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Ag Effects Limited in Chevron Decision


LINCOLN, Neb. (DTN) -- As significant as the Supreme Court's overturning of so-called Chevron deference may be to federal agencies and their ability to interpret federal statutes, the court's June 28 ruling could affect a limited number of farmers and ranchers.

Courts will no longer be able to defer to an agency interpretation of the law because a statute is ambiguous in its meaning. Chevron deference required federal agencies to follow statutory language if it was clear. If laws were ambiguous, courts deferred to federal agencies who are considered to be subject-matter experts.

Though U.S. Environmental Protection Agency regulations often are controversial in agricultural circles, Brook Duer, staff attorney in the Center for Agricultural and Shale Law at Penn State University, told DTN courts already have been hesitant to give the agency the benefit of the doubt.

"In agricultural legal issues, the review of EPA regulations is where the judicial review produces the most action in recent years," Duer said.

"EPA has received so little deference from the federal courts in recent legal challenges that it is hard to imagine things being worse for EPA in the federal courts."

Pacific Legal Foundation attorney Jeffrey W. McCoy, one of the attorneys representing South Dakota farmer Arlen Foster in a wetlands case, said he believes the court's ruling will give farmers a better chance in challenging federal regulations.

"I think the biggest effect is that there will be more certainty in how farmers and ranchers will be regulated," McCoy told DTN.

"No longer can the meaning of a statute change from administration to administration. The statutes that apply to those in the agricultural business will be interpreted by courts and that interpretation will stand unless Congress amends the statute."


Tiffany Lashmet, associate professor and extension specialist in agricultural law at Texas A&M University, said farmers and ranchers who challenge agency regulations as ambiguous now have a better chance of success.

Lashmet said the court's decision will put pressure on federal lawmakers to write laws more clearly.

"I think it is important to remember that Chevron only came into play in certain types of cases," she said.

"First, they had to be cases challenging agency interpretation. That is already a smaller subset. Second, Chevron was used only in instances where the agency interpreted a statute that was ambiguous. If statutes are clearly written, we never got to Chevron. So that's a limited number of cases as well. In light of that I am not sure there will be an immediate, clearly seen impact of this in every or even most court cases."

She said it is more likely there will be an increase in litigation challenging agency regulations.

An increased litigation workload could lead to a "slow down" for agency rulemaking, Lashmet said.

"I think it's also important, maybe the most important, to point out here that the real answer as to how to avoid many of these issues is for Congress to speak clearly when it passes legislation," she said.

"If Congress clearly addresses an issue there is no need for agency interpretation in the first place, negating the need to determine what deference, if any, that agency interpretation should receive."


Cary Coglianese, a professor of law and political science and director of the Penn Program on regulation at the University of Pennsylvania, said in a post to the program's website, the court's decision was "dramatic" because Chevron deference was one of the most-cited administrative law precedents.

The decision, he said, will give the judiciary more power when reviewing decisions by federal agencies.

"Some agencies will likely give even greater pause before responding to new, pressing problems under older statutes that do not unambiguously authorize needed governmental response," Coglianese writes.

"This could mean, for example, that agency officials will feel hampered in their ability to respond to matters such as cybersecurity risks or the risks of artificial intelligence that have not been specifically spelled out in agencies' authorizing statutes that were written in an earlier time."

Roman Martinez, a partner at Latham and Watkins, the winning law firm in the Loper Bright Enterprises case on the Chevron doctrine, said during a webinar on Monday that the expertise of federal agencies still will play a role in court decisions.

"The thing that the decision in our case did was essentially say that when push comes to shove and when someone is saying the agency has overstepped its legal authority," Martinez said, "it's not whether the agency is doing a good thing or a bad thing or making a good policy decision or a bad one, but rather whether it's gone beyond what the law allows."

That's when courts will now have to step in and apply their best understanding of the law, he said.

"Even under the Supreme Court's decision," Martinez said, "agencies are still going to have a role, a lesser role, but still a role in the interpretive process."

As long as they are authorized by Congress to define terms in statutes, he said, federal agencies will have the authority for "further elaboration" of definitions in statutes.

"There's something that Congress still can do which is directly give agencies policymaking authority and that judges have to respect those grants of policymaking authority," Martinez said.

Read more on DTN:

"Supreme Court Tosses Chevron Doctrine,"…

Todd Neeley can be reached at

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