Chevron overturn won’t have a large effect on regulations – fears are overblown

Chevron's defenders raise a number of concerns with its demise. Chief among them are the following: That old regulatory disputes, decided on deference grounds alone, will be relitigated, thus flooding the courts and upsetting settled expectations; That new policy disputes, arising from new regulations in an era when agencies no longer command deference, will be decided by the courts, not the political branches, under the guise of legal interpretation; and That, between a dysfunctional Congress and a newly neutered executive branch, it will be impossible for our federal government to address hard problems. We think all of these fears are overblown and, to paraphrase Pete Townsend, that in the end the kids will still be all right. As a preliminary observation, the rolling back of Chevron the doctrine will mean that Chevron Corp., the company, can have its name back. Even more, who among us does not look forward to getting on board with the new Relentless Doctrine — a welcome cultural evolution, no less than when soulful 1990s grunge in the vein of Soundgarden, Alice in Chains and Nirvana pushed out insipid 1980s glam and pop- rock like Genesis, Bon Jovi and Motley Crue. As for the substantive concerns, we think it unlikely that there will be a rush to the courts to settle old scores on numerous older regulations. Even putting aside potential statute of limitations obstacles, between investment-backed reliance interests and the simple staleness of issues, it seems unrealistic, at least by and large, that otherwise interested parties will want to spend their litigation budgets on the disputes of yesteryear. And even if there is a flood of new cases challenging older agency pronouncements, so what? Inasmuch as Chevron itself does not bind agencies to any particular interpretation,[9] settled expectations would be no more upset by new litigation results than a new administration's change of position, and even less so since any new decision based on what the law actually requires, instead of what the law may permit, would provide more assurance going forward than an older result based on deference alone. As for new regulations that prompt new implementing policies, the suggestion that the courts will be making policy judgments seems overstated. For one thing, interpreting a statute is always a legal function, even if it carries with it implications for policy choices. And in any event, the Supreme Court, at least, has already moved past Chevron, so any official death notice will have limited effect on the high court's current approach to statutory interpretation.