By George Kimbrell, Co-Executive Director & Legal Director, Center for Food Safety Blog article, 8/12/24, reprinted with permission
The Supreme Court's current conservative supermajority is not shy about overturning long-established settled law using extremist approaches to constitutional interpretation. This Court has upended substantial societal interests, endangering civil liberties and public protections. You're probably aware of some of the more seismic changes in recent years: Overturning Roe v Wade, eliminating a half a century of legal precedent and the constitutional protection of women's bodily autonomy; repeatedly gutting protections for voting rights and preventing election gerrymandering; radically expanding gun rights; weaponizing the First Amendment to discriminate against same-sex couples and LGBTQ+ protections; upending equal protection law to end affirmative action in college admissions; and making it harder for the government to address climate change and protect wetlands, to name a few. Most recently, creating sweeping new presidential immunity from criminal prosecution.
What you might not know is that last month an end-of-term flurry of Supreme Court opinions you might not have heard of caused an equal earthquake, shifting bedrock U.S. law, in yet another area: administrative and regulatory law. These decisions, lumped together in a matter of days, involved important albeit dry—and less media-friendly—topics, but nonetheless will work a sea change in how the governments regulates all manner of important subjects, including the food system, everything from environmental and public health protections to food safety and ingredient labeling.
First is the Court's overturning of the Chevron deference doctrine in the Loper Bright decision. Chevron was a cornerstone of administrative law and procedure for forty years, covering thousands of cases. An easy way to think of it is that, in litigation that involved government rules and regulations, under the Chevron framework, the legal scales were tipped towards the government agency, or that a "tie" went to the agency. Now think of any definitional inquiry: what counts as an environmental "pollutant"? Or what qualifies as a food ingredient that is "generally recognized as safe"? Is a factory farm manure lagoon's runoff into groundwater creating industrial or hazardous "waste"? If the court thought the law's wording and instruction to the agency clear on its face, that was the end of the inquiry. However, if the particular wording was ambiguous, then a judicial thumb was placed on the scale in the agency's favor and its view deferred to if reasonable. No longer: on June 28th, the Supreme Court ruled that federal courts may not defer to an agency's interpretation of an ambiguous law.[1] Now, rather than the agencies Congress empowered to implement the law, it will be the federal courts that have the final say on the best meaning in such cases.
The result is a dramatic redistribution of power from the executive branch (the agencies) to the judiciary. Agency decisions applying federal law will come down to the courts' views on the disputed question, no matter how big or small, or how policy, scientific, subject matter, or expertise-laden these issues are, from decisions on workplace health by the Occupational Safety and Health Administration to student loans from the Department of Education. The list of food and agriculture regulation issues implicated is long, but could include everything from: food safety, ingredient labeling, and dietary supplements at FDA; to meat and poultry safety, organic food standards, and GMO labeling at USDA; to pesticides, PFAS, and slaughterhouse pollution at EPA; and many more.
While Loper Bright got the most press, the Supreme Court decision with arguably broader ramifications was issued just one business day later in Corner Post. This decision also incinerated a foundational pillar of administrative law: the deadline to bring a court challenge to an agency decision. Most administrative law cases—the cases dealing with rules and regulations for the protections for consumers, workers, food, drugs, the environment—must be filed within six years of the rule's issuance (there are exceptions that require a challenge be brought sooner in some cases). After those first six years, any stakeholder who wanted to challenge a regulation was out of time and out of luck.
But in Corner Post, the Supreme Court changed the rules: the clock no longer starts when a rule is issued – instead, it doesn't "accrue," or start, until an entity is first affected by the regulation. So, a company incorporated in 2025 would have until 2031 to challenge any existing regulation of its operations, even if the rule had been on the books for decades. Instead of having one statute of limitations for a rule with a clear deadline running from the rule's publication, we now have an indefinite time to challenge agency actions. And it's easy to form a new corporation, and skirt even this new "deadline."[2]
The blast radius from Corner Post is expansive: there is effectively no longer any limitations period to challenge agency regulations, and litigants can create new entities or find new plaintiffs whenever they miss a statutory deadline. This creates considerable uncertainty for agencies, interested parties, and society, where any rule in the federal code can perpetually be challenged by new plaintiffs.
But that's not all. Two other new decisions warrant mention. The June 27th decision in Jarkesy, one day before Loper Bright, held unconstitutional the Securities and Exchange Commission's (SEC) internal enforcement mechanisms for securities fraud. These are often handled using an administrative law judge in agency proceedings, instead of full-blown federal court trials. Such agency hearings are used because they are more efficient than taking all disputes to federal courts, which move more slowly, among other benefits. Now, enforcement proceedings seeking civil penalties will have to be undertaken in federal court instead. While the facts of the case were limited to the SEC, its reasoning and fallout will topple all similar agency enforcement proceedings utilized by many other agencies. As Justice Sotomayor noted in her dissent, there are over two dozen federal agencies and over 200 statutes that currently utilize similar proceedings, including those that enforce against health, environment, and worker safety violations.
Finally, also on June 27th the Court stopped the EPA's plan to address air pollution that drifts across state lines under the Clean Air Act, known as the "good neighbor" plan. Ohio v. EPA is noteworthy not just for its unfortunate pollution consequences but also because of its reasoning: it issued the extraordinary relief of halting the plan pending further lower court review simply because EPA had not properly responded to commenters' questions during the process and thus the plan was not "reasonably explained." Reversal of agency action is normally judged by whether it is "arbitrary and capricious," a standard of review that some courts have interpreted as a high bar, which the decision in Ohio lowers.
In conclusion, combining Loper Bright and Corner Post: deference to agency interpretations concerning their authority was one limitation on challenges to agency decisions; a fixed statute of limitations tied to the agency action's publication was another. The Supreme Court just detonated them both. The doors now are open to future challenges, leaving the courts to unilaterally decide the fate of agency decisions. Ohio is a new example of courts halting government action for failure to follow proper processes. And the government's ability to itself watchdog and enforce violations of laws protecting health and the environment in its usual manner is now crippled by Jarkesy, again moving what had been executive authority to the judiciary.
Unsurprisingly, each of these decisions was decided on ideological lines 6-3, with Justices Kagan, Sotomayor, and Jackson writing apoplectic dissents. As these dissents make clear, these decisions will undoubtedly make it harder for the federal government to promulgate, implement, and enforce rules and regulations needed to govern in the 21st century, to protect workers, the environment, and our food. Indeed, that's the point: to dismantle the modern administrative state and shrink the federal government.
The overarching solution naturally centers around winning elections and officials with the political will to make the changes necessary. Congress could overturn Loper Bright and Corner Post, as well as fix Jarkesy. More generally, agencies have been squeezing blood from statutory stones for decades, applying environmental protection laws passed in the 1970s to try and address 21st century challenges. We are far overdue for a new wave of legislation such as the Green New Deal to address climate change, industrial agriculture, and other challenges requiring fundamental paradigm shifts. Perhaps this new cutting back on agencies' flexibility to address problems through rulemaking will create new pressure and break the legislative logjam. Further, whoever is president the next 8 years will likely replace 2-4 justices, which could swing the Supreme Court dramatically, as well as populate lower court appointments, with resulting progressive shifts in the law.
In the meantime, the Court's tearing up of the administrative law rulebook creates significant opportunities for and the increased necessity of public interest advocacy and litigation. We must make lemonade out of lemons and use the opportunities presented to advance the public interest.
First, while Loper Bright makes it harder for agencies to defend doing good things, it should also make it easier to challenge when they do bad things. And we know that in many areas the problem of "regulatory capture" at agencies is so bad that even in Democratic administrations, the agencies do not prioritize protection of health and the environment. Pesticide and GMO regulation would be easy examples. Agriculture exceptionalism makes it such that—for all of Industrial Agriculture—you could say this agency capture is the default. Now, bad rules that cause environmental and health risks from industrial agriculture based on an agency's interpretation will no longer get deference from the courts. What "costs" to farmers and the environment can agencies ignore when they register pesticides? No deference, court decides. Can a new aquaculture industry be put in the ocean without new congressional authorization? No deference, court decides. Can USDA exempt GMO foods from labeling because they are "highly processed"? No deference, court decides. Can a factory farm cause pollution to rivers simply because the pollutant travels through the air? No deference, court decides. And so on.
Second, after Ohio, what we submit to agencies in rulemaking can no longer be ignored, making detailed legal and scientific administrative filings, as well as broad public "take action" campaigns, even more important.
Third, Corner Post provides unprecedented opportunities to challenge dusty agency decisions previously unassailable. There are many bad agency decisions from past decades causing harm to the environment, risks to health, and engraining industrial agriculture, that are newly vulnerable to being litigated and corrected.
Finally, Jarkesy will make it harder for agencies to police violators, making outside enforcement by third parties more vital. Many core environmental and health laws have "citizen suit" provisions that allow for exactly this type of substitute enforcement action, and they are one of the main tools of the public interest community. This includes enforcing water pollution from factory farms and slaughterhouses, and harm to endangered species from pesticides and monocultures. Those watchdog efforts will now become all the more important.
[1] Loper Bright itself was about an ocean fisheries management decision by the National Marine Fisheries Service regarding the Atlantic herring fishery vessel fees, but the facts of the case are secondary to the new legal principle it enshrines for all agency actions and all federal agencies.
[2] As with Loper Bright, what matters in Corner Post is the new legal principle set forth not the specific facts, but its own facts illustrate the hypothetical above is anything but unforeseeable. The case was about the regulation of debit-card transaction fees by the Federal Reserve Board. A 2011 regulation capped such fees charged by businesses, and several large trade groups sued. When it became clear that the trade associations were time-barred by filing ten years after the regulation was passed, they added a small convenience store, Corner Post, that opened in 2018, but otherwise made identical claims as before. As the dissent explained the case is the "poster child" of the type of gamesmanship now invited.
