Lead Investigator: Jane Stewart (New York University)
Additional Investigators: David Kosson (Vanderbilt University)

Project Objectives:

The overall goal of this project is to inform and assist DOE in more fully understanding the nature and implications of important recent and anticipated (Summer 2024) Supreme Court decisions and doctrines that are narrowing the scope of federal agency authority and discretion and creating expansive opportunities for courts to override federal agency actions. Specific objectives of the project include the following:

• Assist DOE in understanding the origins, legal basis for, and history of federal agency regulatory authority and discretion, including the key role of the long-standing Chevron Doctrine in affording judicial deference to federal agencies’ reasonable interpretations of their statutory authority where the authorizing statute is unclear, ambiguous, or silent.
• Similarly, to address additional recent and pending Supreme Court rulings that will have major impacts on environmental and nuclear regulations (e.g., major question doctrine, statute of limitations, trial by jury, non-delegation doctrine).
• Provide DOE with an independent regulatory analysis of the Supreme Court’s upcoming decision on whether to overrule the Chevron Doctrine and the implications of that decision for federal agency decision-making and judicial review of agency actions going forward. 
• To the extent possible within the short timeframe of the project, provide DOE with a preliminary assessment of how lower federal courts are implementing the new Court decision on the Chevron Doctrine. CRESP may also provide future updates regarding significant court decisions that may impact the DOE-EM program.

Significance/Impact:
As the federal agency charged with the complex task of remediating contamination at former nuclear weapons production sites that often present “first of a kind” challenges, DOE, on a regular basis, must make expert, science-based decisions and establish rules and policies that are not expressly mandated by or specified in the Department’s authorizing statutes, including under the Atomic Energy Act and the Nuclear Waste Policy Act Amendments and environmental laws. DOE’s ability to effectively execute the EM cleanup mission accordingly depends on the Department’s ability to exercise discretion to interpret authorizing statutes to fit new, unique, or unprecedented site circumstances and to exercise its regulatory authority in new and innovative ways that will make cleanup both protective and cost-effective. 

For the past 40 years, under the Chevron Doctrine, the Supreme Court has deferred to reasonable agency interpretations of statutory authorizing language where the statute is unclear, ambiguous, or silent. The Supreme Court recently overturned the Chevron Doctrine in two cases. Recent decisions of the Court—such as those establishing the “Major Questions Doctrine”—make clear that the Court Majority intends to limit innovative or expansive federal agency regulation significantly and to prevent federal agencies from undertaking “major” (as determined by the Court) actions that are not expressly spelled out in legislation enacted by Congress. Rejecting the longstanding Chevron Doctrine could dramatically restrict federal agency discretion, including DOE, even in “non-major” cases, and have other adverse consequences for federal agency decision-making, rulemaking, and policy making.  Furthermore, additional Supreme Court decisions during Spring 2024 (e.g., Corner-Post, effectively eliminating the 6-year APA statute of limitations for challenging agency regulations and allowing even well-settled regulations to be challenged; SEC v. Jarkesy, requiring jury trial instead of administrative law judge proceeding for agency enforcement actions imposing fines, also narrowing the major exception) will likely result in major changes in the administration of environmental law, potentially having major impact on the DOE-EM mission. Additional significant cases are pending in the upcoming Supreme Court term.  This Project will help DOE understand the scope and implications of these highly significant new Supreme Court initiatives and develop forward-looking strategies for coping with them.

Public Benefits:

Independent reviews of specific, recent Supreme Court decisions and subsequent actions by lower courts will have far-reaching implications for environmental and nuclear regulation that impacts well beyond DOE missions. The results of the CRESP reviews will be available to the public and useful as educational materials (legal and non-legal classes).

References: (* indicates CRESP publication)

*Stewart, J., Stewart R. (2024), Regulatory Considerations Update: Implications of Recent Supreme Court “Major Questions Doctrine” Decisions for DOE’s High-Level Waste Interpretation (HLWI), unpublished CRESP Memorandum.

West Virginia v. EPA, 142 S. Ct. 2587 (2022), and Biden v. Nebraska, 143 S. Ct. 2355 (2023) (Supreme Court decisions articulating and applying the Major Questions Doctrine to invalidate federal agency regulations as not authorized by Congress).

Chevron U.S.A. Inc. v. National Resources Defense Council (NRDC), 467 U.S. 837 (1984) (Supreme Court decision establishing the Chevron Doctrine).

Loper Bright v. Raimondo and Relentless v. Department of Commerce (cases in which the Supreme Court has been asked to overrule the Chevron Doctrine and that will be decided in Summer 2024).