Over the last four decades, Chevron was cited 70 times in Supreme Court opinions, nearly 2,000 times in lower court opinions, and in more than 40,000 administrative law cases. Chevron has been called the most cited court case in American history. The end of Chevron deference is an earthquake that will be felt in all three Branches of government. It will also be felt throughout the private sector, particularly the most regulated industries. 

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No industry is more regulated than the energy industry. According to a study from the Mercatus Center at George Mason University, three of the 10 most regulated industries include petroleum and coal products manufacturing, electric power generation, and oil and gas extraction. 

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In the wake of Loper, there will likely be a near-term increase in legal challenges to recent environmental regulations. Hundreds of billions of dollars’ worth of impact on our economy are at stake.

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Administrative challenges are subject to a six-year statute of limitations. And while the Loper ruling makes pains to say that it does not overturn the cases that have cited Chevron, it does open up the Biden agenda—and that of future presidents—to a greater likelihood of legal challenge. For example, this includes the Biden Waters of the United States rule, fuel economy standards, and the Biden-era Clean Power Plan, all of which must be shown to be authorized by statute. 

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The Chevron case itself came about because of a challenge under a vague environmental law passed by Congress. In 1981, the Reagan Environmental Protection Agency issued a rule reinterpreting a provision of the Clean Air Act. The Court upheld the revision of the rule as permissible even though the Court acknowledged that it was not clear if the EPA's specific legal interpretation had been intended by Congress.

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During the Chevron era, environmental activists and lobbyists were highly effective in using this deference to their advantage in the absence of Congressional action. Neither the Clean Air Act, the Water Quality Act, nor the Hazardous and Solid Waste Amendments Act have been amended in more than 30 years. Congress hasn't updated the Endangered Species Act in half a century. Nevertheless, despite a lack of action by Congress, environmental regulations have greatly increased over the same period, with the EPA alone promulgating more than 100 rules having more than $200 million in environmental impact each.

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With the overturning of Chevron, the obligation to set climate policy now will shift toward Congress. Activists and lobbyists on both sides of the debate will have to turn their attention to the other end of Pennsylvania Avenue. Environmental laws that are considered vague may have to be clarified in order to prevent legal challenges to implementing regulations. Lawmakers will have to take greater, more direct responsibility for enacting environmental protections. This dramatic shift of power will require a rethinking of how we regulate the environment.

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To learn more about the Balancing Act Project and join the conversation, email info@balancingactproject.org

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Steven Stafford is a Principal at SJS Consulting and a former House, Senate, Department of Justice, and White House staffer.