Lignite Energy Council

Last week the #SupremeCourt decided a case, Loper Bright Enterprises vs. Raimondo—that overruled a longstanding decision that created what is now referred to as the #ChevronDoctrine. This reversal will lead to significant changes in the process by which energy policy—and all policy, really—is made. The early reaction to this decision demonstrates that fundamental misunderstandings are clouding the truth of what this decision means, and if it is “good” or “bad” while illustrating why I have long argued that Congress should lead more clearly and aggressively on energy policy. (example: https://lnkd.in/g__yNCTc) Ironically, the #Chevron case from which the doctrine comes was actually widely reviled by environmental groups when it was first decided. The Supreme Court issued a decision in favor of Chevron—the very embodiment of “Big Oil”—and thereby gave President Reagan’s agencies an incredible amount of leeway in how they implemented laws that Congress had passed. The summary you’ll see most often declares that the decision allowed federal agencies to resolve ambiguities in the law as they best see fit because those agencies have the capability and bandwidth to employ experts and rely upon them. The case decided last week, #Loper, reverses that decision and reduces the agencies abilities to interpret ambiguities. Critics of this decision may refer to this as a “power grab” by the Courts although it is nothing of the sort. The critical flaw with such knee-jerk analysis creates a straw man or false dichotomy now being debated: “because Loper tells agencies they can’t resolve ambiguities, therefore the courts must do so”. This sets up a false dichotomy between what should be seen as two untenable alternatives. Structurally, such an argument glosses over what is at stake—an ambiguous law. Ever since Marbury vs. Madison things have been quite clear: if the law itself is unclear, the courts interpret laws. The shift comes once a law has been found unclear—who gets to fill in the blank? The “power grab” complaint supposes that if statutory ambiguities become so large as to make the meanings unclear, because use agencies can no longer fill in those particular gaps as they please, the Courts must step in and do so. (Hence the discussion and misdirection about experts.) Such an outcome is no better than Chevron. This should be described not as the courts “grabbing legislative power” from the Executive branch agencies, but instead as a massive “power shift” on matters of policy back to the Legislative Branch. Where it belongs. Simply, if the law is not clear, Congress needs to make clearer laws. I'll post the rest of the editorial in the comments or here on the Lignite Energy Council website. https://lnkd.in/gMdyFbFr