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Two recent decisions of the United States Supreme Court may have significant impacts on federal agency activities in state and local land use matters. However, those impacts are neither readily apparent, nor well-known. These cases are tied to the demise of the so-called 鈥淐hevron doctrine,鈥� under which federal agencies received judicial deference when interpreting ambiguous federal law where Congress had not directly addressed an issue.

Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., decided in 1984, the federal agency interpretation received deference, in part because the Supreme Court assumed an agency had expertise in the subject matter and was familiar with the regulatory landscape, even though a court may have interpreted the statute differently. That assumption has been questioned in various Supreme Court cases since 1984, but in these two recent decisions, deference to agency decision-making is fully discarded.

Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce both dealt with rules promulgated by the National Marine Fisheries Service (NOAA Fisheries) pursuant to the Magnuson-Stevens Act to protect American fisheries. That legislation authorized rulemaking to carry out the act and incorporated the federal Administrative Procedure Act (APA) to deal with agency rulemaking and orders in contested cases, the standard procedures applicable to most federal agency activities. The NOAA Fisheries-promulgated rules at issue in this case required fishery management plans, including catch limits, and a monitor on fishing boats (paid for by the fishery entrepreneur) to uphold fish take limits. Federal district courts and intermediate courts of appeal, relying on Chevron, upheld the rules in each case.

In reversing those actions, the Supreme Court quoted from Marbury v. Madison (1803), observing that 鈥渋t is emphatically the province and duty of the judicial department to say what the law is鈥� and held that the Constitution and the APA require Article III federal courts to exercise their independent judgment in deciding whether an agency acted within its statutory authority, and that courts may not defer to an agency interpretation of the law simply upon finding that the statute is ambiguous; thus, Chevron was overruled. The court said it would give 鈥渞espect,鈥� but not deference, to federal agency interpretations to effectuate the will of Congress regarding questions of law. As noted by dissenting opinions, the court applied the framework its controversial decisions in Knick v. Township of Scott, Pennsylvania in (2019), a land use case that allowed takings claimants to proceed directly to federal courts, and Dobbs v. Jackson Women鈥檚 Health Organization in 2022, the notorious reversal of Roe v. Wade, as justification for overruling previous decisions that the current majority does not like.

For this article, the reasoning and use of legal history in these cases is omitted. A clear majority of the Supreme Court has overruled Chevron, and it is likely that that decision will not soon, if ever, be resurrected. Instead, the focus turns to the land use impacts of these cases, as they are not immediately clear.

There are some federal statutory interpretation decisions that directly affect land use, such as a determination of the Department of Commerce that a state coastal management plan is certified as consistent with the Coastal Zone Management Act. That certification would require some federal agencies to be bound by the state or local plan. Judicial review of that determination may implicate the validity (and, some would argue, the wisdom) of the underlying statutes, as well as the state policies certified. The same may be said of similar decisions by the Federal Communications Commission to preempt state or local laws under the Federal Telecommunications Act to assure deployment of telecommunications facilities.

In addition to state and local implementation of federal rules and policies under the APA, there is another federal role that is brought into question by Raimondo / Relentless 鈥� federal agency decisions to enforce federal statutes that indirectly affect local land use decisions. For example, a decision by the Housing and Urban Development secretary to enforce the Fair Housing Act or rules thereunder to enforce the Fair Housing Act, when he or she can show a pattern or practice to deny or make unavailable housing to lower income ethnic or racial groups. Whether the case be brought at all under the Fair Housing Act, or under rules adopted thereunder, it would be up to the courts as to whether such an action could be brought against housing discrimination, as well as the substantive grounds for seeking relief from discrimination.

The Supreme Court鈥檚 record for disemboweling protections providing voter access under the Voting Rights Act leaves little room for doubt of the outcome. Moreover, the prospect of such a challenge and the delays it would cause (waiting for a change of prosecutorial policy by a new administration or the enactment of a statute that specifically authorizes such enforcement) injects a great deal of unpredictability on state and local regulations that demand coherent implementation. That potential unpredictability extends to the public health and safety requirements of federal laws regarding clean air and water, and construction in flood-prone areas, where second-guessing becomes particularly dangerous.

It may just be happenstance that only those regulations that are negatively viewed by one side of the political aisle (like abortion, federal agency decision-making, or state or local land use restrictions) are so wrong that they are overruled as precedent, while others that this side favors (such as gun rights, or presidential powers) are either established or extended.

Armed with the knowledge of how to frustrate the will of Congress to enforce enacted (but broadly worded) policies or prevent other majoritarian policies from enactment (like clean air and water policies), the court has placed the nation at a standstill. If change is to occur, it must come from a super majoritarian Congress, a constitutional amendment, or compromise. If it is to be compromise, those seeking change must present a convincing counterbalance to those forces supporting the status quo. In any event, it will be an uphill battle.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the 91视频 guarantees the accuracy or completeness of any information published herein.