The old line that “elections have consequences” has been on full display recently as the ultra-conservative United States Supreme Court issued a series of decisions that may reshape many aspects of Americans’ lives.

With the three Trump-appointed members of the Court (Justices Gorsuch, Cavanaugh, and Barrett) working alongside the three other Republican appointees (Chief Justice Roberts and Justices Thomas and Alito), many planks of the conservative movement’s agenda are being realized.

Two recent decisions with rather innocuous-sounding names – Loper Bright and Corner Post – threaten to undo much of how the federal government works. They call it “dismantling the administrative state.”

Here’s how it works.

Congress passes lots of laws that are vague. Sometimes Congress can’t or won’t do the heavy lifting to make a law clear because that would make it too hard to pass. Other times, a law is vague because Congress knows that it’s not really in the business of sweating the details.

In both instances, federal agencies like the Environmental Protection Agency (EPA), the Federal Aviation Administration, or our favorite – the Bureau of Land Management (BLM), work to fill in the gaps in laws. They do this “gap filling” by writing rules (also known as regulations) after getting input from the public. These rules are critical to making sure we have clean air to breathe and water to drink, to keeping airlines safe and dependable, and more broadly to keeping life in America humming along.

For forty years, the Supreme Court took the path of deferring when agencies filled the gaps to vague laws if those interpretations were deemed “reasonable,” even if a federal judge felt that they would have come up with a better reading of the vague law.

And this made pretty good sense; the Court believed federal agencies and their staff of “experts” had the inside track to understand what Congress intended. Unreasonable interpretations could still be rejected but many regulations survived because of this so-called Chevron deference (the name comes from the 1984 decision that established this procedure).

Because of Chevron deference, expert agencies and their staff were the ones doing the gap filling, not federal judges. In other words, the plan was to defer to people who have expertise in a particular subject matter – think about food safety, or molecular biology – rather than a federal judge who might at best have a passing familiarity with an issue, but not in-depth knowledge.

Many conservative think tanks funded by big business – like the Koch brothers – have long had Chevron deference in their sights as something to overturn. Why?

On the face of it, they wrap themselves in the flag and talk about the Founding Fathers and constitutional separation of powers, but (of course) at the bottom it’s about money and power.

Regulated industries like oil and gas, mining, and big ag and pharma would rather see their handpicked (unelected) judges be the ones who decide whether we’ll have clean air to breathe and water to drink, not the scientists at federal agencies. And who will help judges make those decisions? High-priced law firms and industry-funded expert witnesses.

After years of chipping away at Chevron, this summer the Supreme Court outright kicked it to the curb. In a case called Loper Bright, the Court charted a path forward that puts a lot more power in the hands of federal judges to decide whether an agency’s “gap filling” makes sense. No more deferring to reasonable interpretations; judges will decide in the first instance whether federal regulations rise or fall.

At the end of the day, this isn’t about increasing accountability or making government work better, it’s about the Supreme Court taking power away from expert agencies and claiming it for itself (and the federal courts more broadly).

But there’s more!

The other Supreme Court decision issued this summer that closely interacts with Loper Bright is a case called Corner Post. In it, the Court extended the time that agency regulations can be challenged in court.

It used to be that you had six years from when a regulation was finalized to sue. But in Corner Post the Court said the six-year-clock starts to run when a person or company claims they were injured by the regulation. This is a  radical change and means that someone could sue over a regulation finalized thirty or fifty years ago if they can establish they were injured within the past six years.

Think about a Koch Brothers-funded non-profit created in 2024 with the express goal of overturning a troublesome regulation as a possible plaintiff in a lawsuit. How would a federal court in 2024 determine if the regulation was reasonable? Rather than giving the regulation Chevron deference, the judge will follow Loper Bright and use their own judgment.

It’s a nasty 1-2 punch.

What does all of this mean for our work to protect America’s redrock wilderness?

Generally speaking, Chevron deference hasn’t played an overly large role in determining whether BLM’s regulations are reasonable. That could all change with the agency’s recently released Public Lands Rule, which has already been challenged in three federal courts (Utah, North Dakota, and Wyoming). As a reminder, The Public Lands Rule reiterates that conservation is one of the many uses of our public lands and ensures the BLM is actively managing for it. Stay tuned on that front.

In the meantime, it’s more likely that we’ll see Loper Bright and Corner Post play out in lawsuits over how EPA regulates air and water pollution, or the Food and Drug Administration regulates pesticides. Frankly, things may have to get worse for all of us before there is an overwhelming push to revisit these decisions.

– Steve Bloch, SUWA Legal Director