by Greg Walcher, E&E Legal Senior Policy Fellow
As Appearing in the Daily Sentinel
You can count on your 10 fingers the number of times the U.S. Supreme Court has ruled unanimously on any environmental issue. And you can count on the fingers of one hand the unanimous rulings on endangered species issues. In fact, you only need one finger to count those unanimous rulings, as it has only happened once in history. Until now. Until the dusky gopher frog.
The only other time an endangered species case was decided by a unanimous Supreme Court was on a procedural question about who is allowed to sue the government. But a unanimous ruling issued a couple days after Thanksgiving settled a far more substantive issue, and in the process, dealt a serious setback to the concept of agency deference.
The “deference” idea simply means that if an agency makes decisions in implementing a law, and the law itself is vague on some detail, the courts will “defer” to the agency’s judgment and expertise, as long as the interpretation seems “reasonable.” It is often called “Chevron deference,” because it came from a 1980s power plant case involving Chevron. It was a bad idea then, and it is a bad idea now. It has been abused by numerous agencies, empowered by the idea that no court is smart enough to second guess their expertise. In fact, many feel it is inappropriate even for Congress to question their judgment. After all, Congress delegates implementation authority to agencies precisely because of their expertise, right?