Supreme Court’s Chevron ruling could bring changes for tribes
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By Mary Annette Pember | ICT
In a flurry of opinions, the U.S. Supreme Court dealt significant blows to federal agencies' power to enforce regulations and opened the door to broad new challenges to rules long after they’ve taken effect.
The court’s decision to overturn a 1984 decision known as the Chevron deference, however, may be of greatest concern to tribes.
The court’s opinion delivers a far-reaching and potentially lucrative victory to business interests and means that the federal government could have a harder time defending its regulations.
And though the fall-out for Indian Country is still unclear, the decision could bolster challenges to tribes setting their own air and water quality standards approved by the Environmental Protection Agency, or to regulations involving toxic contamination or public health.
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“This may come into play when partner federal agencies like the EPA make a decision on tribal nation water-quality issues which were previously upheld under the Chevron deference standard,” said Angelique EagleWoman, professor and director of the Native American Law and Sovereignty Institute at Mitchell Hamline School of Law. Eaglewoman is a citizen of Sisseton-Wahpeton Dakota Oyate.
The Chevron deference had made it easier for the federal government to regulate the environment, public health, workplace safety and consumer protections by allowing federal agencies to fill in details and enact regulations when laws weren’t crystal clear.
Opponents had argued that the deference gave power to government experts when it should be wielded by judges.
The impact on the Department of the Interior, however, an agency frequently involved with tribal legal issues, would be relatively small, according to Matthew Fletcher, law professor at University of Michigan Law School and author of Turtle Talk blog. Fletcher is a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians.
“Chevron was originally a sharp cutting tool that the Department of the Interior never really benefited from, except when it was deciding matters against tribal interests,” Fletcher wrote in an email to ICT. “The end of Chevron means relatively little.”
‘Less regulation’
The Supreme Court’s decision to overturn the Chevron ruling means a system known as the Skidmore deference will once again be the standard, limiting federal agencies interpretations of statutes, EagleWoman said.
“Skidmore is a lesser standard,” EagleWoman said in an interview with ICT. “If a federal judge is persuaded that the federal agency made a good determination, then they will go along with the agency, but it gives much more leeway and discretion to the judge.”
The decisions already had varied based on which appeals court they landed in, Fletcher said.
“In the [Washington], D.C., and Tenth Circuit, the courts’ precedents allowed the Indian canons to trump Chevron, but in the Ninth Circuit (where most of the Indian court cases are heard) the Indian canon gave way to Chevron,” Fletcher said.
“I guess now that Chevron’s gone, the Indian canons can elevate in the Ninth Circuit,” he said.
The Canons of Construction in federal Indian law have long been recognized as foundational.
According to Meredith Harris in the American Indian Law Journal, “these Canons require that (1) treaties be interpreted as the Indians could have understood them; (2) treaties are liberally construed in favor of the Indians with all ambiguities resolved in their favor; and (3) abrogation of tribal sovereignty or property rights be expressed by Congress clearly and unambiguously.”
Fletcher cautioned, however, that the long-term viability of the Indian Canons is not great.
“The same justices who railed against Chevron tend to rail against Canons which derive from the separation of powers between federal branches of government where Chevron originated,” he said.
The canons, he explained, “recognize a limited deferential role in the Supreme Court to which those who struck down Chevron object.”
EagleWoman agreed.
“What we keep seeing is the U.S. Supreme Court leaning towards less regulation and less respect for science, technical determinations and expertise,” she said. “This (overturning Chevron) could potentially have a chilling effect on decision-making by federal agencies than we’ve seen in the past.”
She described the court’s decision as short-sighted.
“The striking down of Chevron deference will result in federal judges having more discretion when they often have little understanding of the trust relationship,” she said.
Reviewing options
Time will tell, however, regarding the impact of the ruling on Indian Country, and a number of organizations declined to discuss the impact with ICT.
Overturning Chevron could potentially work in favor, for example, of a lawsuit brought by a coalition of local and regional governments, tribal governments and Native corporations to overturn new environmental protections in the National Petroleum Reserve in Alaska.
The Alaskan Beacon reported about a suit filed by the VOICE of Arctic Iñupiat organization against the Department of the Interior and the Bureau of Land Management in which plaintiffs claim that the Interior rule limits oil development and “turns vast swaths of the National Petroleum Reserve in Alaska into a defacto conservation system unit.”
The outcome of the case, according to Fletcher, will strongly depend on the political commitments of the judges assigned.
EagleWoman characterized the argument in the Alaska lawsuit as focused more on process than interpretation, but added, “Many times attorneys will bring everything they can think of to a case.”
VOICE attorneys said the case will likely help the organization's case.
“VOICE and our individual members are unanimous in objecting to BLM’s unlawful attempt to convert the [National Petroleum Reserve] into a wilderness preserve, wholly ignoring the people that live there and that Congress created the NPR-A for the sole purpose of fostering responsible resource development," the organization said in a statement.
"The Loper Bright ruling overturning Chevron, which came out the same day VOICE filed our suit, only strengthens VOICE’s case.”
‘Tsunami of lawsuits’
The court’s opinion could ultimately set back efforts to reduce air and water pollution, restrict toxic chemicals or even take on new public health threats like COVID-19, environmental and public health advocates said.
The Chevron decision “takes more tools out of the toolbox of federal regulators,” according to Cara Horowitz, an environmental law professor and executive director of the Emmett Institute on Climate Change and the Environment at UCLA School of Law.
Horowitz called the ruling “yet another blow to the EPA’s ability to tackle emerging problems like climate change.”
Vickie Patton, general counsel for the Environmental Defense Fund, said, “It undermines vital protections for the American people at the behest of powerful polluters.″
Politicians in Wyoming celebrated the decision, where the state has several active cases in court against federal agencies, according to WyFile.
About 68 percent of Wyoming’s mineral estate is managed by the federal government, wrote journalists Mike Koshmrl and Dustin Bleizeffer.
But the ruling doesn’t necessarily hand Wyoming — or any other entity that challenges agency decisions — a clear path to victory,
“I think (courts are) going to struggle with it, because they don’t have subject matter expertise in these very intricate, technical aspects of everyday life of an agency,” Shannon Anderson, attorney with the Powder River Basin Resource Council advocacy group told reporters.
In related rulings, the Supreme Court also found in favor of a North Dakota truck stop that wants to sue over a regulation on debit card swipe fees. The court overturned a federal law setting a six-year deadline for challenges to regulations.
The court also stripped the Securities and Exchange Commission of a major tool to fight securities fraud. In a 6-3 votes, the justices ruled that people accused of fraud by the SEC, which regulates securities markets, have the right to a jury trial in federal court.
The court said that the in-house proceedings used by the SEC violate the constitution.
In a dissent joined by her more-liberal colleagues, Justice Ketanji Brown Jackson wrote of the impact that the recent decisions could have on government regulation. The Chevron ruling came in a case known as Loper Bright Enterprises v. Raimondo, which challenged a rule established for fishing companies by the National Marine Fisheries Service.
“The tsunami of lawsuits against agencies that the Court’s holdings in this [SEC] case and Loper Bright, have authorized,” she wrote, “has the potential to devastate the functioning of the Federal Government.”
The story has been updated to include a comment from VOICE of the Arctic Iñupiat.
The Associated Press contributed to this report.