The Supreme Court delivered its final blow Monday to the so-called “administrative state,” opening the door to legal challenges on decades of government regulations on everything from clean air to guns to financial markets and food safety.
The 6-3 opinion, with the court’s three liberal justices dissenting, changed the parameters of the six-year statute of limitations for challenging government regulations; the clock no longer starts when a regulation is put in place, but rather when a party is first “harmed by agency rules.”
The sweeping opinion amplifies the impacts of the court’s landmark decision to overturn Chevron deference on Friday, which made it significantly easier to challenge agency rules in court. Combined, the two rulings could spur a flood of lawsuits challenging decades worth of agency rules.
“A claim accrues when the plaintiff has the right to assert it in court,” Justice Amy Coney Barrett wrote for the majority. “That is when the plaintiff is injured by final agency action.”
Public interest groups have been ringing alarm bells for months about how the combination of Chevron and Corner Post could radically destabilize government regulations, putting not just recent Biden-era rules at new legal risk but also making decades-old, long-accepted regulations vulnerable to fresh challenges. Barrett rejected the idea that the ruling would prompt a deluge of new lawsuits.
“The opportunity to challenge agency action does not mean that new plaintiffs will always win or that courts and agencies will need to expend significant resources to address each new suit,” Barrett wrote. “Given that major regulations are typically challenged immediately, courts entertaining later challenges often will be able to rely on binding Supreme Court or circuit precedent.”
The dissenting justices — as well as most attorneys who work in this area — disagree.
“The tsunami of lawsuits against agencies that the Court’s holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the Federal Government,” Justice Ketanji Brown Jackson wrote in her dissenting opinion.
“I want to impress upon people: It’s the combination of Loper Bright, which arguably changes the landscape prospectively, and Corner Post, which could open it up retrospectively, that could be transformative for agencies,” said Thomas Lorenzen, a former Department of Justice environmental attorney now representing utilities in their challenge to Biden’s power plant emissions rule.
The decision could be especially significant for challenges to laws like the Clean Air Act and the Clean Water Act, which don’t specify that the review period begins with publication on the federal register, said Lorenzen, who helps lead the environmental work for the D.C. law firm Crowell and Moring.
“Now, every legal claim conceived of in those last four decades — and before — can possibly be brought before courts newly unleashed from the constraints of any such deference,” Jackson wrote in her dissenting opinion. “Any new objection to any old rule must be entertained and determined de novo by judges who can now apply their own unfettered judgment as to whether the rule should be voided.”
In order to curb the tide of litigation, Congress would have to be explicit in new legislation about when they would be eligible for challenges. Much like with Chevron, the court has given a nominal toss to a largely dysfunctional Congress to choose to take back the power from the executive branch. “Congress still has a chance to address this absurdity and forestall the coming chaos. It can opt to correct this Court’s mistake by clarifying that the statutes it enacts are designed to facilitate the functioning of agencies, not to hobble them,” Jackson wrote in her dissent.
In the close of the court’s opinion, Barrett wrote, “We do agree with the dissent on one point: ‘[T]he ball is in Congress’ court.’”
Few, however, believe that Congress will be able to rise to the occasion.
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Claire Heddles is a NOTUS reporter and an Allbritton Journalism Institute fellow. Anna Kramer is a reporter at NOTUS.