Has deference to the administrative state survived?

 The United States Supreme Court unanimously decided a case today that may be significant with regard to the deference of courts to administrative agency decisions.  Agencies process the rights of individuals and interests that may be contrary to those who hold the economic or political upper hand.  Big business eschews the regulations that they are required to follow.  Our civil rights practice relies in part on administrative procedures that, historically, have been of benefit to the potentially oppressed.  Law, including administrative law, avoids the ”tragedy of the commons.”

On the face of it, Justice Kavanaugh’s majority opinion in Seven Counties Infrastructure Coalition v. Eagle County, Colorado decided that the U. S. Surface Transportation Board (the “Agency”) followed the procedures of the National Environmental Policy Act (NEPA) in approving an 88 mile railroad line connecting oil fields with refineries along the Gulf Coast.  Kavanaugh upheld the Agency’s finding that economic benefits of the project outweighed the environmental impact of the project.  In particular, the fact that the Agency did not consider the “upstream and downstream” impact of increasing oil drilling in Utah and increasing refining on the coast was not a basis to overturn the Agency approval.

So far, it appears to be a technical holding in favor of the oil industry.  Justice Gorsuch recused himself because he represented an individual who would benefit from the Court’s ruling.  But it is not surprising that economic oil interests prevailed over environmental concerns.

However, Kavanaugh emphasized that the court (here the D.C. Circuit Court) was required to give “judicial deference” in NEPA cases to the agency’s determination.  Whoa!  Doesn’t that push back on the decision last year in Loper Bright Enterprises v. Raimondo, 603 U. S. 369 which was reported to dismantle the Chevron doctrine of giving deference to administrative agencies?  Well, Kavanaugh briefly cites Loper but summarily rejects its applicability.

Justice Sotomayor concurred in an opinion joined by Justices Kagan and Jackson. Sotomayor concurred that the lower courts improperly considered the potential environmental impacts of constructing a rail line that are “so ‘attenuated’ in the causal chain” that they may be ancillary to the agency’s decision.  Sotomayor deftly avoids direct confrontation with the Loper/Chevron issue in her analysis but then notes at the end Justice Kagan’s dissent in Loper where Kagan says “[A]gencies often know things about a statute’s subject matter that courts could not hope to.”

This case was reported in the New York Times this morning as an environmental impact case but, reading the opinions carefully, the case may have more significance down the road as authority for according “judicial deference” to agency decisions.

While Chevron made sense and Loper broadly interpreted would bring the incredibly complex and necessary process of administering the laws to a crashing halt, this Seven County Infrastructure Coalition case (including the subtle reference to Kagan’s common-sense quote in her Loper dissent) may preserve some sanity.

The practical problem is whether the administrative state is co-opted by politics.  It has regulated economic interests in all sorts of situations in which the individual would otherwise be unprotected and it has provided specific protections regarding civil rights.  While agencies “know things” about administering the law, if the agencies are co-opted by politics – e.g., turning from DEI to white supremacy – the lament of the demise of Chevron might be premature.