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Wyoming pols celebrate Chevron’s fall. It might not be the win they think.

The ruling doesn’t deliver a clear path to victory, for any interest, on wildlife and energy issues, attorneys and observers tell WyoFile.

The U.S. Supreme Court building at night in 2020. (Wikimedia Commons)

by Mike Koshmrl and Dustin Bleizeffer, WyoFile

The U.S. Supreme Court’s ruling Friday that overturned the landmark “Chevron doctrine” may give Wyoming an advantage when mounting court challenges for and against federal regulations and actions on issues ranging from wildlife and land management to energy development and industrial emissions.

Gov. Mark Gordon and Wyoming’s congressional delegation have hailed the ruling as a clear legal advantage in fighting federal agency actions they don’t like. But the ruling doesn’t necessarily hand Wyoming — or anybody else who sues federal agencies — a clear path to victory in court, according to several Wyoming and out-of-state observers.

Wyoming has much at stake. Forty-eight percent of the land and 68% of the mineral estate are managed by the federal government and the Equality State has many active grievances against federal agencies now active in the courts. Since 2019, Gordon’s administration has initiated or participated in at least 57 lawsuits either challenging federal natural resources policies, or defending federal positions from litigation brought by public health and conservation groups, according to a list of lawsuits his office provided to WyoFile.

The Chevron doctrine

The Chevron doctrine, established by a 1984 Supreme Court ruling, instructed lower courts to defer to the expertise within agencies like the Bureau of Land Management, Environmental Protection Agency and U.S. Fish and Wildlife Service in their interpretation of carrying out laws passed by Congress. Those laws — like the Endangered Species Act and Clean Air Act — frequently do not reach into the weeds on scientific matters such as what qualifies as critical habitat or measuring ambient air quality, for example.

Under Chevron, deference to federal agencies’ interpretation wasn’t automatic, but applied when an agency attempted to reasonably interpret an ambiguous statute.

Environmental Protection Agency Administrator Michael Regan talks with a reporter Aug. 9, 2023 while visiting the University of Wyoming School of Energy Resources. (Dustin Bleizeffer/WyoFile)

Now that the doctrine is overturned, courts may make their own interpretation of congressional intent. But that still won’t erase decades of case law, or statutory precedent, much of which is based on those agencies’ past interpretations and court actions, observers say.

“I think [courts are] going to struggle with it because they don’t have subject-matter expertise in these very intricate, technical aspects of the everyday life of an agency,” Sheridan-based landowner advocacy group Powder River Basin Resource Council Attorney Shannon Anderson said. 

Political reaction

Gordon, however, hailed what he described as a “victory for common-sense regulatory reform.”

Gov. Mark Gordon testifies before the House Committee on Natural Resources on June 15, 2023. (Gov. Mark Gordon’s office) 

“For years, unelected bureaucrats running federal agencies in Washington D.C. have used [Chevron] ‘deference’ as an excuse to target certain industries based on politics,” Gordon said in a prepared statement Friday. “Wyoming has experienced that firsthand. Limiting their power to overreach is cause for celebration, and this ruling begins that process.”

While not a party to the suit, Wyoming filed an amicus brief in the Supreme Court case Loper Bright Enterprises v. Raimondo, which was the basis for overturning the Chevron doctrine. Sen. Cynthia Lummis (R-Wyoming) and Rep. Harriet Hageman (R-Wyoming) also signed on to another amicus brief in the case.

U.S. Sen. Cynthia Lummis (R-Wyoming). (U.S. Senate Photographic Studio/Courtesy)

“I applaud the Supreme Court’s decision to restore decision-making power back to democratically-elected members of Congress just as our Founding Fathers intended rather than allowing D.C. bureaucrats to rule with an iron fist,” Lummis said in a prepared statement.

“Today’s Supreme Court ruling is a major victory for getting Washington out of Wyoming,” Sen. John Barrasso (R-Wyoming) said in a prepared statement. “For too long unelected, unaccountable Washington bureaucrats have gone unchecked.”

Other parties who’ve tracked efforts to overturn the Supreme Court’s 40-year-old precedent aren’t so sure that it’s a clear-cut victory for industry-aligned conservative western states like Wyoming that often rail against federal regulation.

A smaller victory?

“I don’t think there’s been a lot of really deep thinking on their side about what [the loss of Chevron] actually means,” said Brett Hartl, an attorney who heads government relations for the Center for Biological Diversity. “They almost were captured by their own ideological premise more than factual reality.”

It’s possible, he said, that the court’s decision will ultimately have the effect of strengthening some environmental laws, though it could be “many years” before the true consequences are made clear.

“Some laws — like the Endangered Species Act — are actually very clear and very strong and have a very obvious meaning,” Hartl said. “Myself … and other organizations would actually argue that, if anything, the Fish and Wildlife Service has interpreted the [Endangered Species Act] weaker than what the law actually requires.”

A pronghorn sizes up an intruder in its habitat within the confines of a Sublette County gas field in 2023. (Mike Koshmrl/WyoFile)

As courts, instead of federal agencies, take more of a role interpreting environmental statutes, the strengths of the laws themselves may become more important, he said. To illustrate the point, Hartl compared the National Forest Management Act with the Federal Land Policy and Management Act. The former, which is considered a stronger law, governs U.S. Forest Service lands while the latter, perceived as weaker, has bearing on Bureau of Land Management property. 

“So the loss of Chevron may make it easier to have protections for Forest Service lands than BLM lands,” Hartl said.

No immediate effects

Dessa Reimer, a Jackson-based attorney with Holland and Hart, does not foresee “immediate” on-the-ground changes in Wyoming stemming from the high court’s decision. The Chevron standard of review, she pointed out, does not necessarily implicate most federal agency permitting and decision making. 

“For example, the Converse County Oil and Gas Project or Chokecherry Wind or the BLM’s Rock Springs RMP: Those aren’t notice-and-comment rulemaking, so when someone challenges those types of agency decisions, Chevron deference was not applied,” she said. 

The immediate effect, Reimer believes, relates to how courts review agency rulemaking. “And there has been a slew of agency rulemaking under the Biden Administration coming out this year that’s already been challenged,” she said. 

The BLM’s Public Lands Rule is one example. The measure, which puts land conservation on even footing with other land uses, has been targeted by Wyoming and Utah in a legal challenge

Bureau of Land Management Director Tracy Stone-Manning poses in Casper in 2022. The BLM’s Public Lands Rule could be more vulnerable to being challenged now that the U.S. Supreme Court has overturned the Chevron doctrine. (Katie Klingsporn/WyoFile) 

Typically, federal agency rules and actions swing wildly between Democratic and Republican administrations: The EPA’s stance on regional haze and the BLM’s direction on federal coal leasing in the Powder River Basin are prime examples. But within the Supreme Court’s new ruling overturning the Chevron doctrine is the notion that courts might equalize those wild administrative swings in policy direction, according to University of Wyoming College of Law Professor Sam Kalen.

“What SCOTUS did say is, where there has been what’s called statutory precedent that had a court already affirming an interpretation, under a deference standard or not, the court said, ‘We’ll still likely give that stare decisis precedent,’” Kalen told WyoFile. “So it doesn’t automatically mean that all those old cases justify revisiting.”

A lot of litigants will try, however.

“I guarantee you that litigants are going to try to revisit a lot of cases now,” Kalen said. “The way I look at it is as a threat to the administrative state.”

This article was originally published by WyoFile and is republished here with permission. WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.