0:42:11.0 S2: Digging Into Land Use Law is presented by Nossaman LLP, and cannot be copied or re-broadcast without consent. Content reflects the personal views and opinions of the participants. The information provided in this podcast is for informational purposes only, is not intended as legal advice and does not create an attorney client relationship. Listeners should not act solely upon this information without seeking professional legal counsel.