Much has been written on the Supreme Court’s decision in the Loper case overturning Chevron. Parochially speaking, is Loper good or bad for U.S. agriculture?

The Chevron Doctrine, established by the Court in 1984, held that if a statute was silent or ambiguous on a question, courts must generally defer to agency interpretation of the statute even if the courts would have interpreted things differently. The courts were to undergo a
two-step test under Chevron.

In Step 1, the court was to ask whether Congress spoke on the issue. If yes, the agency received no deference. But, if no, then the court moved to Step 2. In Step 2, the court was to ask if the agency chose a permissible interpretation? If yes, the court was required to defer to
that interpretation. If no, the agency’s interpretation was to be rejected.

In a 6-3 decision in June, with Chief Justice Roberts writing for the majority, the Court ruled Chevron violated the Administrative Procedures Act (APA). Although the majority opinion did not rest on these considerations, the Court also discussed whether Chevron violated Article III and separation of powers under the Constitution and noted Chevron represented a marked departure from precedent prior to 1984.

The Court cited the Framers’ of the Constitution’s understanding of the role of the courts noting, “interpretation of the laws…[is] the proper and peculiar province of the courts” and also the foundational case of Marbury v. Madison to re-enforce that, “[it] is emphatically the
province and duty of the judicial department [i.e., the courts] to say what the law is.”

The Court honed in on the APA, enacted in 1946 as a check on regulations, noting the law requires courts, not government agencies, to decide “all relevant questions of law.”

The Court further observed that while precedent prior to Chevron had afforded agencies due respect, and even deference regarding questions of fact, questions of law were reserved for courts.

The Court took issue with Chevron wherein ambiguities were to be filled in by agency experts, declaring, “Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”

The dissent, authored by Justice Kagan, noted Chevron had been relied upon for 40 years in “allocating responsibility for statutory construction between courts and agencies” and “who should give content to a statute when Congress’ instructions have run out.” Conversely, in his opinion concurring with the majority, Justice Thomas wrote Chevron also violates Article III and the separation of powers.

While supporters of Loper are often those concerned about regulations, Chevron’s establishment by the Court was actually in deference to a deregulation implemented by President Reagan’s Environmental Protection Agency that the Natural Resources Defense Council challenged
in Chevron.

However, as government grew, regulations increased (often made possible by the wide berth afforded under broadly written statutes from the 1960s and 1970s), and the views of many political and career appointees shifted, judicial deference to agencies thought once a safe harbor from excessive regulation became a part of the problem.

We’ve all heard accounts of agencies deliberately writing regulations to expose them to legal challenges. The agencies eagerly waved the white flag. And the regulations that later emerged under consent decrees entered into by agencies and the groups that challenged the initial
regulations then received Chevron deference.

With this backdrop, we return to the question: Is Loper good or bad for U.S. agriculture?

With respect to programs designed to assist producers, there could be legal exposure as a result of Loper, though standing requirements are helpful redoubts against this.

But I submit a few other observations: First, programs to help producers should be written with as much specificity as possible, leaving little to agency discretion and, therefore, little opportunity for opponents to sue. Remember, this whole discussion concerns statutes that lack specificity. But, as Kenny Chesney might put it: no silence, no ambiguity, no problem.

I once debated a career employee (an exemplary one, though he has retired) in which I insisted upon absolute specificity in a statute creating a program, and he was adamant such detail was unnecessary. Specificity won the day and the program works.

More recently, I debated the same thing with some key Hill staff (also exemplary) where I was thanked for my counsel but told it would not be heeded. I don’t think they objected to greater specificity but others at the decision table did object. Schedule F comparisons, progressive factors and discriminatory policies under ERP 2022 resulted. I’d hasten to add the progressive factor would likely fall under a post-Chevron challenge.

My comments are not meant as a negative reflection of Hill or USDA staff but a recognition, learned often the hard way over 31 years, that there are a lot of cooks in the kitchen that can poison even the best broth, including supercilious political appointees, lawyers and bean counters.

So, if Loper pushes lawmakers toward greater specificity in crafting laws agriculture cares about, that’s a good thing, despite any caveats, including that veiled statutes can avoid the disproportionate attentions of bean counters that can border on obsession.

When it is impracticable to include every jot and tittle in statute, there are other means of insulating a regulation from attack, including report language (which can be incorporated by reference in the statute), statutory or report language affirming the agency has generally been properly carrying out the program as Congress intended, and statutory language expressly leaving matters to the Secretary’s discretion when Congress means to give the agency greater leeway.

With respect to other regulations, primarily, but not exclusively outside of USDA’s jurisdiction, there are instances where the agency got it right and those good regulations could be challenged (I deliberately don’t provide examples), much like the EPA regulation that gave rise to the Chevron Doctrine in the first place.

But, judging by my unscientific comparison of the number of negative regulations versus the number of positive regulations affecting agriculture, Loper generally comes as good news as the raft of bad regulations have now lost their sheen and air of invincibility once afforded by Chevron.

To sum up, where agriculture is vulnerable in a post-Chevron world, it redounds to agriculture’s benefit to use greater specificity in the law anyway, not just to avoid legal attacks in the wake of Loper but, even more importantly, to ensure benefits intended by law are actually effectuated by regulation. With respect to regulations that are harmful to agriculture, thanks to Loper, the deck is no longer stacked against agriculture in challenging them in court.

###

This story originally appeared in the Summer 2024 Issue of Sorghum Grower magazine.