by Greg Walcher, E&E Legal Senior Policy Fellow
As appearing in the Daily Sentinel
At a recent Cato Institute conference, Elon Musk spoke about “regulatory gridlock” and a system in which “It’s basically illegal to build big projects.” He called for sunsetting numerous (unspecified) regulations, then concluded with this gem: “Every regulation should be accompanied by the name of the person primarily responsible for it.” It reminded me of a phone call Sen. Bill Armstrong’s chief of staff, Howard Propst, once made to a federal agency, in which he thundered, “I want to know the name of the guy who decided that!”
They wouldn’t tell him the name, prompting at least one legislative amendment requiring all government letters to be signed. It was a process issue, not about the merits of decisions being made, but about who had the authority to make them. Less than a year later in 1984, the U.S. Supreme Court dealt a significant blow to such efforts to hold agencies accountable, in a case called Chevron v. Natural Resources Defense Council.
That case involved a new EPA rule changing the definition of “stationary sources” of air pollution under the Clean Air Act. Congress had never defined that term, leading to disputes about whether EPA’s interpretation was consistent with the law’s intent. The court’s ruling created what has since been called “Chevron deference,” a doctrine requiring courts to defer to agency interpretations whenever the statute itself is vague.
Thousands of cases have since been decided by many courts using “Chevron deference,” though the Supreme Court itself has not applied it for almost a decade. That’s because it has led to a variety of inconsistent rulings by lower courts, and especially because it is increasingly seen as giving regulatory agencies more power than Congress ever intended. More importantly, it has stacked the deck against anyone suing federal agencies for violating their rights.
