US Air Force avoids PFAS water cleanup, citing Supreme Court's Chevron ruling

People see congress as being so broken that anything that asks congress to act is seen as a bad thing, is the problem.

Please name me some times this was used to the detriment of society

In the army I knew a guy who did something so dumb a new regulation was added to the army regulations around UCMJ or what could be prosecuted. I have long forgotten the number unfortunately. But the point is that no statute or regulation can ever specify every eventuality and it’s folly to think it can be done.

Edit the case was a soldier (the guy) had orders to attend a school, went awol enroute. He was not reported awol, the destination nor origin commands knew what happened. He got a guilty conscience and came back to originating command. The reg was about who was required to report the awol. Since the awol was never reported he couldn’t be prosecuted.

In terms of realpolitik though, Congress is so deadlocked that new proposed legislation is unlikely to ever come and if it does, lobbyists and special interests will have plenty of time to render it toothless.

The coverage is not hyperbolic, it hits on real concerns that the courts will now be involved in every controversial decision. Previously, if your company was involved in something that would fall under the governance of a governmental agency, like dumping some new chemical into a body of water, the EPA could be brought in to make a ruling on the matter.

Now, that ruling might not be in the best interest of that company depending on the level of regulatory capture.

In our current world, that organization will now file a lawsuit to block the ruling of the govt organization and cite the removal of Chevron deference. Then a long, tedious process of court rulings might follow. With the ultimate ruling mentioning "the Clean Water Act does not mentioned chemical XYZ specifically by name". Resulting in the company continuing to release said chemical.

When a new toxic chemical enters the water supply near your home, I hope that your congressman responds promptly. In my experience, they have been quite slow moving on most of my concerns...

> Unlike the hyperbolic coverage in the press - the decision did not say that judges are now responsible for making regulation, rather than experts in regulatory agencies.

They said EXACTLY that. There is absolutely NOTHING redeeming in the SCOTUS decision.

Prior to that, courts were required to defer to the agencies for the matter of facts. E.g. if PFAS is a pollutant. Now everyone can just say: "I don't belive PFAS is a pollutant, so there's no need to clean it up". And this will have to be argued all the way up to the SCOTUS.

If the law is ambiguous and the executive interprets it in a way that is outside of Congress' intent, surely Congress could also clarify that law. One could just as (or more) easily assume that it is not the judiciary's role to tell the executive what Congress wanted, considering that Congress is right there to do it with their own voice. The judiciary would come in if Congress thought the executive was doing something outside of their intent.

What this position is really saying is that if Congress leaves something underdetermined the executive must defer to the judiciary in order to understand their own rulemaking.

I agree with you that the real problem here is a schlerotic political system, but in that context SCOTUS is actually making it worse by inserting itself unnecessarily into the process.

> Unlike the hyperbolic coverage in the press - the decision did not say that judges are now responsible for making regulation, rather than experts in regulatory agencies.

No, they literally said that. Multiple times in the ruling [1] [2]. The point is that the court can now take any interpretation of the laws as reason to say the agency has no right to do what they're doing, instead of first checking if the agency and its interpretation is valid and relying on experts.

[1] "Today, the Court places a tombstone on Chevron no one can miss. In doing so, the Court returns judges to interpretive rules that have guided federal courts since the Nation’s founding"

[2] "Under the APA, it thus “remains the responsibility of the court to decide whether the law means what the agency says.”

>Chevon deference allowed an end-run around democracy.

I would consider officials appointed by the regularly elected position of President as more democratically controlled than federal judges. If people dislike how the President is handling EPA rules, they can vote for a different president next time. Or voice their concerns to their elected Congresspeople, who could amend the laws. If SCOTUS rules in a way I strongly disagree with, I'm SOL. And, because of of stare decisis, that ruling is likely to stand for a long time.

>And also led to uncertainty - because these regulations were politically controversial and not supported by law, just by executive branch fiat, they are prone to being revoked whenever the party holding the presidency changes.

Firstly, Chevron Deference required rules to be reasonable interpretations of the law. So it wasn't total fiat. Also, there are other laws that prevent capricious changes. The new rule must be proposed, published, and allowed time for public comment.

Also, Chevron allowed courts to rule on ambiguous matters of law (e.g., how two laws interacted). Because judges are experts in federal laws. But for other questions, such as the dissent's citation of a case over whether a Pacific Northwest colony of squirrels qualified as a separate population from other parts of the country, there's no way I'd trust a judge to understand a crash course on biology, genetics, and ecology delivered by opposing sides in the span of a court case. Now imagine they do this all the time for different subjects. I doubt many judges look forward to these cases.

Sure, the SCOTUS respects congress's views, except for things like voting rights, where the congress renewed it 390–33 and unanimously and was signed by a GW Bush. So they'll respect the congress when they agree with it and overturn it when they disagree.

And they'll disagree with findings of fact and overturn those when they disagree, they'll find standing where there is none.

Heads I win, tails you lose.

The ruling itself ironically provides an example of why it is a bad ruling: Gorsuch, authoring the majority opinion, repeatedly referred to "nitrous oxide" rather than nitrogen oxides. If the SCOTUS justices can't get this right, in the opinion itself, how can we expect them to make informed decisions on other scientific matters that are more complex?

It also seems legally dubious to me, because there will always logically be some level at which interpretive discretion is allowed in executing some statute. Laws cannot fundamentally anticipate every single scenario to which they might be applied. It's disingenuous or naive to believe that regulation is any different at some fundamental level from any other form of statute.

You can also turn your own argument on its head: if someone has a problem with a regulatory interpretation, they can always appeal it. SCOTUS could have ruled something more reasonable along these lines, to clarify how to establish abuse of regulation.

I tend to be deregulatory in my political sympathies in a lot of domains, but this is not how to go about the issue, in my opinion.

> ... really come down to people who are advocating for positions and regulations which are unachievable through the normal political, legislative process in the US...

I worry that "the normal political, legislative process" will be the death of our planet.

> All of these controversies over Supreme Court decisions really come down to people who are advocating for positions and regulations which are unachievable through the normal political, legislative process in the US getting upset that the Supreme Court is not allowing them to enact these policies through backdoors and loopholes rather than the democratic process.

Is that you, Justice Gorsuch?

It will just end up like Qualified Immunity. "Your honor, I was wearing a green shirt, this is unprecedented territory and totally different and Congress needs to clarify".

What historical uses of the Chevron deference do you actually find objectionable? Why can't those specific instances have been pushed back on, instead of just scrapping the whole thing?

A quick check of avalys's other posts shows that he opposes enforcement of pretty much every law, and that he always has an excuse for why this makes sense.

He's not coming at this from any sort of morality, or logic, or sound jurisprudence, or love of democracy or anything else... he's just another white collar anarchist who thinks he'll get slightly richer if the government is weaker.

> Previously, Chevron deference required the courts to defer to the agency's interpretation of the statute, regardless of how unreasonable that interpretation was.

No it didn't. It only required deference to reasonable interpretations by the agency.

The courts should not be able to make and apply any standards to government operations that it conveniently sees and defines as ambiguous, especially since a lot of their standards are frequently seen as more than ambiguous. We've seen this with their emergency "posthumous" clarifications of the Roe ruling by conflicting EMTALA, fertility clinics, and decades of health science.

I think it's easy to argue against it being the right decision simply due to the people involved on each side of the case.

For one, it was a very "partisan" ruling being a 6-3 conservative court ruling.

The fishing companies' legal representation for the case includes organizations with funding linked to Charles Koch, and the side that is condemning the outcome is an environmental protection group.

I'm no bootlicker. I don't side with corporations and billionaires over environmental protection groups unless there's an extremely compelling case for it.

I think that while you may technically be right about the flaws in the status quo, the end result of the ruling will be that companies now have a new mechanism to litigate every bad thing they want to dump into the environment to death whereas previously the administrative regulatory agencies were able to quickly strike down nonsense like that. I think they'll have a better avenue to now claim rules are ambigious that aren't actually ambiguous, appeal appeal appeal, and just keep going at it until they find friendly or uninformed judges.

And let's not forget that administrative agencies don't have a complete lack of enforceable ethics rules like the Supreme Court does. If a company wants to claim a chemical is ambiguously dangerous, they can now litigate the hell out of it all the way up to a surpreme court where a direct bribe to a judge is 100% legal.

All of that still filters down to- experts at agencies don’t have the final say, naive judges and a deadlocked congress do. It’s a terrible decision and everyone understands it correctly.

It's the Air Force. Really it should be the Navy or the Coast Guard cleaning it up, right?

Ummm… I assume you are complaining about the Loper Bright decision that ended “Chevron deferrence”, correct? You do realize that the Chevron decision was to give Dick Cheney his way on environmental questions, yes?

Loper Bright says that regulators can’t change rules on a whim as they go along, and ignore/exceed congressional authority. What part of that do you have a problem with?

Chevron has been zombie precedent for years. Do you really want the interpretation of administrative law changing every four years? This is just another example of the Supreme Court telling Congress to do their job which is where the political focus should be. If you want PFAS to be cleaned up, then get your congressperson to pass a law to have the executive branch do it. It is going to be much more effective in the long run.

I don't know what gutting the supreme court actually means, but this is incentive for Congress to work together and actually write laws instead of shunting this responsibility to agencies whos rules change every 4 years.

Another thing this court has highlighted is we shouldn't rest on specific legal interpretations when big and important ambiguities are raised. Whether it's the interpretation of the Constitution as protecting abortion in Roe v. Wade, whether or not the 14th amendment does or does not allow factoring race into college admissions via affirmative action in Grutter v. Bollinger, when courts must defer to agency interpretation of a law as found in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., or other such important decisions it's not something we should just leave as settled via current interpretation rather something we should seek to reinforce via updates to the law. That such important things make it to the Supreme Court to decide interpretation should be hint it may not be as clear cut as we'd like to have believed.

The biggest factor in limiting the Supreme Court's power is writing laws that supersede the rulings on existing laws. If we just rest on ever increasing current interpretations of past laws to drive current policy then we are going to give an ever increasing amount of power to the judicial branch.

If the courts decide against the USAF's interpretation of the ruling, will you change your mind?

> We will soon see what a huge and harmful deal the recent Chevron ruling is. The Supreme Court needs to be gutted.

You dont seem to understand the role of the judiciary. Even if the removal of Chevron deference has the most destructive effect of any ruling of all time, that in no way suggests the law was interpreted incorrectly which is the actual purpose of the court. Suggesting the court should be gutted because of harmful effects just shows you don’t want a judiciary at all.

Rather, expanded. Way too much is influenced by the decisions of a few. The opposing political party (nor the American people) shouldn't ever fear that one president could turn the country for decades just because they had the power to appt 1 or 2 justices

Exactly. Chevron was a reasonable decision and the only reason it got overturned was a concerted effort by lobbyists, billionaires, Heritage Foundation, and corporate boards to overturn something that kept them from paying for the costs of their damage to the air, water, and ecosystems where we live. The US oligopoly is showing through in the manner of socializing costs and privatizing profits.

One is a regulatory agency, the other is not. USAF doesn’t benefit from Chevron like EPA and others do (or did). Also these cleanups come out of their budgets and they’d rather (mis)spend it elsewhere.

You're attracting downvotes, but I think you make a good point. It's a legitimate question to ask, why would the Air Force, which is very much under the control of the executive, be defiant in this case? I would expect the current administration to be supportive of the EPA. Is this some kind of political maneuver? I mean, the president is currently making the argument for SCOTUS reform, so this could be a way of making it look like a good idea.

The article itself makes this point, raising the question of why this hasn't already been resolved internally.

But legal experts noted that Chevron does not affect EPA enforcement actions like the Tucson order – it only affects the rule-making process.

Moreover, one arm of the administration cannot sue another, so the military cannot sue the EPA, and the case would never end up in court where the Chevron decision would come into play, said Walter Mugdan, a former EPA Superfund director. Instead, it would be resolved internally by a presidential administration instead of the judiciary.