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What’s next after Supreme Court curbs regulatory power: More focus on laws’ wording, less on their goals

Posted on 8 July 2024 by Guest Author

This article by Robin Kundis Craig, Professor of Law, University of Kansas is republished from The Conversation under a Creative Commons license. Read the original article.

Federal Chevron deference is dead. On June 28, 2024, in a 6-3 vote, the Supreme Court overturned the 40-year-old legal tenet that when a federal statute is silent or ambiguous about a particular regulatory issue, courts should defer to the implementing agency’s reasonable interpretation of the law.

The reversal came in a ruling on two fishery regulation cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce.

This decision means that federal courts will have the final say on what an ambiguous federal statute means. What’s not clear is whether most courts will still listen to expert federal agencies in determining which interpretations make the most sense.

While courts and judges will vary, as a scholar in environmental law, I expect that the demise of Chevron deference will make it easier for federal judges to focus on the exact meaning of Congress’ individual words, rather than on Congress’ goals or the real-life workability of federal laws.

Who decides what the law means?

Chevron deference emerged from a 1984 case that addressed the Environmental Protection Agency’s interpretation of the term “stationary source” in the Clean Air Act. The EPA asserted that a “source” could be a facility that contained many individual sources of air pollutant emissions. This meant, for example, that a factory with several smokestacks could be treated as a single source for regulatory purposes, as if it were enclosed in an imaginary bubble.

In upholding the EPA’s decision, the Supreme Court created a two-step test for deciding whether to defer to a federal agency’s interpretation of a statute that it administers.

In Step 1, the court asks whether Congress directly addressed the issue in the statute. If so, then both the court and the agency have to do what Congress directs.

In Step 2, however, if Congress is silent or unclear, then the court should defer to the agency’s interpretation if it is reasonable because agency staff is presumed to be experts on the issue. Justice John Paul Stevens reportedly told his colleagues, “When I am so confused, I go with the agency.”

The central question in both the Loper Bright and Relentless cases was whether the U.S. secretary of commerce could require commercial fishers to pay for onboard observers they were required to bring on some fishing voyages to collect catch data. Lower courts in these cases deferred to the agency’s interpretation that, under the Magnuson-Stevens Fishery Conservation and Management Act, it could require fishers to pay.

However, in an opinion by Chief Justice John Roberts, the Supreme Court majority concluded that Chevron deference contradicts the Administrative Procedure Act. This broad law governs both the procedures that federal agencies must follow and, more importantly, the standards that federal courts must use to review agency actions.

As the majority pointed out, under the Administrative Procedure Act, “courts must ‘decide all relevant questions of law’” – explicitly including interpreting statutes.

Curbing the administrative state

Since 1984, Chevron deference has become pervasive in federal administrative law. By the Supreme Court’s count, 70 of its own decisions in that time have turned on Chevron deference.

More importantly, thousands of lower federal court decisions – more than 400 a year on average – have deployed Chevron deference on issues ranging from Social Security benefits to workplace safety standards, immigration eligibility and environmental protection requirements.

Chevron deference gave many federal agencies broad flexibility to use laws to address new and emerging problems that Congress did not anticipate. But some members of the current Supreme Court – as well as some federal appellate judges – criticized this doctrine, for two key reasons.

First, it authorized executive branch agencies to interpret federal law and forced courts to accept agencies’ reasonable interpretations. However, since the Supreme Court’s 1803 decision in Marbury v. Madison, it has been the duty of courts – not federal agencies – to say what the law is.

Second, Chevron deference arguably allowed federal agencies to grab more regulatory authority than Congress intended them to have, usurping the legislative branch’s responsibility to make law and delegate authority.

EPA infographic outlining the regulatory process. Regulatory agencies take general directions written in laws from Congress and develop specific policies to achieve the goals Congress defined. EPA

How much does Loper Bright undo?

The court majority emphasized that prior court decisions upholding agency interpretations based on Chevron deference cannot be challenged solely because of that fact. As Roberts wrote, these holdings “are still subject to statutory stare decisis.”

Stare decisis, or “the thing is decided,” is legalese for why courts will respect prior decisions. In other words, no challenger can go back to a court that relied on Chevron deference and ask the court to change its original decision that the agency’s interpretation was OK.

That’s good so far as it goes. However, many agency interpretations of statutes can be challenged multiple times.

For example, the Clean Water Act protects “waters of the United States.” In 2023, the Biden administration issued new regulations interpreting which bodies of water the law covers. Challengers who disagree with that interpretation can attack the regulations directly and argue that the agencies’ reading of the law is wrong, as the fishing companies did in the Loper Bright cases.

However, under many laws, businesses and individuals can also challenge an agency interpretation at the moment when the agency decides that a general regulation applies specifically to them. These are called “as applied” challenges. After Loper Bright, any time an agency that benefited from Chevron deference goes to apply its interpretation to a new regulated entity, that regulated entity can challenge the agency interpretation – and this time the agency won’t get Chevron deference.

Will federal courts still listen to regulators?

Eliminating Chevron deference will likely worsen an existing division among judges, and justices, about how to go about interpreting statutes. It centers on how much a statute’s purpose and context should matter – or, instead, how much the judge should focus on the “plain meaning” of the particular words that Congress chose to use.

Suppose, for example, that a federal court faced the issue of how to define a vegetable for purposes of determining whether import taxes apply to imported tomato sauce. A plain meaning approach would emphasize that Congress decided to tax vegetables and that tomatoes are fruits; hence, tomato sauce is not subject to the import tax.

An approach focused on Congress’ purpose, in contrast, would emphasize that Congress wanted to tax all imports of savory foods that the public generally considers to be vegetables. Using this approach, the Supreme Court in 1893, in fact, decided that tomatoes were vegetables subject to import taxes.

Federal agencies typically take Congress’ purpose and the context in which regulators act very much into account when they decide what laws mean. For example, when the Food and Drug Administration had to distinguish proteins, which qualify as biologics for regulatory purposes, from chains of amino acids, which qualify as drugs, it focused on Congress’ reasons for creating the two categories. Ultimately, the agency decided that a molecule made up of amino acids had to have a certain level of complexity to qualify as a protein, and hence a biologic.

In contrast, ever since the late Justice Antonin Scalia joined the Supreme Court in 1986, federal judges – and especially Supreme Court justices – have taken an increasingly “plain meaning,” or textualist approach, to statutory interpretation. The current Supreme Court, for example, would almost certainly never have allowed a tomato to be a vegetable.

Dissenting Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown-Jackson, along with many other legal experts, foresee serious problems for future cases that turn on highly technical issues. What will happen when a statute’s nonexpert plain meaning makes no practical sense in a highly technical or scientifically nuanced regulatory regime, such as the FDA classifying biologics and drugs?

Gorsuch, seated, gestures during testimony. Supreme Court Justice Neil Gorsuch, shown during his confirmation hearing on March 22, 2017, argued in 2022 that Chevron deference ‘deserves a tombstone no one can miss.’ AP Photo/Susan Walsh

How long will the APA matter?

This ruling also may signal that the court plans to pay greater attention to the 1946 Administrative Procedure Act’s primacy in federal administrative law. This statute had been in place for almost 40 years when the Supreme Court decided Chevron in 1984, and the Chevron majority did not see it as a problem at the time.

Now, however, it has become a reason to overturn Chevron deference. Other court-created glosses on administrative law may also be dead doctrines walking.

Congress can and has created different standards of review in other statutes, including the Clean Air Act that led to the Chevron decision. What if a future Congress specifically directs that the implementing agency should take the lead in interpreting a particular statute?

I expect that the Supreme Court would reach for the Constitution and declare any such delegation unconstitutional. In other words, it is probably only a matter of time before Loper Bright’s overruling of Chevron deference becomes a matter of federal constitutional law.

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Comments

Comments 1 to 31:

  1. The courts have had to decide many other cases with technical complexity, social, scientific and criminal, I don't see requiring elected representatives to work harder at crafting the guiding legislation, conducting hearings with subject matter experts, including the unelected but presumed selfless and with purity of motive from these vaunted agencies, to be a problem.

    Who says the best experts work for government, have not been elected and cannot be fired, and their opinions, judgement and outlook should always have priority over our lives? Separation of powers is essential to liberty.

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  2. TWFA @1 :

        in a sense, it is rather refreshing to hear that you have such innocent faith in the competence of the judicial system (and of our elected representatives)  . . . . despite so many examples of incompetence or malice.  ( I won't mention details of certain egregious judicial decisions of recent times.)

    Also, in a sense you are correct that for some matters, a non-expert opinion by a non-expert judge can be a useful way of deciding simple issues.   This system worked moderately well 200 years ago when society & technology were simple.

    For better or worse, we nowadays live in vastly more complex circumstances.  Not only is there greater scope for Dunning-Krugerly ignorant decisions to affect medical & engineering & other scientific-based operational matters ~ but the timeliness of proper rapid decision-making gets destroyed by years of legal wrangling and multiple layers of appeals systems.

    You really ought not to have a Court driving a bus, or flying a jetplane, or choosing the response to a major new epidemic.  (And I won't mention political hot-potatoes like emergency abortions, etcetera.)

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  3. Well, I am sure YOU would want a court if your expert bus driver makes a miscalculation and kills someone dear to you. But when it comes to government experts they are presumed infallible, there are never any mistakes, especially when it comes to climate policy, and you have no such court, if they miscalculate and their policies ruin your life or those of your descendants they cannot be punished or fired, there is no remedy.

    Not only that, you had no recourse when their regulations were written and enforced, theirs was the word of God and the courts and the people had no say other than public commentary for 30 days or whatever, typically ignored as the train has long left the station.

    So, if you earn your living fishing and somebody decides you should assume all the costs of regulating yourself under rules you had no part in writing, or if you own a field that 99.9% of the time is dry but once in a while a huge innundation comes along and leaves a puddle for a few days and by some new regulation or interpretation suddenly becomes federally protected wetland, meaning no longer yours to do with as you choose, you have no say in the matter. You waste your time going to court only to be told that the court can only defer to the masterminds who wrote the regulation in the first place.

    You want to live under a tyranny of experts, fine, I prefer liberty under the mediocrities, like Salieri I am the patron saint of mediocrities.

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  4. Regarding TWFAs comments (paraphrasing) that leaving regulatory decisions to government agencies is unwise,  because you can't fire government employees for bad performance, its all undemocratic, etc,etc.

    Government employees can be fired in America,  although its a difficult process making it hard work to fire them.  So yes I feel that governmment agencies deciding on regulatory issues isn't ideal although its the hiring and firing process to blame not the agency.

    But having technocrats make decisions has its place sometimes. Democracy where we leave decisions to elected politicians should be the primary tool, but sometimes it makes sense to leave it to technocrats. For example Reserve Banks are left to decide certain aspects of monetary  policy and there is a complelling case for this. Namely that politicians horribly abuse monetary  policy and can't help themselves.

    But its probably not ideal that tecnocrats get too involved in deciding regulatory issues. It wouldnt be needed if congress did their job. How hard can it be? Review the issues and vote on it.

    It should also be noted that its also very difficult to fire a federal court judge, requiring  impeachment by the House of Representatives and conviction in the Senate. This actually makes it almost impossible and would require a massive wrong doing by the judge. So bad luck if the judge makes an absurd decision on one of these regulatory issues. So this is not ideal either. And as Eclectic points out if federal courts make the decision it will probably hugely slow things down. I would say the only real winners will be all the lawyers. 

    I do not live in the USA so I googled these things. Hope I haven't misinterpreted the laws!

    Just out of intererst how many issues are deferred to the government organisations to decide? Is it therefore a significant problem? Is there any solid evidence that the agencies have made bad decisions. Not decisions you just don't like or agree with. Decisions that didn't work out well in practice because they were just professionally negligent or incompetent.

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  5. Nigel, you can appeal to higher courts, but if they are all required to defer to the unelected and permanently entranched regulators it has obviously been a wasted effort prior to Loper overturning Chevron. As to how many, it is probably far to many to count, because not only do they write the regulations but periodically reach back and reinterpret and usually expand their scope, for example the ex-post-facto inclusion CO2 into the Clean Air Act of 1970 as a pollutant caused cases to go to the Supreme Court where in a split decision it was decided in 2007 that the EPA "could" regulate CO2 but would still be subject to lawsuits, thus leaving the final decision with the courts and not the regulators.

    There are almost 100,000 pages in something like 250 volumes of the Code Of Federal Regulations, all written by unseen and unaccountable people, revolving doors of experts who regularly pierce the semipermeable membrane between government and private sector, first feverishly promulgating regulations and then moving to the private sector to make a living helping others either fighting or complying with them.

    The regulatory world is a living being with a whole economy and ecosystem of its own, like the mysteries of the human brain or the global ecosystem, nobody can claim they know everything that is going on, least of all the public at large, yet those regulations affect virtually every aspect of life.

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  6. TWFA @5

    Thanks for the comments.

    I can see that there are potential problems with the governments agencies effectively approving their own regulations. It's better that congress do that function. I'm not sure the federal courts will be any better doing this than leaving it to the agencies but it appears that is the way things are going.

    But writing the regulations is another thing entirely. Governments regulate the business sector and other groups to ensure health, safety and the environment are protected. Agencies of government write the regulations generally including consulting industry groups for feedback, in my country anyway. Technocrats with appropriate qualifications do the detailed work. This is entirely appropriate. Im happy with that process and its principles  provided its carried out well. Then congress (ideally)  decide whether to approve the regulations, thus effectively turning them into law.

    I don't think the number of regulations matters. Its not possible to define an optimum number. What matters is if a specific regulation is good quality. If they are prepared by well trained experts then its up to congress (ideally) to decide wither they are good quality and serve a useful purpose and become law. I think thats the best way.

    I acknowledge its possible to both under regulate and over regulate, but again its ultimately up to congress to decide whether some regulatory proposal is too weak or is petty and going too far. In my experience in New Zealand we see evidence of both types of regulations but generally more problems with weak regulations, especially when as a result of the approval process the recommendations of the governments agencies get weakened by politicians. However overall our various building codes and health and safety rules etcetera are pretty good, and reflect well on the technocrats  input into the work and their expertise.

    Self regulation where businesses regulate themselves is sometimes appropriate but mostly fails. So if you want to bring a libertarian perpective to this you are wasting your time with me :)

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  7. Nigelj @4 and TWFA @5 & prior :

    Nigel, since you speak as a Non-American, it is likely that you have not considered all of the peculiarly American aspects of the situation.  On that assumption, please allow me to recommend the viewing of a "fresh" Youtube video posted within the last 12 hours.  It is issued by the LegalEagle channel, and has the appallingly Clickbaity title: "The Supreme Court Destroyed The Government While You Weren't Looking".    (the length is about 22 minutes, after subtracting ads)

    You (and TWFA) will find the video entertaining as well as instructive.  They've packed a lot into the 22 minutes, about the SCOTUS reversal of of the so-called "Chevron Deference".

    TWFA,  I have traveled 1000's of miles by bus on country roads ~ and it sounds like you have not.  I can assure you that everyone inside (and outside) the bus has a far better likelihood of safe travel where there is a single (though imperfect) driver holding the steering wheel . . . . compared with a group of judges & lawyers & their clients all fighting for control of the wheel (which would be bad enough on a straight road, let alone on a twisty mountainous road).

    TWFA, you have not really thought things through, regarding government and the functioning of society.  As shown by history (and common sense) ~ the system you propose would result in more damage & oppression to the Little Man (that's me & you) as we endure a rather chaotic courts system where deep-pocketed individuals & corporations throw their weight around (even worse than they do at present).

    TWFA, your ideological objections might possibly be satisfied if Congress provided far more detailed legislation to cover the great complexities and ongoing changes of modern life.  But that would require extensive & numerous committees of reviews & inquiries & oversight.  And in view of the Kindergarten scientific education level of (the majority of) Congressmen . . . then they would (if not corrupt) require the advice of the very experts that you abhor.

    Sadly, TWFA, that would require the large expansion of the Senate to 600 maybe 2,000 senators . . . and a far larger Lower House ~ maybe to 4,400 or even 12,000 representatives.

    Be careful what you wish for, TWFA.

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  8. Nigelj @6 : my apologies for cross-posting with you.

    What it all boils down to, is the need for common sense in the structure of governmental and legal systems.  Recent court/legal decisions have gone against common sense.

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  9. Well, TWFA certainly seems to have tossed some strong opinions into the discussion. Strong anti-government opinions, to say the least. He seems to discount agency expertise on the basis that they "are presumed infallible" , "theirs was the word of God", "there is no remedy", "defer to the masterminds", etc. Talk about creating strawman arguments.

    If we apply the same standards to the court system and legislatures (the other two branches of government), then surely they will fail the test, too - but that doesn't seem to bother TWFA. The courts and legislature are not infallible. They are not the word of God. There is no remedy to bad Supreme Court decisions (except by slowly replacing judges with politically-appropriate choices when the time comes), and they are certainly not populated by "masterminds".

    But what does the OP say? Regarding the Chevron deference, "if Congress is silent or unclear, then the court should defer to the agency’s interpretation if it is reasonable". Should, not must. And only if it is reasonable, not unconditionally. And the fact that the original Chevron decision and the current decision both reached the Supreme Court tells us that the parties involved did have remedies via the court system.

    What does the OP say about the effects of the original Chevron decision? It says "Chevron deference gave many federal agencies broad flexibility to use laws to address new and emerging problems that Congress did not anticipate." Two keys phrases there:

    • "new and emerging problems". With no flexibility to deal with new problems, we would need to wait for legislatures to enact legislation to deal with every new situation. New toxic chemical? Wait. New disease? Wait. New problem in aircraft design ([cough]Boeing{cough])? Wait. Wait. Wait. Wait.
    • "did not anticipate". Now, we will need a legislature that can anticipate every possible outcome in the future, and understand it well enough to craft legislation to cover every possible bad result. Not only must the legislature become experts in every field, they need to be omniscient. Completely able to predict the future. And if they can't, we need to wait until something bad happens and they can craft new legislation to cover the unanticipated. No ability for an agency to react and hopefully prevent bad things - just a system that will need to wait for things to become specific enough that a legislature will hopefully pass some legislation that will be effective.

    TWFA gives us a couple of examples.

    • An "expert bus driver makes a miscalculation and kills someone dear to you".
      • Who gets to decide the bus driver is an "expert"? Is that driver subject to regulations to test that expertise, or is that beyond the scope of what regulatory agencies are allowed to regulate?
      • Who gets to decide that what you think is a "bus" is actually a bus, or some new, unanticipated form of transport? Is the motor vehicle agency over-stepping its bounds in deciding that new thing is a vehicle that it can regulate?
      • Will the "bus driver's: defence be that it wasn't a vehicle covered by the agency's mandate, and there is no requirement for the "driver" to have any training, licencing, or testing at all? That there is no requirement that the "bus" pass any sort of safety inspection? So there is no crime and no liability?
    • "If you earn your living fishing and somebody decides you should assume all the costs of regulating yourself under rules you had no part in writing,"
      • Which comes to the heart of the original Chevron case. In that case, the decision (as described in the OP) was to "require commercial fishers to pay for onboard observers". TWFA thinks that is terrible. The same argument could apply to "require fishers to pay for their own training to meet boat operations safety requirements". Or "require fishers to use a boat that meets nautical design requirements". The boat isn't maintained. The crew isn't properly trained. It's not as if boats can cause major bridges to collapse. What's the worry?
      • If we extend the analogy to other issues, it would be unfair to require that chemical factories pay for waste water treatment that removes toxic compounds that they are dumping into our drinking water sources. Or that airlines pay for maintenance on aircraft to prevent them from falling out of the sky. Unless, of course, the legislature had already enacted legislation that identified every new possible risk associated with things like a new autopilot feature ([cough]MCAS[cough]) and had explicitly told the agency how to handle it.

    TWFA says it himself: he dislikes experts, and prefers to live in a mediocre world.

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  10. I simply prefer experts who are accountable for their mistakes, most who write and enforce the regulations are not.

    As my history teacher always said, people get the government and outcomes they deserve, if you wish to live in a place like China or soviet Russia, with their master plans crafted by masterminds, worthless courts if any at all, protest illegal, suppressed or censored, and generally no recourse available but escape, just let things keep drifting in that inevitable direction because bureaucracy is a beast that gets ever bigger and seeks more control, as we have seen with the IRS attack on the Tea Party organizations and collusion with big tech to suppress government mastermind deemed "disinformation".

    When you listen to businessmen in the private sector talk about their operations they speak revenue, productivity and efficiency, when you hear bureacrats they only talk head count and funding, no agency ever ceases to exist, it is assigned or assigns itself new missions and like all organizations seeks to grow and prosper as liberty withers and dies.

    As Jefferson said, "The price of liberty is eternal vigilance", and I remain so.

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  11. Ah, so TWFA thinks that private industry is accountable to the general public No, they're just accountable to making money, no matter how much damage it might cause to others. Some corporations and businesses take public impact seriously, but there are so many examples of company executives making decisions that made money for either their company or a select group of shareholders (insider trading comes to mind) or executives, with tremendous external costs to society. Accountable? Not when executives rarely go to jail, and corporations can just declare bankruptcy and avoid any legal and financial consequences. Were all the "responsible" people held to account for the Bhopal disaster? Some were, and fines were levied. Enough to be "accountable" for thousands of deaths and hundreds of thousands of injured?

    TWFA has a very naive view of government. He sees nothing but bad. Obviously he has no practical experience in working within government. I have worked with many scientists in government, and most take their social responsibilities quite seriously. Is it perfect? No. But neither is "private industry".

    "But communism" as a rallying cry was tiresome back in the 1950s. The "they are taking away my liberty" cry is just as tiresome now. Maybe he'd prefer to live in today's Haiti, where government control is negligible and drug gangs rule the streets? That's the other extreme that TWFA doesn't want to look at. Freedom!

    What TWFA dislikes is experts that actually know what they are talking about and disagree with his mediocre knowledge and understanding. He appears to want everyone to be accountable to him - and him alone.

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  12. Bob Loblaw @9 :

    Quite amusing examples.

    Regarding ship safety, you've taken it A Bridge Too Far.

    Haiti is a fine example too, TWFA.   Haiti is the Libertarian's Utopia, for you.  And in the opposite direction ~ only a stone's throw away ~ is Cuba, the Communist's Utopia.

    Why is it that Libertarians, as well as Communists, are unable to look at human history and draw sensible conclusions?   It's a mystery, why these doctrinaire flag-wavers can remain so blind to all the evidence around them.   TWFA, can you explain it?

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  13. TWFA, would you be happy with government agencies approving and  interpreting the meaning and applicability regulations, if the governmnet agencies employees could be more easily fired for incompetence? 

    Or do you just dislike government agencies in general, and think they should be eliminated? If so what is your workable alternative? 

    I think its reasonable to ask that you clarify your position. I'm always open about my position. 

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  14. Eclectic @ 12:

    In addition the bridge example, I was also thinking about the submersible that took tourists to the Titanic last year - and imploded (killing all) on the way down.

    One of the factors in the design of that submersible was a proprietor that thought he knew more than the experts that had been building submersibles for years (and told him it was a bad design), as well as a company that thought it did not need to bother with fancy-schmancy certification of sea-faring vessels. As stated in the Wikipedia article I linked to above, the company was "arguing that excessive safety protocols hindered innovation".

    The company sure found an innovative way to kill off its owner and a few paying passengers.

    But that's not a problem. TWFA has assured us that the company involved - and it's internal "experts" - are in a much better position to be held accountable than the regulatory experts that said "that's not a good idea".

    I always liked the Canadian Aviation Safety Letter's motto (which was sent to all licenced pilots back when I was flying). It said "Learn from the mistakes of others. You won't live long enough to make them all yourself".

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  15. Eclectic @112

    "Why is it that Libertarians, as well as Communists, are unable to look at human history and draw sensible conclusions? It's a mystery, why these doctrinaire flag-wavers can remain so blind to all the evidence around them. TWFA, can you explain it?"

    Can I make a comment on this. I did a bit of psychology at university.
    Psychological research indicates a genetic basis to our political leanings. People tend to be born either liberal or conservative. And people are born either preferring the freedom of action of capitalism or the perceived security offered by communist / socialist systems. Its not a rigid tendency, because people do sometimes change their preferences ,but something innate is going on in combination with environment.

    For some people the leaning might be very strong and this might explain why they stick to the beleifs despite the evidence - but im not 100% sure of this. Others may have some knowledge of recent research on it. 

    Its also possible that people persist with these beliefs even although the evidence says the dogmas clearly dont work, because they are unusually stubborn and can't let go of the ideas. This might be because they have narcissistic and very egotistic personalities. Changing beliefs is hard for these people because it means acknowledging they got something wrong and this hugely hurts their ego . Of course we are probably all a bit like this, but with some people its extreme to the point of being some sort of mental disorder (Narcissistic Personality Disorder). So they persist in absurd beliefs despite the evidence to the contrary, where the rest of us modify our beliefs. This obviously applies to some of the climate denialists as well. Im 100% certain this would be a big factor in why people adhere to ridiculous beliefs.

    But I would say belief in absurd dogmas is probably not due to just one thing. Some people also adhere to dogmas due to peer group pressure and group think. 

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  16. Nigelj @15 :  Yes, thank you for that.

    My question was to some extent rhetorical.

    But you make good points about stubbornness & narcissism.  A toxic combination, yet far from rare ~ especially in politics.

    TWFA's opinion on the matter would be welcome !

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  17. Bob Loblaw @14 :

    Thanks. More good points, to be sure.

    Marvellous, how Libertarians & Communists keep insisting on making the old mistakes over and over again.  But twas ever thus.

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  18. I appreciate all the insults and vituperative assertions as to my ignorance and wickedness, not very persuasive, but I am used to it, actually amused.

    I understand that climate activists, like many others, generally love regulation because it is more efficient and easier to achieve their aims by lobbying for regulation than persuading folks to do as wished on their own... compulsion for their own good whether they know it or not. Persuasion requires far too much marketing and creativity outside their skill set to present the proper value proposition that closes the sale, skills like those of a successful capital equipment sales rep flying an ICE aircraft around the country as I was years ago... you know, the deplorables.

    It's not that I am against regulation in the public interest, the point I was making is that there is no accountability for regulators and the process is far from public... how many people have the means to file FOIA requests to see what pharma reps have been meeting with which regulators and go to court when such requests are routinely ignored?

    Pilots under the influence, fatigued, or who allow their equipment to fly race tracks in known ice while on autopilot and gossiping about the job, only to have the AP disengage and hand them an unflyable aircraft, or for 20 minutes descend in a full stall into the Atlantic while arguing over which law their fly-by-wire aircraft is operating under pay the same price as their charges.

    On the other hand if an accident results from flawed design, manufacture or operational procedure only the private sector participants pay the price, the regulators who type, production and airworthiness certified the equipment pay no price. They might get reassigned, but they never get fired and never lose their pensions and benefits, let alone their lives.

    Again, I am not against regulation in the public interest, but I am absolutely against regulation in the regulators' interests, and I simply want to make sure we are regulating the regulators, or at the very least have a means for protecting ourselves from the regulators, and that would be the other two branches of government.

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  19. TWFA @18 :

    Bless your heart ~ it's unsurprising that you are used to criticism.

    But you haven't given a coherent description of your worldview.

    ~ That also, is unsurprising.

    .

    Please draw up a fresh sheet, and say how you would arrange things, given your druthers.

    I looked through your lengthy and slightly discursive screed (above) . . . but didn't see mention of sharks & boats with huge electric batteries ~ so I am happy to accept that you are not suffering from Fronto-Temporal Dementia.  So please feel free to express yourself, without fear of recrimination.

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  20. Dyslexic on his high horse @19, I do not believe the OT was about my world view, only about the effect of Chevron on the power of regulatory agencies, obviously I am glad it has been overturned for the reasons I have stated.

    You make a very good example for my point about the lack of salesmanship, you are free to hand down to we little people your sacred scrolls if you wish, I probably care as little about your world view as you do mine, if all you want to do is argue, go to the argument clinic.

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  21. TWFA @20 :

        On the contrary, your worldview is very relevant to the case (whether OT or OP . . . ? )

    Also, thank you for not describing me as a Nasty Woman +Man +Person +Camera +TV .   It is bigly appreciated !

    Is it not interesting that some people have a Round-Earther worldview, while others have a Flat-Earther worldview?  And you yourself would not be posting on this science-based website, unless you were wishing (at least partially )  to test and/or re-evaluate your current set of ideas.

    But, TWFA, your position is difficult for others to understand.

    I gather that you have some Libertarian leanings, since you favor doing nothing more than "persuading folks to do as wished on their own"  [unquote] . . . (e.g. the Ten Commandments are viewed as merely suggestions or voluntary guidelines, entirely optional.)

    At the same time, you have Totalitarian leanings, since you wish to have the Power of Law to deprive some regulators (presumably including Congressmen) of their job positions and pensions and benefits, let alone their their lives  [unquote].  And forcibly to be regulating the regulators  [unquote].

    TWFA, you seem to be all over the place, as well as self-contradicted.

    But perhaps I am misunderstanding the subtlety of your position.  (Possibly owing to my new moniker Dyslexic ~ although your joke would have been better if you had spelled it in the Greek Alphabet.)

    And yes, I would genuinely like to understand how you come to believe what you believe (and how you manage to justify it to yourself).  And no, I am not trying for salesmanship awards.

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  22. In my humble opinion, the above comments, and the press about SCOTUS rulings are naive. Many congressmen have limited knowledge about technical issues. Industry lobbyists are happy to step in and explain issues and help write legislation. This follows the example set in Nixon’s administration of big-ag writing the annual Farm Bill.


    Also, the idea behind Chevron Deference falls apart if the federal agency becomes corrupted by industry representatives. Read Poison Spring: The Secret History of Pollution and the EPA, written by a former EPA scientist

    As an aside, how many know that Neil Gorsuch is the son of Reagan’s EPA director, Anne Gorsuch? She bragged about not enforcing any environmental regulations. Neil was in high school when his mother was forced to resign.


    My suggestion---broaden your knowledge, Read Shock Doctrine by Naomi Klein and research neo-conservative economics. Read Democracy in Chains, read Dark Money. Research Milton Freidman, James Buchannan, Charles Koch. Watch Inequality for All and Citizen Koch.

    This stuff is important. The founding fathers knew the benefit of educated citizens but it is so much easier to adopt what your buddy at the water cooler thinks.

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  23. Oh, my. TWFA has continued his baseless accusations that regulators bear no consequences for their decisions. In previous comments, he used phrases such as "presumed infallible", "word of God", "masterminds", etc.  Now he is adding phrases such as "love regulation",  "regulators's interest", "activists", "sacred scrolls", etc.

    And he continues to assert the falsehood that public servants can't be fired, etc. I've seen public servants get fired. I've seen public servants in temporary positions not be renewed (effectively ending their employment). I've seen people working for government on contract where contracts are not renewed. And I've seen government programs get cut. TWFA's use of "never" does not hold water. (I have also known more than one government employee to lose their life in work-related activities.)

    TWFA says he's "not against regulation in the public interest," and "I simply want to make sure we are regulating the regulators". Yet I see nothing in TWFA's posts to tell us how he thinks such "regulation of the regulators" would occur.

    • Regulators must, by law, perform regulatory actions as prescribed in the enacting legislation. If they don't, they can - and will - end up in court to defend that. They don't get to just "make stuff up".
    • TWFA mentions "FOIA requests to see what pharma reps have been meeting with which regulators".  This goes to Regulatory Capture - where regulations get crafted in favour of a particular interest group. To quote the Wikipedia page I link to: the regulator "is co-opted to serve the commercial, ideological, or political interests of a minor constituency, such as a particular geographic area, industry, profession, or ideological group".
      • Who does most of this co-opting? Private industry, politicians funded by private industry, etc. Exactly the kind of people that TWFA seems to think should be "regulating the regulators".
      • There are industry-funded think tanks in the US (and other countries) that invest much time in supporting sympathetic politicians, and will literally provide them with draft legislation or regulations that favour their industry supporters. These people are not acting "in the public interest".
      • Politicians can be accused of many the bad things TWFA accuses government experts of: only interested in their own careers, how to keep their political funding, how to derive the most personal financial benefit, etc.

    TWFA: you issue a challenge on "salesmanship". That works two ways: we are not buying what you are selling. If you want to sell your view, you might start with the following:

    • Since you seem to dismiss any government-employed "expert" as corrupt (due to lack of accountability, it seems), explain exactly how you would modify the process of hiring and using experts within a framework where government plays a role in regulation.
      • If your answer involves the legislative or judicial branches of government, explain how those branches will employ "experts" that are not subject to exactly the same problems that you see in executive branch "experts".
      • If your answer involves moving government completely out of the equation, explain how your alternative ensures regulation in the public interest, rather than just private self-interest.
    • When it comes to "regulating the regulators", please explain how the people that are doing the second stage of regulation will meet the following needs:
      • Develop suitable expertise to be able to act as experts capable of judging the actions of the first-stage regulators.
      • Avoid the pitfalls of 'unaccountable regulators" that you are convinced saturate the group of first-level regulators.
    • Explain whether you think that the people "regulating the regulators" also need to be regulated. And if so, by who (and how they'll be different from the previous stages - i.e. not corrupted the same way.) Try to not end up in a "Turtles all the way down" loop.

    Basically, what is needed is some form of regulation that can be carried out with a minimum of influence by small special-interest groups. And that independent regulator, for scientific questions, needs to have suitable expertise. Handing the "regulation" over to people without the necessary expertise is not a good solution.

    To tie back to the OP, the Chevron deference was a decision that said that when the agency provided a reasonable interpretation of vague or unclear legislation, the agency is the most likely place to find suitable expertise.

    I don't expect TWFA will actually make any attempt to answer any of those questions - but maybe he'll surprise me.

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  24. DK_ID @ 22 brings up some interesting points. Yes, I was aware that Neil Gorsuch is the son of of an EPA director with a questionable history.

    On the subject of EPA directors, James Inhofe passed away recently. In my local paper, the headline described him as "a prominent denier of human-generated climate change". (He has a DeSmog entry on that subject.) He was a politician, not an EPA director, but the obituary talks about his role in recommending one of his proteges - Scott Pruitt - as Director of the EPA under Trump. (Inhofe had described the EPA as "a Gestapo bureaucracy".) In short order, many of Inhofe's former staff members were working at the EPA, and working hard to dismantle many environmental protections that had been established over the years.

    Pruitt had previously built a career suing the federal government over environmental regulations. Pruitt eventually resigned over ethics controversies, but Inhofe lobbied to get Andrew Wheeler appointed to replace him. Wheeler was a former coal lobbyist.

    Regulatory capture at its best. Why lobby when politicians are willing to give you the keys to the castle?

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  25. DK_ID... great points, I should have expanded on the revolving door problem, like the FDA receiving 2/3 of its funding from the very companies it regulates, so for a variety of reasons we should not be making assumptions about the purity and infallibility of the regulatory state and deferring to judgement and edicts by default.

    To assume that the lay people cannot grasp and distill complex areas of research, or more importantly suggest that the experts in the fields are not smart or skilled enough to do so for them sells both the citizens and the experts short, one should not assume that those with knowledge incomprehensible to others also possess judgement superior to others.

    If true, why don't we just dispense with juries of our peers when it comes to complex criminal cases involving medical and forensic scientists and/or trained and experienced criminal investigators, all on the governemt payroll, with defense experts disallowed due to a Chevron deferral, and have a jury of prosecution experts issue the verdict and be done with it. It's the way they did it for decades behind the Iron Curtain, still alive and well in China, Singapore and elsewhere, think of all the lawyers we could put out of business.

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  26. I don't mean to dogpile, but I find the turn that this argument has taken quite intriguing, especially this bit about aircraft design, manufacturing and certification: "if an accident results from flawed design, manufacture or operational procedure only the private sector participants pay the price, the regulators who type, production and airworthiness certified the equipment pay no price." If this was the incentive structure, one has to wonder why title 14 of the Code of Federal Regulations is so thick and contains such stringent rules about these subjects. In fact, "the price" that people pay is exactly the reason why regulations and their strict enforcement are very much needed in this particular area, a strange argument coming from someone who seems so opposed to the very idea of a regulator.
    It appears to be a swipe at the FAA for allowing Boeing to fool them in the miserable 737Max fiasco, and if so, it is the most underhanded turning of the world on its head that one could ever think of. It is the equivalent of the abuser telling the victim "look what you made me do!"

    The certification process for an aircraft is notoriously throrough, long, difficult, and has been an object of constant complaining from many "private" actors in the aviation industry for decades. Some have argued, rightfully in some cases, that it stifles innovative designs and slows down progress, although that is probably more true in the general aviation sector. Nonetheless, the level of safety that has been achieved by this industry is truly remarkable. It is owed in large part to the efforts of regulators and to the sincere cooperation between industry and regulator, at least back in the days when industry had principles. Everyone (outside of McDonnell Douglas) knew that these pesky regs have been bought by blood, and that they pay dividends in saved lives on the long run.

    Fast forward: Boeing realized they did not have a suitable airplane to compete with Airbus. Instead of designing one, they attempted to iterate yet another reincarnation of their 1960's worhorse. It is now well known that the short legs of "Fat Albert" (the 737's nickname) were a problem, that could only be adressed by potentially dangerous design compromises. They probably would have done better using he 757 as a basis, but that is another story. The solution was one from the modern world: flight envelope protection software. However, the essentially new flight characteristics would normally mandate crews to be retrained into a full new type rating, because of, you know, pesky regulations. The ubiquitous Airbus cockpit, consistent flight characteristics and control laws make it very easy for crews to transition from one airplane to another, requiring minimal expenses for transition. So, to get the same benefits, the software was made "silent" and the full extent of its scope and role was essentially hidden from the regulator. This was made easier because Boeing had prepared the terrain by convincing the FAA to let them do their own self certification of a lot of subparts of the process. Kinda like an airframe and powerplant mechanic doing all the tasks involved in an annual inspection and then having an Inspection Autorized A&P review the work and do a quick examination of the plane before signing the books. This can work, when high levels of integrity are maintained.

    For Boeing, this self policing did not work. That was clearly demonstrated in the years following type certification. Boeing took it as license to make bucks on the back of quality and safety, and that's exactly what they did. Incidentally, it led to more scrutiny and the full extent of the company's decay was revealed.

    So, indeed, a flawed design was allowed by the regulator to hit the market, because the regulator was convinced to let the designer self discipline. Faulting the FAA is like saying: "this is your fault because you should have known we were crooks, despite all the clever arguments we used to convince you we weren't." Hardly a case for less stringent regulations and enforcement.

    As for this bit "only the private sector participants pay the price." It really does not apply to all private participants. Dave Calhoun, as private a participant as there was in this sad story, presided over the final blows to a once exemplary and legendary aircraft maker, that was the envy of the World. He never put forth even the slightest attempt at changing direction. His price to pay? Walking away with 30 million dollars of severance, give or take (published umbers vary).

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  27. Phil, who in the FAA was fired or lost their career or life for "allowing Boeing to fool them in the miserable 737Max fiasco"?

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  28. TWFA @ 25:

    Ah, yes. The good old "if they're such experts then why can't they explain it to morons?" argument. I'm sorry, but I've spent 45 years learning about climate, and I'm still not finished, and when I run into someone like you - that has steadfastly refused to learn much of anything during your time spent here at SkS - I don't think you have a good argument for "the average Josephine can always learn enough" to be able to deal with a lot of complex decisions.

    Court cases depend on the judge or jury deciding "which experts do I believe?", and that belief is not going to be related to the jurors learning enough science in a highly specialized area to be able to understand and analyze the science itself.

    In the U.S. a lot of time is spent is screening potential jurors to avoid people with obvious bias and inappropriate background. Lawyers are always in search of jurors that they think will actually listen to the evidence and be able to come to a logical conclusion. (Unless, of course, they have no case, at which point they want jurors they can bamboozle.) This takes much time and money. It is not an efficient process.

    Do you really think that hundreds - no, thousands - no, probably tens of thousands - of regulatory decisions can be made in a reasonable time frame by having a court case for every one? Trials should be the last place to try to decide anything of this sort. A functioning regulatory structure is needed so that most of these decisions can be made in a reasonable length of time.

    You said you were (maybe still are) a pilot. Do you really think that the decision of whether or not you should get a pilot's licence should be made by a jury? When I got my licence, I had to do a flight test with a qualified examiner. If I had not passed, I would not have expected to have the right to a jury trial, where the examiner presented his evidence, and I presented mine, and a jury made the decision.

    You keep ignoring the fact that the Chevron deference decision was not a dictum that the agency was always right. I quoted the OP in comment #9: "if Congress is silent or unclear, then the court should defer to the agency’s interpretation if it is reasonable".  If the agency's interpretation is unreasonable (in the court's view), the agency loses. The plaintiff opposing the agency has the opportunity to refute the agency's argument and try to show that it is unreasonable. The deference applies when the law is unclear, and the agency is considered to be "innocent until proven guilty". You, on the other hand, have clearly decided that the agency and it's experts are guilty, and no evidence will every get you to change your mind.

    Time will tell if the courts end up rejecting a huge number of agency regulatory decisions as a result of this Supreme Court decision. Rest assured that the people that can challenge things in court will be the rich industry people, not the small individuals. The power shift is not headed in your direction.

    I'm still waiting for answers to the questions I asked in comment 23.

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  29. TWFA @ 27:

    You're asking the wrong question. It should be:

    Who in the FAA was fired or lost their career because they argued that Boeing should not be allowed to self-police?

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  30. TWFA, you are making my point better than I could do myself.

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  31. Phillippe @ 26: "In fact, "the price" that people pay is exactly the reason why regulations and their strict enforcement are very much needed in this particular area,"

    I have spent time dealing with government procurement of meteorological sensors. For larger contracts, a bidding system is required. Many people complain about the complexity of the bidding process, but one of the main reasons for that complexity is because you need to be very careful about all the specifications.

    Why? Because  you know that there are vendors that will lie and cheat and steal and be dishonest about their product in order to win the bid. And once they have a contract, they know the government will have to pay them - because the product "met the specs" - even if it turns out that the product is a piece of $#!^,

    Same thing with regulations. If you say "that factory cannot release waste water containing more than 1g/L of arsenic", they'll just add more water to the arsenic mix until is "passes". You need to specify absolute amounts that can be released, regardless of dilution levels, if the river's ecosystem if affected by the total, not the dilution.

    When high levels of integrity exist, nobody needs lawyers.

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