Tell me about despair, yours, and I will tell you mine.
Meanwhile the world goes on. – Mary Oliver

October Term 2023 ended with a bang. Chevron deference is no more, a gaping hole has been carved into the APA’s statute of limitations, and the Court has once again halted an EPA regulation mid-litigation. This is, to understate matters considerably, a dreary time for people who care about the functioning of our administrative agencies. And it is a doubly dreary time for the millions of hardworking scientists, policy experts, support staff, and lawyers who work for federal agencies and represent them in court.

Legal scholars have already articulated many causes for concern stemming from these latest precedents, among them the new wave of anti-regulatory litigation that is already gathering force. Many of these concerns are well founded. But as clinical academics who recently left careers as appellate attorneys in the Justice Department’s Environment and Natural Resources Division, we write to offer some thoughts on DOJ and agency response.

We believe that the doomsday stories that garner the most media attention don’t tell the full story. They overlook the fact that a wave of litigation, while unwelcome, is ultimately just that: litigation. Powerful legal tools remain available to agencies and their advocates, and some of those tools were strengthened this very term. Agencies don’t need Chevron deference to succeed in litigation and, in fact, have succeeded without it for years now. Finally, no one should underestimate the strength and capacity of the agency employees and DOJ litigators who, while perhaps overwhelmed, remain strategic and capable. 

To be sure, agencies are in the crosshairs. And the “tsunami of lawsuits” Justice Jackson predicts in her Corner Post dissent will be unwelcome for already overburdened and under-resourced agencies. But we also anticipate that some litigants will try to overplay their hands, inadvertently creating precedents that will come back to bite them. In this sense, the wave is both a burden and an opportunity.

The Court’s latest standing opinions also provide a useful framework to nip meritless suits in the bud. Press the new round of anti-regulatory litigants to demonstrate that the future injuries they allege are certainly impending. Force them to show that their harms are concrete and caused by the actions under review. And make them proffer facts to support their allegations of injury. These measures effectively distinguish cognizable claims from mere grievances. As the Court put it in Murthy v. Missouri, “standing doctrine prevents us from exercising . . . general legal oversight of the other branches of Government.” Good. The lower courts must be held to that same standard.

We have also already seen parties file letters asking courts to vacate and remand agency actions in cases where Chevron deference was never raised or briefed. Given some of the rhetoric surrounding the end of Chevron, who can blame them for trying a bold approach? But responses can and should bring this rhetoric back to earth. They can reiterate why agencies can win without Chevron deference. Fortunately, government agencies and litigators have been preparing for and making these arguments for years. We also anticipate that, despite the opportunity Loper Bright presents for bold judges to act as agency experts, many judges will be reluctant to assume that responsibility—especially in the face of settled expectations. Several recent posts (here and here) examine doctrinal reasons for this sort of optimism. 

Indeed, experience already shows that agencies do not need Chevron deference to win. Take the D.C. Circuit’s recent opinion in Earthworks v. U.S. Department of the Interior, for example. There, the court conducted a fine-grained analysis of a provision of the 1872 Mining Law and concluded, after studying the provision’s text, grammatical structure, history, and related provisions, that the agency had the better reading. Or consider Idaho Conservation League v. Bonneville Power Administration, where the Ninth Circuit, using a similar approach, agreed with Bonneville’s interpretation of the Northwest Power Act and expressly disclaimed any need to consider formal deference doctrines in doing so. Plus, most agency actions subject to judicial review are non-regulatory and therefore subject to other deference doctrines, which remain intact. The Ninth Circuit’s recent opinion in Natural Resources Defense Council v. Haaland articulates several. 

We also do not take lightly the possibility that the latest cases will further embolden forum shopping. If that is so, we may still see some hope on the Hill. Perhaps these attempts will enhance existing bipartisan efforts to curb this practice. Or maybe even the Court itself will step in. The government’s recent cert petition in EPA v. Calumet Shreveport Refining, LLC, presents such an opportunity. In any event, we can also take some comfort in knowing that judicial behavior is not always predictable and that forum shopping is not always rewarded.

This brings us to our final point: the role and importance of the federal employee. Every day these employees work to protect human health, the environment, and the consumer. They work to dutifully implement legislation. The rhetoric alleges they are power-mad bureaucrats. But that was not our experience. To the contrary, we saw most agency personnel demonstrate a sober commitment to their agency’s mission as set forth by Congress. David Foster Wallace ably summarized agency work in his posthumous novel, The Pale King: “True heroism is minutes, hours, weeks, year upon year of the quiet, precise, judicious exercise of probity and care—with no one there to see or cheer.” This is a hard time for civil servants. But if our government is to faithfully and energetically do the work that has been entrusted to it, civil servants are more important now than ever. 

Andrew C. Mergen is the Director at the Emmett Environmental Law & Policy Clinic at Harvard Law School.

Sommer H. Engels is a Clinical Instructor at the Emmett Environmental Law & Policy Clinic at Harvard Law School.