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Two recent decisions by the United States Supreme Court could have significant implications for federal agency activities on state and local land use issues. But those implications are neither obvious nor widely known. These cases are related to the demise of the so-called “Chevron Doctrine,” which granted federal agencies judicial restraint in interpreting ambiguous federal laws where Congress had not directly addressed an issue.
Under Chevron USA, Inc. v. Natural Resources Defense Council, Inc.decided in 1984, deference to federal agency interpretation was given, in part because the Supreme Court assumed that an agency had subject matter expertise and was familiar with the regulatory environment, even though a court might have interpreted the law differently. That assumption has been challenged in various Supreme Court cases since 1984, but in these two recent decisions, deference to agency decision-making is completely discarded.
Loper Bright Enterprises v. Raimondo And Relentless, Inc. v. Department of Commerce both dealt with regulations issued by the National Marine Fisheries Service (NOAA Fisheries) under the Magnuson-Stevens Act to protect American fisheries. That law authorized the Legislature to implement the Act and incorporated the federal Administrative Procedure Act (APA) to govern agency rules and orders in contested cases, the standard procedures that apply to most federal agency activities. The regulations issued by NOAA Fisheries at issue in this case required fisheries management plans, including catch limits, and an overseer on fishing boats (paid by the fishing operator) to enforce catch limits. Federal district courts and appellate courts, relying on Chevronhas complied with the rules in every case.
In annulling these measures, the Supreme Court cited Marbury vs Madison (1803) found that “it is expressly the function and duty of the judiciary to say what the law is,” and held that the Constitution and the APA require Article III federal courts to use their independent judgment to decide whether an agency has acted within its statutory authority, and that courts may not defer to an agency’s interpretation of the law merely because they find that the law is ambiguous; therefore Chevron was overturned. The court said it would show “respect” but not deference to the interpretations of federal agencies to implement the will of Congress on legal issues. As noted in dissenting opinions, the court applied the framework of its controversial decisions in Knick v. Township of Scott, Pennsylvania in (2019) a land use case that allowed expropriation plaintiffs to appeal directly to federal courts, and Dobbs v. Jackson – Women’s Health Organization in 2022 the infamous reversal of Roe v. Wadeas a justification for reversing previous decisions that the current majority does not like.
For the purposes of this article, we will refrain from using the legal history of these cases. A clear majority of the Supreme Court has Chevronand it is likely that this decision will not be revisited any time soon, if at all. Instead, the focus is on the land use implications of these cases, as these are not immediately clear.
Some decisions interpreting state law have a direct impact on land use, such as the Department of Commerce’s decision that a state coastal management plan is certified as compliant with the Coastal Zone Management Act. This certification would require some federal agencies to be bound by the state or local plan. Judicial review of this decision may call into question the validity (and, some would argue, the wisdom) of the underlying laws as well as the certified state policies. The same is true of similar decisions by the Federal Communications Commission to override state or local laws under the Federal Telecommunications Act to ensure the use of telecommunications facilities.
In addition to the implementation of federal regulations and policies under the APA by states and municipalities, there is another role of the federal government that is being called into question by Raymond / Relentless – Decisions by federal agencies enforcing federal laws that indirectly affect local land use decisions. For example, a decision by the Secretary of Housing and Urban Development to enforce the Fair Housing Act or regulations promulgated thereunder if he or she can demonstrate a pattern or practice of denying or making housing unavailable to lower-income ethnic or racial groups. Regardless of whether the case is even brought under the Fair Housing Act or regulations promulgated thereunder, whether such a housing discrimination claim can be brought, and the substantive grounds for asserting discrimination claims, it is in the hands of the courts to determine whether such a housing discrimination claim can be brought.
The Supreme Court’s record of gutting voter protections under the Voting Rights Act leaves little room for doubt about the outcome. Moreover, the prospect of such a challenge and the delays it entails (waiting for a new administration to change law enforcement policy or for a law to be passed explicitly allowing such enforcement) introduces great unpredictability into the state and local regulations that require consistent implementation. This potential unpredictability extends to the public health and safety requirements of federal laws related to clean air and water, and to construction in flood-prone areas, where remedial work becomes particularly dangerous.
Perhaps it is pure coincidence that only those policies that are viewed negatively by one political side (such as abortion, federal decision-making, or state or local land-use restrictions) are so wrong that they are repealed as precedents, while other policies favored by that side (such as gun control or presidential powers) are either enacted or extended.
Armed with the knowledge of how to thwart the will of Congress, enforce passed (but broadly worded) laws, or prevent the passage of other majority-driven laws (such as air and water quality laws), the Court has led the nation into a dead end. If change is to come, it must come from a majority-minded Congress, a constitutional amendment, or compromise. If compromise is to come, those seeking change must provide a compelling counterweight to the forces supporting the status quo. Either way, it will be an uphill battle.
Edward Sullivan is a retired land use and municipal law practitioner with over 50 years of experience. Contact him at (email protected).
Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. You can reach her at 503-972-9903 or (email protected).
The opinions, beliefs and viewpoints expressed in the foregoing 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 the author nor the DJC guarantees the accuracy or completeness of the information published here.
