Water Foresight Podcast
Examining the future of water through the lens of strategic foresight--anticipating, framing, and shaping your preferred future.
Water Foresight Podcast
Does Loper Bright Enterprises Signal the Demise of the Chevron Doctrine?
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Is the demise of the Chevron Doctrine "greatly exaggerated"? Professor Sidney Shapiro of the Wake Forest University School of Law joins the Water Foresight Podcast with his observations. What does the future of the U.S. Supreme Court's Loper Bright Enterprises decision mean for the future of water and how administrative agencies interpret and implement Congressional directives? Much has been said about Loper Bright Enterprises, but will it lead to a future transformation of how administrative agencies interpret and implement water-related matters? Is there such a thing as a "Meh Scenario"? Will we ever know what is a "wetland"?
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Introduction to Professor Shapiro
Speaker 1Aqualaris at Wake Forest University . Professor Shapiro is the co-author of the 2024 book how Government Built America . Also , he is the president of the Center for Progressive Reform . Professor Shapiro , welcome to the Water Foresight Podcast . It is a privilege to have you with us today . Well , thank you very much . I'm happy to be here . I may be biased , but as a recovering lawyer , I think administrative law was probably the most important and probably the most underappreciated class I took in law school . You may think I'm being a suck up , but I think that is my position and I'm willing to stick with that . And I'm willing to stick with that . And when we think about the future of water , sometimes we come to legal matters where cases could really dramatically shape the future of water for the better , for the worse , or maybe no impact . But tell us a little bit about who you are and your role within this world of administrative law .
Speaker 2Well , thank you for asking . I'm the Frank U Fletcher Chair in Administrative Law at Wake Forest University and I suppose , as the name of my chair indicates , I've written a long time about administrative law . And I not only agree with you , as you would suspect , since I teach the subject , but I tell students that , and I'm not sure whether or not they believe me until they get out in practice and find this is true when it comes to water , like a lot of other industries , there's a vast scheme of regulation , some of it's federal , some of it takes place in the states , and all of that regulation is carried out according to this thing called administrative law . So , for your listeners , administrative law is the procedures by which government operates . There are legal procedures and when the government makes decisions , at the end of the day , state courts , federal
Administrative Law Fundamentals Explained
Speaker 2courts , are there to determine whether or not the government lived up to these procedural requirements .
Speaker 1I sense that , if my memory serves me correctly , that administrative law is ultimately about two basic issues . It is about rulemaking and adjudication . Is that fair ?
Speaker 2That's true . So in the administrative law field , most agencies certainly water agencies your listeners will be familiar with this all of those regulations about use , purity , so on and so forth , are adopted through a kind of legislative process called rulemaking , done according to these legal procedures , and then the government has the authority to enforce those regulations , although that effort likewise is subject ultimately to court review . And that process of enforcement , applying the rules to a set of facts , to a particular company that's called adjudication .
Speaker 1I'm having flashbacks to less than informal adjudication , less than informal rulemaking , things like that . We won't go down that rabbit hole today , but it seems that administrative agencies have quite a hefty workload in implementing their responsibilities over rulemaking and adjudication . Our listeners may think of rulemaking in the sense of what is a wetland defining that , proposing a rule , finalizing a rule and then allowing these agencies to implement that rule , whether it be the Environmental Protection Agency or the Corps of Engineers . And certainly adjudication . Our folks would probably think of a permit I need a NPDES permit for my wastewater plant or maybe I broke the rules , I broke the law and there's an enforcement action , some examples of adjudication .
Speaker 1But what are some of these administrative agencies ? Right , we have the executive branch , legislative branch , judicial branch , but some people and as a professor you can probably talk to us quite a while about this but there's this notion of the fourth branch of government , these administrative agencies , these famous three and four letter word agencies that many of us probably don't really think about or know about until we get a letter from them or we experience them at our workplace . So what are some of these administrative agencies in your experience that have a relationship to water ?
Speaker 2Well , you named some of them . I think maybe one way to think about this is that in any government we need administration , that if we decide that we want to , as a nation , make certain reasons and for clean water reasons , or you want to sell drinking water bottled in plastic or disposable containers , all of that is regulated as an idea of protecting the public . But somebody's got to do all that work Right . And that's where the administrative agencies come in . And that's the challenge , of course , in a democratic country . Right , because the Constitution recognizes three branches . But interestingly , the framers immediately went to public administration , although they didn't put it in the Constitution . The early parts of the government in this country very much were administrative and they began adopting ways of making that accountable basically the day after George Washington became president . So that's the challenge how do we incorporate public administration into our democracy ? And the way we do that is through this thing called administrative law , and it has two aspects to it . First , it says you , the bureaucracy , by the way , headed by a politically appointed administrator . So it's not unelected folks that are making these decisions . They're all subject to review by the top officials of an agency . First you've got to use the right procedures and some of the litigation that we see right procedures and some of the litigation that we see , some of the challenges that maybe some of your listeners have engaged in . Lawyers would have argued that the agency did something rulemaking or adjudication and it just didn't do it the way it was supposed to , according to legal procedures . And then the administrative law in the states , in the federal government , says that there's going to be judicial review , and the administrative law sets out the standards , the way that courts will overlook and supervise what the agency does , and we can get into that in a moment . But that's a kind of substantive review that is undergoing change . So I might add , if I can add one more thing as you predicted , law professors have a lot to say about all this . If I can add one more thing , as you predicted , law professors have a lot to say about all this .
Speaker 2Everything we're reading in the papers right now about the Trump administration . That's administrative law . Obviously , president Trump came into office and was interested in making a lot of changes , and many of them all at once , apparently and as a result , there have been dozens ,
The Fourth Branch of Government
Speaker 2literally , of lawsuits that have been filed against the administration , and I suspect there'll be many more , and all of those are about did the administration use the proper legal procedures to take the actions that it's taking ? And then , secondly , as a matter of substance , are those actions legal ? Are they authorized by the laws under which the president is obligated to operate ? And we'll find that out . That's down the road , yeah , but , and that's somewhat outside of water , probably a lot outside of water , but that's what we see happening every day in the paper , right ?
Speaker 1Looking at both substance and process . Right , yes , this world of administrative law , whether you're at EPA or the Federal Trade Commission , these agencies are receiving statutory mandates from Congress and they have to implement them , they have to administrate them , they have to execute them . And so this agency let's pick on EPA has to propose a rule . This is the way we're going to regulate a particular substance under the Safe Drinking Water Act or the Clean Water Act . They put out the rule , they follow I think you mentioned earlier the Administrative Procedures Act and they propose a rule . They get comment . Maybe they change the rule . They follow the procedure and they come out with a final rule and they post that in .
Speaker 1And I'll quietly say my favorite book called the Federal Register right , Administrative lawyers love the Federal Register , don't they ? But you read the rule and I'm sure that everyone will agree . Right , the end of the line , everybody's happy , the rule is clear and nobody's mad , no litigation . We just go about implementing that new rule and move on in life . But my sense is you're going to tell me that's not the way it works .
Speaker 2There's very few rules and they're all relatively minor . That EPA has not been sued over , usually by both sides the regulated industry and environmentalists or other public interest groups .
Speaker 1Okay , so I guess my optimism is short-lived , okay , so I guess my optimism is short-lived . You're a bit tongue-in-cheek . Yes , yes , okay , all right , so we have to keep lawyers employed , right ? Lawyers always win , is what we say . So I suppose that there may be some issues regarding clarity . What is a wetland ? What does something mean ? And it appears that you're going to tell me that we've got maybe some case law from the courts that help us think through these rules that may or may not be ambiguous , and how do we resolve those ambiguities ? What is a wetland ? What is a hazardous substance ? What is this ? And I heard that there's this term called Chevron deference . Am I in the right ballpark ? Tell me a little bit about that and what does it mean ? Where did this come from ?
Speaker 2Chevron deference refers to a case that involved Chevron , the petroleum company , so it's shorthanded as the Chevron case . So it's shorthanded as the Chevron case , and that was an interpretation by the Supreme Court of this thing . We've been talking about administrative law . So at the federal level , administrative law is encompassed in a statute called the Administrative Procedures Act , or APA for short , or APA for short , and the APA says in one of its statutory provisions that a judge is to determine whether or not an agency's action is without legal authority , and what that phrase refers to is whether or not Congress has authorized the agency to adopt the rule that it has adopted . Now the difficulty take action can be ambiguous , and the example to which you were referring wetlands is a good example . Epa is authorized to protect wetlands , but Congress left it unclear in the Clean Water Act precisely what is a wetland . So EPA offers its own definition of wetland and it may be too broad or too burdensome or just not make sense to say people affected . So they sue and say courts .
Speaker 2Epa has looked at this ambiguity and resolved it this way , and we don't think that's correct . That's not what Congress meant when it used the term wetlands , as far as we can determine it . So the court has to make that determination . So for years , in making that determination , the court adopted for 40 years what was called a two-step approach . And in the first step the court asked the question can we determine what Congress meant ? Is this term really ambiguous ? Or can we look at the statute , the words , the legislative history , the purpose of the act and figure out , although wetlands may seem like an ambiguous term , actually we can figure out what Congress meant by wetlands . And so we can determine whether or not EPA is authorized to regulate this particular type of land with this relationship to water .
Speaker 2But then the Chevron court , the Supreme Court , said it may be we can't figure that out . It may be that this term is truly ambiguous . So then we go to a second step and we ask whether or not the agency's definition of the term wetland is a reasonable one . For most ambiguous words or phrases there's often two or more reasonable ways to resolve the ambiguity , and what Chevron said is the agency gets to choose which one of those is best .
Speaker 2And then the court went on to explain we're going to let the agency take the lead , or here for two reasons . One , they have more expertise than generalist judges about how water works , how wetlands work , what the nexus between the two is , how pollution in a wetland may find its way into the waters of the United States , and so they're in a better position to resolve the ambiguity states , and so they're in a better position to resolve the ambiguity . And secondly , the agency is politically accountable because it works for an administration elected president and works under presidentially appointed officials , whereas we , the federal judges , are appointed for a lifetime and whatever decision we make , we're certainly not politically accountable for it . So that was the way that the courts approached this issue of statutory interpretation , and it's sometimes said that the courts gave deference , because of this expertise , to the agency's
Chevron Deference Explained
Speaker 2resolution of an ambiguous term .
Speaker 1So the agencies , given their longstanding work in the trenches with ideas like wetlands or what's a pollutant or a hazardous substance under the Chevron deference standard , if there is an ambiguity , then they turn to the agency and say , well , let's see what these experts think . Is that fair ? Well , I will sense and foreshadow that you're going to tell me this just doesn't conclude with everybody's happy with this standard . It seems that , as you alluded , we've been dealing with this for 40 years and it may have led to a lot of confusion . I sense that there's a lot of court cases on this term wetlands that we've been talking about . What's a wetland ? We've gone through that Bright Enterprises versus Raimondo decision . I hear that there is perhaps some change that is coming out based on that case .
Speaker 2Right . So in Loper Bright put it in a short fashion the court overruled Chevron and established a new way new in the sense of different from before for the courts to perform this task of statutory interpretation . So I'll explain Wilbur Bright in just a second , but let me try to put it in context for listeners . You're right . In all the Chevron litigation of course somebody's unhappy . It's a contest . There could be a number of groups public interest groups , environmental groups . There's always a regulated entity or regulated industry and at the end of the day the courts make a decision . The courts make a decision and then there are people who didn't get the legal outcome that they preferred and maybe even thought was correct . And that's always been true of what we lawyers do and true of litigation . So I don't know that Chevron was particularly controversial in that sense .
Speaker 2But how it was controversial among a lot of lawyers and law professors and people who think about the law is in the separation of powers context . That isn't it the role of judges to decide the meaning of the law , and were judges ceding some of that responsibility to administrative agencies rather than undertaking it itself ? So that kind of formalism , that kind of idea that courts have a role . The executive branch and agencies have a role , courts have a role . The executive branch and agencies have a role , and that should be defined in somewhat clearer terms . The courts are responsible ultimately for determining the law .
Speaker 2That was a real movement among many particularly more conservative lawyers as to how all of this should operate , as to how all of this should operate . And then in Loper Bright the court in fact went to that other system and overruled Chevron . So in Loper Bright there was another set of ambiguous words and the agency claimed that it had the right interpretation , or an acceptable one , a reasonable one . Under step two , they went up to the Supreme Court and the Supreme Court said well , we made a mistake in Chevron , because the Administrative Procedure Act does say judges are supposed to determine whether agencies are operating according to the law and the Administrative Procedure Act actually doesn't say anything about deferring . And when we consider the Administrative Procedure Act and the framework of the Constitution , we think we had it wrong . The framework of the Constitution . We think we had it wrong and so we're now going to put the courts in charge of choosing the best meaning for the resolution of an ambiguous term . So that's a rather big change , because it really changes the fundamental role of the courts vis-a-vis agencies and regulators .
Speaker 1So , in short , do you think Chevron is dead ?
Speaker 2Well , chevron is certainly dead as a legal approach to how lawyers are going to litigate cases and how courts are going to decide , but the relationship between expertise and judicial review remains uncertain . So the court was aware of the reasons why it chose the Chevron framework originally and , as said , that really involved the court's recognition that agencies have expertise in these issues and often judges don't , and the only thing they really know about the case is what the two parties are telling them in litigation and of course , that may not be a very true guide to what's going on . So the court was looking for a way that courts wouldn't ignore expertise , they just wouldn't defer to it . So the court brought mentioned a pretty old case called Skidmore Again , just adopting the name of the case , it's just a shorthand for that really old case and what Skidmore said was to the courts that you're going to decide the law , uh , but uh , in doing that , uh , you need to take into account , uh , the agency's explanation and justification for its actions , right , uh ? And the court uh , spring court said well , that's how we're going to do this , so we're not going to ignore whatever expertise the agency can contribute . Um , we're going to take a look at it , uh , and consider it .
Speaker 2But at the end of the day , if the judge is persuaded by , the agency , has the best way , the best answer . We'll adopt the agency's position , but judges are now free to not adopt it . So in other words , going back to our notion , there may be two reasonable definitions of a term . Under Chevron , if the agency was purporting or following one of the reasonable definitions , then a court was obligated to follow that definition . Now , under Loper-Bright , if there are two reasonable definitions of a word and the agency says we like definition A and here's our reasons , and a judge is free to say well , I see what you're doing , I see what you're arguing , but I'm not persuaded . I think the best answer is definition B , then the court is free to adopt definition B and it wouldn't have been free to do so under the previous Chevron framework .
Speaker 1It seems that the term evidentiary bucket comes back into view , where the judge is sitting there with all the parties , even interveners that have their own opinions and definitions , and weighs all this evidence and has to make a decision . Is that fair ? Absolutely .
Speaker 2Yeah , the term judging really is appropriate here . There's no formula for doing this . We're talking about judgment as informed by a judge's judicial philosophy . Philosophy and judges do differ as to how they should go about judging , and that's the nature of our legal system .
Speaker 1It seems to me that it might possibly be the case that EPAs or the Cores or any other agency dealing with water , that their particular definition or viewpoint could be ultimately adopted by the court in many situations , even following this Loper decision .
Speaker 2Is that a possibility ? Actually predict that may happen over time , that judges are just trying to puzzle their way towards the right answer and that before the current sort of chaos which eventually will get resolved agencies had pretty good lawyers and pretty good rationales and that most of the time judges would be willing to listen to what the agency says . And that does put a kind of onus on people attacking what the agency did to persuade the court that what they did was not the best answer . So it may be at the end of the day . At the end of the day , this overruling of Chevron may change the percentage of cases that agencies win , but it's not going to make them extremely vulnerable to a legal challenge . That just sort of remains to be seen .
Speaker 1Understood . Quick question on two issues how did the Loper decision , if at all , impact these notions of what we call plain meaning and the major questions doctrine your thoughts on those two ?
Speaker 2matters . Phrases in the statute are ambiguous and have to be interpreted
The Loper Bright Decision
Speaker 2, and there's an argument dealing with judicial philosophy about how a judge should go about doing that , and the courts have developed a sort of hierarchy of the ways that they're going to approach that . And so all judges start out with plain meaning . And that's the idea that when Congress uses a word or a phrase , it intends the common meaning , the plain meaning of that word , the common meaning , the plain meaning of that word . And so judges actually go to dictionaries and say you know what's the plain meaning of a wetland or a pollutant ? And can we find that sort of resolve the case by assuming that , however Congress meant this to be defined , they were using it the same way . People always use this term . The difficulty with that is that dictionaries typically list you know one , two or three meanings , sometimes five for a word , and you can go to one dictionary and it'll say this means A , that's the number one meaning . And then you can go to another dictionary and the number one meaning is B . And so plain meaning may or may not resolve or indicate to the court what the best answer is , the best interpretation . So next you can look to the statute itself , because there may be clues in how Congress uses words elsewhere in the statute that throws light on what Congress meant in a particular provision of the statute . And again , that may or may not work . Some cases can be resolved through plain meaning and statutory context . Some cases can't .
Speaker 2So when plain meaning runs out , that approach to interpretation , then you have to look for additional indications , what might be the best meaning . So judges look to the purpose of the statute . What was Congress trying to accomplish when it gave EPA regulatory authority over wetlands ? And knowing that , what does that tell us about how to interpret these particular words ? Judges can also , as a kind of last resort , look at legislative history . Did Congress , in the reports that are issued and the hearings that are held , is there some sort of clear indication in the legislative history what Congress meant ? And then when you put all those things together , all those sources of meaning together , then at the end of the day a judge has to judge and in his or her judgment , taking into account all this stuff in the bucket , she'll have to rule what the word means . What she thinks the best interpretation is Understood .
Speaker 1What we have all of this history . As you pointed out , chevron deference has been around for 40 years . We have the loop , the loper decision now , and it may transform , or not , the way that companies , epa itself and other administrative agencies , not-for-profits , even legislators at the state , federal , maybe even local level , but how they go about their business from rulemaking to adjudication . What , in your view ? What does this mean for these actors in this world ? What , broadly , does Loper mean for these entities ?
Speaker 2I don't know that it changes much at all , because under Chevron or under Loper Bright , in both instances we're dealing with ambiguous words in a statute . In both instances we're dealing with ambiguous words in a statute and for regulated entities there has always been an issue of compliance by . What does that word mean in the statute and what does it require of me , and what is the agency thinking and saying about what this word means ? So to that extent , that kind of regulatory uncertainty is probably not going to go away . And looking to the newspapers right now , the kind of instability we're experiencing means that in the short term , I'm not sure what that is . Agencies are not . We don't know where they're going . So perhaps that uncertainty is increased .
Speaker 2But the way that lots of lawyers have tried to help , but the way that lots of lawyers have tried to help people subject to regulation is first you can provide professional advice , looking at the pattern of how the agency has sort of done things and again , putting aside sort of current events , agencies are reasonably consistent .
Speaker 2There's a history of the way they've approached regulatory issues .
Speaker 2Presumably eventually they'll return to that and so I can start to give educated advice what a term means .
Speaker 2And then , as you know , agencies use a thing called guidance , where they tell regulated entities you know this issue has come up about the meaning of this term as it applies to this industrial practice and we're trying to work that out .
Speaker 2But in guidance , here's what we think it means . We're not legally bound to this , but we want to give you advice as to where we're going and then , once that advice is issued , a regulated set of entities can say , ok , we can live with that . It's maybe not the thing we would prefer , but we can go along with that and that'll give us enough guidance about investment to go forward . And if we really can't live with it , we can sue and attack the guidance and get a resolution of whether the ambiguous words really mean that . So that did set up a reasonably stable system of expectations , not perfect by any means , but I think provided a sense of stability as to where water law is and is going and is going and that's what's sort of interesting about current events at the federal level is whether or not people can count on the same sort of approaches to these things as before or whether they're going to change radically and there's no way to know in advance sort of where we're going with this .
Speaker 1Will that kind of regulatory consistency manifest itself in the years to come with these types of I'll call them informal rulemakings ? Where these guidance letters come out and you're right it may change the economics , the calculus , the risk to different organizations . Whereas the manufacturer regulated entity in your example may say we can live with that , a not-for-profit may say we can't live with that and we're going to sue , make sense .
Speaker 2Yes , predictions are really hard . Yes , predictions are really hard . Yes , many of the actions of the administration wants to take are so radically deregulatory that they're just not authorized by law . Even under happened , the administration lost 55 to 60 percent of their cases , to 90 percent of the cases in which they were challenged , and that's rather extraordinary . Agencies win record . Historically , in both Republican and administrations that are Democratic , had been 60 , 65 , 70 percent , because they had pretty good lawyers and they were taking reasonable positions and , of course , they had Chevron , and so the Trump administration went from a historical record of winning maybe I'll say
Future Implications for Water Regulation
Speaker 2two-thirds .
Speaker 2That's a little high to overcome all the evidence and arguments on behalf of the regulation that came before that . If you're going to say we're no longer going to regulate wetlands , even as under the more restrictive definition given by the Supreme Court , because we don't think wetlands affect water quality , that has to overcome a huge evidentiary burden of showing that wetlands don't affect water quality . What happens in wetlands filling them in doesn't affect water quality , and they weren't able to do that the first time around , and I suspect they weren't able to do that the first time around and I suspect they weren't able to do that the second time around . So here's what I'm saying that obviously when presidents are Republican as opposed to being Democrat , we get different philosophies of governing . But under previous Republican administrations going back to President Reagan both President Bush's they also had you know that two-thirds win record in the courts and that wasn't because they weren't adjusting regulation .
Speaker 2There were certainly efforts in all those previous Republican administrations to change the tilt towards more deregulation , lighter regulation and away from stronger regulation . We have a different policy and we are looking at how we regulate water and we think the regulated entities have legitimate objections here that we've overregulated . So we're going to make a modest adjustment downward to adopt a less strict regulation . And the court said okay , that's a reasonable argument and we'll go along with it . Okay , that's a reasonable argument and we'll go along with it . So if the Trump administration takes that sort of more modest approach , then it can do that consistently with evidence that you can't ignore wetlands . They do affect water quality . On the other hand , you can make a different policy decision about how to regulate them and maybe regulate them in a way that could produce something close to the same results but in a way that makes it easier or more predictable for the regulated industry to comply . Those kinds of changes have always gone through the system as the parties differed about how to approach that .
Speaker 1Interesting . So if we think about how LOPR may impact the next 20 years of water regulation whether it is wetlands or drinking water , wastewater and even water-related issues in other agencies , whether it be the US Geological Survey or the Corps of Engineers , fish and Wildlife we may not see a transformational impact in how these agencies function or the outcomes we see . I hear you saying it may be not the greatest victory that some of the regulated community may want it to be , at least at this juncture , but as you look at the next 20 years , do you see a transformational outcome ? Do you see it as being business as usual ? Or maybe even this whole system's going to really be a mess until we get some corrective decisions by the Supreme Court ?
Speaker 2Your long-term thoughts on this it's a little hard to tell for two reasons . One , as you and I talked about earlier , there are many who think that courts will continue to consult the expertise of the agency and if judges don't know a lot about the issue they'll sort of say well , that's what the agency is saying . And now I look at what industry is saying and try to figure out whether or not the agency is wrong , even though they made a pretty convincing case for what they're doing . So courts may continue to follow the agency's lead , even as they make their own determination as to the law . So on the one hand that would suggest maybe not a lot would change .
Speaker 2I talked about previous Republican administrations not engaging in wholesale deregulation but certainly in making deregulatory reform , and they had the advantage of Chevron that when they came in in fact the Chevron case itself was about the Bush administration choosing a definition of a term in the Clean Air Act that was more friendly to industry than the environmentalists wanted . So when Republican administrations were sued by the environmentalists they'd say Chevron , step two deferred our expertise about this policy choice and the courts would say okay , now you've got Loper-Bride , and the court might have thought of Loper-Bride as independently deciding about stricter regulation , but now judges are also going to be in charge of independently deciding about weakening regulation or not doing it , and is that going to affect the agency's ability to change regulation and succeed ? And at the margin , I think you know , we're likely to get somewhat consistent results . But , as I said , when agencies and administrations seek really radical interpretations , I suspect that they're going to get overruled and it doesn't matter whether it's Loper , bright or Chevron .
Speaker 1Is the Loper decision more about the Supreme Court's concern over Congress and they're kind of just throwing things to the administrative agencies , not taking a tough stand on a particular issue defining a wetland , defining a pollutant and simply allowing it to get immersed in the inner workings of an administrative agency . Let the administrative agency work it out . It'll be in litigation anyway . Let's not make the tough decisions because we have to get reelected . Or is it even perhaps , and or a concern with federal judges ? Am I wrong ? Am I on to something or am I chasing something here ?
Speaker 2I think it represented a different kind of judicial philosophy than the previous court . So , as I said , the sort of background of what's going on here is Article 2 and separation of powers and the judges' philosophy the majority's philosophy is a type of formalism that we're looking formally to separate the responsibilities and duties of the two branches , and the dissenters on the court took a much more pragmatic role about separation of powers that these things overlap and we need to choose methods of coming out in the legal system with an efficient and practical way of administering the law . And a kind of strict and formalistic approach to that really ignores the reality that when words are ambiguous it's really not a legal issue , it's a policy issue and that's what Chevron respected . So I think we see a shift in judicial philosophy about the court's role and the court is now sort of charged with figuring out where that philosophy carries them .
Speaker 1Interesting . I have thought about whether there continues to be any messaging to Congress to do its job , and some people have made those comments that Congress hands the administrative agencies sometimes a real mess to deal with . They may like that , but the question is and you alluded to this earlier but is our current window here with this new administration , will it be an aberration when it comes to our view of the impact of LOPR , and will this window of time maybe not represent where LOPR will have its greatest influence ? When we look out 20 years , this will be maybe a window that is not representative of the impact of LOPR . Your thoughts on that If I'm a chemical company trying to deal with EPA and dealing with ambiguities , will this four-year window be representative of where I might be as a company in 20 years or will this be sort of an idiosyncratic window of time with my relationship with these agencies ?
Speaker 2This is kind of historically unprecedented sort of change , everything all at once in a bold way . So it really does make it hard to make predictions . But I'm sort of of the be careful what you wish for school . So you might be pleased that the administration seems to be heading to a more deregulatory position on these things . They certainly have signaled that time there seems to be a war on agency expertise and an emphasis on making agencies
Final Thoughts on Administrative Law's Future
Speaker 2more accountable directly to the president . If the administration had its wishes , executive agencies , independent agencies , would sort of respond to the president's policy direction in a more direct way . And the problem I guess I'd ask your listeners to think about is this At the top I said the role of administrative law is to provide the accountability and legality to agency government and it does that through expertise and the kinds of expertise .
Speaker 2And they're kind of not willy-nilly because presidents change and we make radical shifts in policy every two years or every four years , every two years or every four years . And I do think that's what is at stake now , that I think the courts will reestablish the primacy of administrative law , but the system that the administration seems to favor , which is a executive , that is going to take place over the next seven or eight years . I don't know what that's going to look like , and so it ends up paralyzing everyone , so nobody's going to make investment choices . It may not be wise to expand or to add , or to change , to add or to change , and that can't be good for the economy . So I think sometimes responsible government over-regulates , sometimes it under-regulates . It's never perfect , but it certainly is the worst of two choices , I mean the better of two choices , two maybe not so good choices yeah , be careful , what you wish for , you may get it .
Speaker 1um , yeah , yeah , it seems that this is about the unintended consequences of loper and the demise of the chevron . Uh , deference doctrine . If I am a non-for , non-profit in the world of water , if I'm a regulated , it may shift my risk calculus and I know this current administration may be a bit of a wild card in terms of what it will pursue and the cases that may be brought by it or against it , but it changes perhaps the predictability of the system in which these conversations were happening . You alluded to that earlier , I think where the agency may come out with a guidance document on how it's going to regulate something and , as you put it well , the company , the regulated entity , may say you know what I can live with that . The nonprofit may say okay , that's good enough If we shift things to federal district court judges and we have hundreds of them they all have their viewpoint on how things should be decided .
Speaker 1They may rely entirely on EPA or the Fish and Wildlife Service for their viewpoint on a particular issue in the future . And again , be careful , what you wish for , you may get it . You may get wildly different opinions that have to ultimately be decided by the Supreme Court . If we have an experience where these regulatory initiatives are being given different weight by different judges if they are subject to a proceeding in court , is that kind of a future that you might see that we have all these cases running around that might have to be decided in the judicial branch as opposed to resolving things in the administrative branch ?
Speaker 2That's a good question . I'm not sure of the answer to it . I think in the short term , which could be two , three years , if you are unhappy with a regulation that adopted the Biden administration or a guidance and you want to challenge it , just get in line . The courts are already overwhelmed with all of these lawsuits and it's certainly going to slow things down . I suppose the same is true for regulations when the Trump administration finally gets around to doing them , if it does . But we're going to have to push through all this early contestation and work that out .
Speaker 2But to answer your question , there are only , I think , really a handful , a dozen of those really complex cases , like the meaning of wetlands , that probably need resolution by the Supreme Court after conflicting opinions in the Court of Appeals . Most of administrative law regulation is over a regulatory fight , but it's not highly political . A regulatory fight , but it's not highly political and it's not highly salient across the country . It just needs to be worked out and if the agency and the regulated entities can't come to a mutual decision as to how to resolve a problem , there's no other alternative except to go to court . And those are lower-flying sort of everyday , kind of gray issues where everybody needs a resolution . They , for one reason or another , can't agree on what that should be , so we go to a judge and the judge will decide for us , and that's sort of it . And I think that kind of day-to-day , more mundane litigation will proceed eventually just the way it has in the past .
Speaker 1Yeah , I think that's a fair point . It seems to me and I don't want to put words in your mouth but , loper , over the next 20 years may not meaningfully change the way things have been proceeding in the world of administrative law as it may apply to the world of water . We're going to have here and there our spectacular cases , but it may change the how , it may change the timing on some of these matters , but ultimately the expertise of these administrative agencies will remain and be considered in some fashion , maybe very meaningful , maybe discarded by some judges , but it changes perhaps the manner in which these matters are addressed , not necessarily the outcome Is that fair .
Speaker 2Yes .
Speaker 1Okay , okay , it's fascinating . I want to thank you , professor Shapiro , for joining us today on the Water Foresight Podcast . I feel like we could talk about this for hours on end and I know , being a professor , you would certainly Be happy to do so .
Speaker 2You would entertain that .
Speaker 1You would deploy the Socratic method with me and stump me . I don't think we use the word ossification yet . We have to get that in there for your administrative law students who may be listening . But again , thank you so much for your insights . So much to think about . I have a number of other questions , but we will save them for another time . And , professor Shapiro , if folks want to get a hold of you and learn more about your scholarship in the world of administrative law , how can they reach you and tell us about any books or papers that you've written that might further engage with our listeners ?
Speaker 2Absolutely , and thank you for that invitation . I'd be happy to continue the conversation about administrative law with anybody who is interested . As you pointed out , I love to talk about this subject . My email you can find me at Wake Forest University Law School , law School . I'm on the website and my email is my last name without the O , s-h-a-p-i-r-s-a at WFUedu , and , if your listeners might be interested , they can Google a recent book that I've written with Joe Tumain called how Government Built America . It's written for a popular audience and it's the story of government and how we came to the present moment , and I think readers are finding it interesting and relevant to what's happening out there , and so maybe some of your listeners would like to take a look at that . But anyway , thank you very much for this opportunity .
Speaker 1No problem , I appreciate your thoughtfulness , your wisdom and your guidance on this very interesting topic and maybe down the road we'll come back and we'll talk about how things have unfolded in the years to come . I'd enjoy that , thank you . So we want to thank you , the listener , for
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Speaker 1joining us today on the Water Foresight Podcast , and we look forward to seeing you on our next episode . Have a wonderful day . Thank you for listening to the Waterforesight Podcast powered by the Aqualaris Group . For more information , please visit us at Aqualariscom or follow us on LinkedIn and Twitter .
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