The Supreme Court in June gave Wyoming’s many heavily regulated industries an escape valve from the onslaught of federal regulations under the Biden administration crippling their ability to do business and even exist.
Many Wyoming elected officials praised the decision as a rebuke to a bloated federal administrative state and the means to return to the U.S. Constitution’s separation of powers. But whether it will stop Washington overreach is dubious.
The 6-3 decision in Loper Bright Enterprises v. Raimondo ended what became known as “Chevron deference.”
Under that doctrine, courts were required to give agencies the benefit of the doubt in their policy interpretations when terms in a law were vague and the agency reading seemed reasonable. In overturning the precedent, the Supreme Court said judges are the ones to properly determine if something is legal – not agencies.
Since the Chevron doctrine’s birth in 1984, Democrat administrations used it as a carte blanche to legislate from the executive branch. Republicans would often roll back regulations, creating a regulatory see saw for industry.
This April the Biden administration inundated the federal register with 66 new significant regulations – more than any since the Reagan administration. (Timing was key as regulators wanted to prevent a potential Trump administration from overturning those rules finalized close to the end of the term from being overturned by the Congressional Review Act.)
Significantly for Wyoming, they included a Bureau of Land Management (BLM) land use change making conservation and reclamation on par with grazing, energy and mineral extraction, meaning leases for ranchers, energy companies and mines will be reduced in coming years.
And in May the BLM proposed banning coal leasing across the Powder River Basin in Wyoming and Montana, the biggest coal producing region in the nation.
Jim Magagna, the executive vice president of the Wyoming Stock Growers Association, said the “flip-flop between different administrations is not good for natural resources management.”
He is optimistic that the Chevron decision will prompt federal agencies to be more careful in writing policy because they can be more easily overturned by the courts and compel Congress to be more precise in writing laws so that agencies have less ability to misinterpret them.
It’s definitely given those hurt by the new regulations a greater ability to sue.
Last week 12 plaintiffs, including The Wyoming Farm Bureau Federation and Natrona County Farm and Ranch Bureau, sued the Department of the Interior and the BLM in federal court in Wyoming to overturn the land use rule change.
It argues that “the new rule must be set aside because it “interprets the word use in FLPMA (Federal Land Policy and Management Act of 1976) to include non-use; it arrogates to BLM power to set aside land for conservation, which Congress has reserved to itself or elsewhere has granted in tightly limited circumstances; and it authorizes overarching land-use planning determinations-ones that prioritize conservation through mitigation and restoration leases and ‘areas of critical environmental concern’ (ACES)-without the public involvement that FLPMA expressly requires.”
Magagna, whose organization is an affiliate of the National Cattlemen’s Beef Association –one of the plaintiffs, said the Chevron decision was a factor in deciding to file the lawsuit.
He said Chevron also opens up the possibility to file lawsuits over the BLM’s Powder River Basin changes and March 2024 proposals surrounding sage grouse habitat management.
Paul Larkin, a legal scholar at the conservative Heritage Foundation in Washington, D.C., said he thinks members of Congress will continue to write vague laws because they have every incentive to do so.
“Politicians want to be liked,” he said. Deferring to the agencies gives them the ability to either praise their own lawmaking or blame agencies for their misreading of laws when speaking with constituents. Changing how they write laws would be “like trying to get water to run uphill.”
The same goes for the federal agencies run by ambitious political appointees who want to be promoted and will find all means possible to achieve their goals, he said.
Gina McCarthy, who served as Environmental Protection Agency Administrator under President Obama, is a case in point. She said in 2015 that she would get her way regardless of how the Supreme Court ruled against her agency regarding the Mercury and Air Toxics Standard.
“This is a rule that actually regulates toxic pollution emissions from primarily coal facilities, and we think we’re going to win because we did a great job on it…But even if we don’t, it was three years ago. Most of them are already in compliance, investments have been made, and we’ll catch up.”
Michael Pearlman, Gov. Mark Gordon’s communications director, said the governor “hopes” the Chevron decision will lead to a regulatory rollback over time and as well as help to improve the state’s economy since the doctrine has hindered state businesses’ ability to use natural resources—a main driver of tax revenue.
But he said, “It’s just too soon to tell how this decision will be specifically applied to the various pieces of litigation the state is engaged with.” Currently, the state is involved in nearly 60 lawsuits involving natural resources.
Eventually, it seems likely that federal agencies will be chastened by negative legal rulings.
And a second Trump Administration would undo many Biden regulations judging from its previous actions.
But for those without the money to take on the federal government, they’ll have to wait out legal marathons and pray their business can outlive whatever Washington throws their way.
Marta Hummel Mossburg is a writer in Riverton.
