July 01, 2024

Howard A. Learner

Supreme Court’s Loper Decision Is a Lemon

The decision puts Americans at risk of losing vital environmental and public health protections

This Chicago Sun-Times editorial is right on target: “Supreme Court’s power grab puts ordinary Americans at risk in countless ways… The court overturned another decades-old precedent, the Chevron deference” which provided for judicial deference to administrative agencies’ expertise. “Opponents of all kinds of regulations meant to protect ordinary Americans will now be able to tie up proposed rules in court for years.” The editorial quotes me as pointing out: “It means the agencies will be in an endless litigation quagmire.”

On Friday, June 28^th, the extremely judicial activist Roberts Court issued its Loper Bright Enterprises v. Raimondo case, which, by a 6-3 majority, overruled the longstanding Chevron standard for judicial review and its 40 years of case law precedent. In doing so, the Supreme Court majority fundamentally re-allocated the balance of constitutional authority to the federal judiciary and away from the executive and legislative branches. The effect of the Supreme Court’s decision will be to create more litigation, and to stall, delay and undermine federal agencies’ responsible actions to protect the environment by regulating air and water pollution, protect public health by regulating drugs, better ensure consumer product safety, and protect mineworkers’ health and safety, among other things.

The Supreme Court’s Loper opinion, however, is a double-edged sword. ELPC attorneys will be affirmatively raising Loper in cases such as our pending litigation on behalf of community Plaintiffs Alliance of the Southeast and Friends of the Parks challenging the U.S. Army Corps of Engineers’ misguided proposal to build a towering new toxic dredged waste dump along the Lake Michigan shoreline in Chicago’s Southeast Side environmental justice community. The new Loper decision is contrary to the Defendant Army Corps’ argument that the agency’s decisions are entitled to judicial deference.

We will also explore ways for Midwest states to utilize state constitutional provisions such as Article XI of the Illinois Constitution, which provides for a “right to a healthful environment,” in order to provide more protections for the public’s interest through regulatory safeguards.

ELPC and other public interest attorneys will be working to make some lemonade out of lemons; however, let’s recognize that this new Supreme Court decision is, indeed, lemons.