Our Post-Loper Bright Strategy: More Policy Expertise

By Jim Mathews / President & CEO

It has been 36 days since the Supreme Court decided to gut agency experts’ ability to regulate, throwing out the four-decades’ old Chevron doctrine deferring to agencies’ technical expertise and potentially making it harder for the Federal Railroad Administration and the Surface Transportation Board to look out for passengers’ interests.

A lot of us who work daily in and around agencies have been trading texts, emails, and thoughts about how we all move forward in the wake of this startling 6-3 ruling issued June 28. I shot a text to one of my previous professors with a particular interest in Administrative Law, and got back a mordant message that their entire semester course on the subject might need to be trashed.

As much as there is a certain comfort in wringing hands with your friends, our role here at the Association is to find ways over, under, or straight through obstacles to getting more and better trains everywhere they’re needed across the Nation. I’ve spent the past month or so working out what that looks like for our Rail Passengers members, supporters, and donors. Bottom Line Up Front? We’ll change some tactics and double-down on others, but we are far, far, far away from having to throw up our hands. We have a way through this, and I want to share it with all of you.

I’ll offer more details further down this page, but to understand the thinking behind our shifts you’ll need to understand the flaws in how the Supreme Court’s ruling in this case – known as Loper Bright Enterprises v Raimondo – was reasoned and put together. And boy, oh boy, were there flaws! That previous professor I told you about told me that if I had turned in that opinion for a grade, I might have flunked the course.

In a blistering dissent, Justice Elena Kagan laid out some of what her colleagues in the majority got wrong, noting that their decision now means Federal judges will have to wrestle with questions such as when an alpha amino acid polymer qualifies as a regulated protein under the Public Health Service Act, or what would make one population of western gray squirrels distinct from another under the Endangered Species Act. By extension, that means Federal judges will have to develop instant expertise in the highly technical and nuanced topics in which FRA and STB staff have spent entire careers becoming subject-matter experts.

It was an amusing irony that on that very same Friday when the Court published its Loper Bright decision, it also quietly issued a factual correction to a majority opinion issued the day before by Justice Neil Gorsuch in which he confused nitrous oxides with nitrogen oxides – laughing gas with pollutants – thus neatly underscoring why the judiciary really ought to stick to law and leave technical, engineering, and scientific questions to technologists, engineers, and scientists.

“Four decades after its inception, Chevron has...become an impediment, rather than an aid, to accomplishing the basic judicial task of ‘say[ing] what the law is,’” the Loper Bright Court declared, citing back to the famous Marbury v Madison case from the early days of the United States. Calling Chevron “fundamentally misguided,” Chief Justice John Roberts wrote that “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the [Administrative Procedures Act] requires.”

But Roberts’ opinion begins with the presumption that agencies like FRA and STB are routinely "saying what the law is," and that’s just plain untrue. The agencies mostly aren't saying what the law is. Instead, the agencies spend most of their time working to understand thorny issues in which difficult fact-based determinations are entangled with law. Justice Kagan’s dissent describes them as “mixed questions,” and she’s right.

“There are many, many cases where vague legal standards are running headlong into complex facts, and the purported ‘legal inquiry’ actually relies primarily on facts and subject matter expertise,” notes Leonardo Cuello, an attorney and research professor at the Georgetown University McCourt School of Public Policy’s Center for Children and Families. “And agencies are far better positioned to understand vague legal standards using the factual context. This was Chevron’s raison d’etre.”

And here’s where we can start thinking about our own role as advocates, helping to supply facts and subject-matter expertise.

Loper Bright is not a magic wand that will suddenly vaporize all complex regulatory facts in a cloud of BPA-free glitter. If anything, Roberts and Co. just turfed a lot of really difficult, time-consuming, complicated decisions into a Federal judiciary that’s already struggling with heavy caseloads. For every lone judge in a remote Federal district eager to make a national splash with some novel interpretation, there are probably three dozen or more who genuinely want to use their proceedings to find the best answer possible and certainly don’t want to spend months trying to develop expertise in dozens of technical disciplines.

When the Court issued its decision last month, I wrote to all of you that the strongest language in Loper Bright protecting future passenger-focused decisions was an acknowledgement that “careful attention to the judgment of the Executive Branch may help inform” a lower court’s inquiry into an agency’s decision, and that when a particular statute delegates authority to an agency consistent with constitutional limits,” – which fairly describes the law outlining the role of the Surface Transportation Board – "courts must respect the delegation, while ensuring that the agency acts within it.”

Most honest-broker judges will make a good-faith effort to understand what’s at stake, and if they’re asked to evaluate, for example, FRA or STB decision-making, I think they’ll figure out a way to apply something that looks like Chevron deference even if they don’t say so explicitly.

For us as grassroots passenger rail advocates, this means we’ll have to put even more effort and focus into what we’ve done here at the Association for the past few years: developing thorough, fact-based, well-reasoned policy evidence to help FRA, STB, and Amtrak make good, passenger-focused decisions. Evidence-based policy, sound reasoning, factual records, all will help lower courts rely on fact-based considerations for answering legal questions surrounding FRA or STB. And all of that work will allow us to be better partners for agencies whose decisions are going to be scrutinized with this new standard.

Our work can be a life raft for jurists, agencies, and congressional staffs alike.

They’ll need our help more than ever, so we’ll work that much harder to develop research, marshal facts and evidence, and develop nuanced and professional policy positions to help advance the cause of passenger rail within the agencies, and in the Congress, who will be expected now to speak more specifically in legislation to what is and is not part of a particular law. We can do that...and you can help us. Are you ready for that challenge?