Chevron Began as a Win for Reagan's EPA, Which Makes Its Fall So Ironic

If you want to know how a legal doctrine really works, ask who it helped on the day it was born. Then ask who it helps now. When the answers are different people, you have found a story.

Chevron is that story. Today the name is shorthand, on the right, for everything wrong with the administrative state: unelected bureaucrats, judges who bow to them, and an executive branch that reads ambiguity as a blank check. The doctrine was overruled in 2024. Conservatives cheered. But Chevron was not born in a Democratic administration. It was born in a case that the Reagan administration won, over the objections of environmental groups, and for years it was a conservative's friend. The history matters because it shows that the fall of Chevron was not a partisan flip. It was a change of mind about a principle, and the principle was one conservatives had held all along.

The setup: the Clean Air Act and the bubble

The Clean Air Act Amendments of 1977 required states with air that did not meet federal standards, called nonattainment areas, to adopt permit programs for any "new or modified major stationary source" of air pollution. A permit required strict controls and a demonstration that the new source would not worsen air quality.

The phrase that matters is "stationary source." What is a source? Is it each smokestack, each machine, each pollution-emitting device? Or is it the whole plant, treated as if it were under a single dome?

Under the Carter administration, the EPA's rules for those areas read the term to mean each device. Under that approach, a plant that wanted to modify one piece of equipment had to get a permit for it, even if the plant was reducing pollution overall. In 1981 the Reagan administration's EPA, under Administrator Anne Gorsuch, changed the rule. It adopted the "bubble concept" for nonattainment areas: a plant could be treated as a single source, with an imaginary bubble over it, so that a change to one device did not trigger the permit program so long as the plant's total emissions did not increase.

The argument for the bubble was economic and also environmental. A plant could upgrade its equipment, reduce emissions where it was cheapest to do so, and avoid the delay and expense of a new permit. It was the kind of flexible approach that deregulators liked. The Natural Resources Defense Council sued. The D.C. Circuit, in an opinion by then-Judge Ruth Bader Ginsburg, set the rule aside, concluding that the bubble was inappropriate in a program designed to improve air quality. Chevron U.S.A., an oil company that backed the rule, was the first-named petitioner in the Supreme Court. The case is therefore Chevron U.S.A. Inc. v. Natural Resources Defense Council, and it was argued as a fight between a deregulating administration and an environmental group.

The decision

On June 25, 1984, the Court reversed. The vote was 6 to 0. Three justices, Marshall, Rehnquist and O'Connor, did not take part. Justice John Paul Stevens, who was no one's idea of a conservative firebrand, wrote the opinion.

He set out a two-step approach that every law student has since memorized.

1. Step one. Has Congress directly spoken to the precise question at issue? If the intent of Congress is clear, that is the end of the matter. The court and the agency must follow it.
2. Step two. If the statute is silent or ambiguous on the question, the court does not impose its own reading. The question is whether the agency's answer is based on a permissible construction of the statute.

The justification was institutional. When Congress leaves a gap, Stevens wrote, it is, in effect, a delegation of authority to the agency to fill it. The agency has expertise, a continuing relationship with the program, and accountability to the President, who answers to the voters. A judge, by contrast, is not part of either political branch. "Judges," the opinion observed, "are not experts in the field, and are not part of either political branch of the Government." Choosing among reasonable policy options is not the court's role.

Notice who this helped on June 25, 1984. It was the Reagan EPA, which had loosened a regulation, and it was a victory against a liberal court of appeals. For the administration, and for conservatives who distrusted activist judges, this was the doctrine of judicial restraint. Judges were told to keep their policy preferences out of the way.

The conservative case for deference

In the following years, a surprising number of leading conservatives defended Chevron as a conservative principle. It is worth stating their argument fairly, because it was not foolish.

1. It limits judges. The great conservative complaint about the courts in the 1960s and 1970s was that judges were making policy. Chevron told them to stop, at least in the field of agency law.
2. It puts policy choices with the accountable branch. An agency answers to the President, who answers to the voters. A judge answers to no one. If a statute leaves room for policy, better that the policy be made by someone who can be voted out.
3. It brings uniformity. Without a deference rule, different circuits could read the same statute differently and a rule could mean one thing in Texas and another in Vermont.
4. It reflected the way Congress writes. Congress knows that statutes are often ambiguous, and in many cases it expects the agency to resolve them.

Justice Scalia was the doctrine's most important conservative champion. In a 1989 lecture and article in the Duke Law Journal, "Judicial Deference to Administrative Interpretations of Law," he argued that Chevron was a better background rule than the case-by-case approach that preceded it. He argued that Congress now legislates knowing that the ambiguity it creates will be resolved, within the bounds of permissible interpretation, by agencies and not by courts, and that a clear background rule is better than a murky one. For years, Scalia's was the conservative view.

How the doctrine grew

A narrow rule became an expansive one. This is the part of the story that people on both sides tend to skip.

Chevron itself involved a reasonable agency reading of a technical term. The opinion did not announce a revolution. But lower courts began to apply it to everything. They deferred to interpretations adopted for litigation, to interpretations that changed from one administration to the next, and to claims of authority over huge parts of the economy.

Three developments sharpened the problem.

• Brand X (2005). In National Cable & Telecommunications Association v. Brand X Internet Services, the Court held that an agency's reasonable reading could override a court's earlier interpretation of the same statute. A statute's meaning, in effect, could change when a new administration came in, and a court's own precedent could be displaced by the agency.
• The Auer line. A parallel doctrine required deference to an agency's reading of its own regulations, which meant that the agency that wrote a vague rule also got to say what the rule meant.
• The pace of regulation. Agencies discovered that an ambiguous statute from decades earlier could support new, far-reaching rules. The rule was supposed to apply to gaps. It was being applied to ambition.

The doctrine's defenders will say that courts did not apply Chevron mechanically. In United States v. Mead Corp. (2001), the Court said deference applies when Congress has delegated authority to make rules with the force of law and the agency acted in that capacity, and in the major cases the Court sometimes skipped it. The criticism, nonetheless, was that Chevron had become a presumption of victory for the government in every ambiguity, and that litigants and judges knew it.

Why conservatives changed their minds

The change came in stages and for several reasons. I will give the intellectual reasons first, then the practical one.

The text of the Administrative Procedure Act. Section 706 of the APA, enacted in 1946, says that "the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." Critics noticed that the statute tells courts to decide questions of law, and Chevron told them in some cases to hand the answer to the agency. It is hard to read "shall decide" as "may defer."

The separation of powers. The Constitution vests the judicial power in the courts, and Marshall's formulation in Marbury was that "it is emphatically the province and duty of the judicial department to say what the law is." A rule that tells a judge to accept the executive's reading of an ambiguous statute looked to many like a transfer of the judicial function to the executive. Add the legislative side: when Congress writes ambiguity, it passes the decision to the agency, and nobody who is elected has made it.

The change in the judges. Justice Thomas wrote in 2015, in a concurrence in Michigan v. EPA, that Chevron deference raised serious separation-of-powers questions. Then-Judge Neil Gorsuch, writing in 2016 in a concurrence in Gutierrez-Brizuela v. Lynch on the Tenth Circuit, argued that Chevron and Brand X had allowed the executive to bind the public with its own readings of the law, and that this combination was an abdication of the judicial duty. He went on to say that the doctrine let an agency change the rules from administration to administration, which undermined the stability that the rule of law demands. It is a detail of history worth keeping in mind that the judge who wrote that opinion is the son of the EPA administrator who adopted the bubble rule in 1981. Gorsuch's mother, Anne Gorsuch, resigned from the EPA in 1983. The family relationship has no bearing on the law, but it makes a good illustration of how complex the history is.

The practical reality. Conservatives had come to see that deference was a one-way ratchet. It helped the Reagan EPA in 1984. It helped the Obama and Biden administrations far more often, because the biggest regulatory ambitions in recent decades were liberal ones. And when a conservative administration took office, it found that it could use the same ambiguity to reverse its predecessor, which produced policy whiplash and uncertainty. A doctrine that lets each administration redefine the law is a doctrine of instability. The conservative principle of predictable law pointed against it.

The fall: Loper Bright

Loper Bright Enterprises v. Raimondo, decided on June 28, 2024, concerned a rule requiring herring fishermen to pay for the observers on their boats, a cost the statute did not clearly authorize. The Court, in an opinion by Chief Justice Roberts, held 6 to 2 (Justice Jackson took no part) that the APA requires courts to exercise independent judgment about what a statute means, and that Chevron is overruled. A companion case, Relentless, Inc. v. Department of Commerce, was decided the same day by 6 to 3.

Three points about the holding are often misreported.

1. Agency expertise still counts. Courts may give "respect" to an agency's reading, in the manner of the older Skidmore rule, based on the thoroughness and persuasiveness of its reasoning. But they are not bound by it.
2. Express delegations remain. When Congress explicitly gives an agency discretion, for example by authorizing it to act as it finds "appropriate" or to define a term, the court's job is to see that the agency stays within the boundaries of that delegation. That was always so.
3. Past cases stay. The Court said that prior cases decided under Chevron are still good law. The holding does not reopen them, because statutory stare decisis has special force. The decision applies going forward.

Justice Kagan, joined by Justice Sotomayor, and in Relentless by Justice Jackson, dissented. Her objection was the one the doctrine's defenders had made for forty years. Agencies have expertise and judges do not, and when a statute is ambiguous in a technical field, it is better to let the experts decide, and the Court, she wrote, had given itself the job of resolving policy questions. It is a serious objection. The answer is that when a statute is ambiguous, judges have been resolving ambiguity since Marbury. That is the job. Interpreting statutes is what courts are for, and in cases between citizens, where ambiguity is resolved by a judge who has no stake in the outcome, the reading has more claim to be the law than one chosen by a party to the dispute.

The irony, and the lesson

The irony is that Chevron was a conservative victory that turned into a conservative grievance, and the reason is neither hypocrisy nor opportunism. It is that principles are tested by how they work over time. A rule of deference sounds like restraint when your side holds the agencies. It sounds like surrender when the other side does. The honest conservative position is the one that holds in both cases: the executive is not the judge of its own power.

There is an even better lesson for anyone who likes to see the arguments in order. The same people who defended deference in 1989 and the same people who rejected it in 2016 were applying the same value, which is that power must answer to law, and the difference was what they had learned about how the doctrine operated. That is not inconsistency. That is what it looks like to change your mind on the evidence.

If you want the companion stories, The Major Questions Doctrine Explained, From Tobacco to the Power Plants tells how the Court restrained agencies on the largest questions, and The Sick Chicken Case of 1935 and the Doctrine That Could Rein In Agencies tells the deeper story of Congress and its lawmaking power. The Court's reasons for overturning its past are set out in Stare Decisis Explained, and the Factors Justices Weigh Before Overruling and a list of such cases appears in From Plessy to Chevron, a Timeline of Precedents the Court Was Right to Overrule. For the argument that the judge's role is to say what the law is, read Marshall Gave Up William Marbury's Commission to Win the Bigger Argument.

The case in brief

1. Chevron v. NRDC (1984) upheld the Reagan EPA's bubble rule by a 6 to 0 vote and told courts to defer to reasonable agency readings of ambiguous statutes.
2. Conservatives defended deference for years, as a check on activist judges and a way of giving policy to the accountable branch, and Scalia's 1989 lecture was the best statement of that case.
3. The doctrine grew into a presumption in favor of the government, with Brand X letting agencies override courts, and critics, including Thomas and Gorsuch, came to see it as a violation of the APA and of separation of powers.
4. Loper Bright (2024) overruled Chevron by a 6 to 2 vote, with a companion case decided 6 to 3, left courts free to give agencies "respect," and left past cases standing.
5. The lesson is that a principle has to hold when the other side is in power, and that changing your mind on the evidence is not hypocrisy.

What you can do: read Section 706 of the Administrative Procedure Act on Congress.gov, then pick a pending rule from the Federal Register and ask which statute it relies on.