Sidestepping Substance: How Administrative Law Plays an Outsized Role in Shaping Environmental Policy and Why Recalibration is Necessary

Administrative law and environmental law are companion fields. Still, they are not interchangeable. They promote different values. And yet, sometimes when courts resolve environmental disputes by relying on administrative doctrines, courts elevate the values of administrative law over those codified in environmental statutes. This is particularly concerning when courts rely on judicially-created administrative law doctrines to sidestep congressional intent as expressed by the substantive aims of environmental statutes.

To reduce the risk of sidestepping—whether inadvertent or intentional—this Article critically examines how administrative law doctrines can undermine environmental law. Drawing on prominent case examples, including the Supreme Court decision in Sackett v. EPA, this Article shows how administrative law can be operationalized to destabilize environmental law, thwart the law’s need for predictability, and otherwise create pathways for judicial activism. This Article goes on to examine the three features of administrative law that allow courts to use it as a tool for sidestepping environmental law’s normative aims: fluidity in individual application, evolution over time, and roots in tenuous textual tethers.

Ultimately, this Article calls for a recalibrated approach to the relationship between administrative law and environmental law in judicial review—one that puts administrative law in its place and gives due respect to the values that Congress codified in the underlying environmental statutes. Doing so will foster the integrity of both fields.

Introduction

Not everyone is a fan of environmental regulation. But individual opinion and ideology are not the measure of what law means. And yet, the judiciary—the very branch of government that is supposed to exhibit the greatest amount of arms-length discipline in respecting congressional intent—has sometimes fallen prey to a strange brand of disregard, or outright disdain, for the public interest values of environmental law.

The U.S. Supreme Court’s handling of environmental cases, in particular, has invited study and critique by law several prominent scholars. Oliver A. Houck has suggested a “Dark Cannon” plagues environmental cases at the Supreme Court: “By the end of the 1970’s, the Court was turning unmistakably hostile, creating a canon of jurisprudence that was not only negative but marked by questionable reasoning, mischaracterization of fact and law, and an evident bias against environmental programs and those who argued in their favor.” Likewise, in his book Environment in the Balance: The Green Movement and the Supreme Court, Johnathan Z. Cannon observes that the Supreme Court largely embraced environmental values at the start of the modern environmental movement but “has since distanced itself and adopted a more neutral and often even skeptical stance in its environmental decisions.” Richard J. Lazarus has made similar observations: “The Supreme Court’s attitude towards environmental law during the past three decades has generally been marked by apathy, but with the Justices exhibiting increasing signs of skepticism and some hostility.” Each of these scholars, and others, have grappled to make sense of the puzzling disregard for laws meant to enhance quality of life and human survival.

If true, these observations are both troubling and perplexing. After all, many generations of jurists have counseled restraint when asked to play too heavy a role in shaping policy—a task better left to the elected branches. And so, faced with the prospect that courts, or at least the Supreme Court, employ a different version of judicial restraint in the area of environmental law, one might logically presume the laws themselves allow for such a pattern of disregard. Perhaps one might ask: Was Congress unclear about the protectionist values embodied in these laws? Not so. The depth, breadth, and longevity of the major federal environmental statutes counsel an approach that heeds their public-minded purpose and gives them appropriate respect as intentional counterweights to unregulated consumption.

How is it, then, that courts can be strangely reticent to champion these codified commitments without tripping the alarm bells of judicial activism? For answers, this Article turns its gaze upon administrative law. In particular, this work asserts that the nature of administrative law—fluid in individual application, evolving over time, rooted in tenuous textual tethers—allows courts to use it to obscure environmental law’s normative aims, whether intentionally or inadvertently. Indeed, many of the choices driven by administrative law are potentially backdoor paths for courts to set environmental policy without having to directly engage the normative choices written into laws themselves.

Consider that administrative law controls the role that courts will assume in reviewing agency actions—whether to give agency deference on issues of statutory and regulatory interpretation, how critical of a hard look is required by the arbitrary and capricious standard of review, how clearly Congress must speak in order to be heard on issues “of vast economic and political significance.” Administrative law also controls access to the courts—shaping the standing threshold, determining when agency action constitutes final agency action subject to review, or articulating when review of agency inaction is appropriate. Because of the power wielded by administrative law to shape substantive outcomes, the failure to think critically about its role in resolving disputes increases the risk that courts sidestep the public-minded values embodied in federal environmental statutes.

An example might help illustrate the point. Consider the Supreme Court’s decision in West Virginia v. EPA. The central issue of statutory substance was whether § 111 of the Clean Air Act permits the Environmental Protection Agency (EPA) to regulate carbon emissions from existing power plants by imposing so-called “beyond the fence line” measures that would effectively shift power generation from coal-fired plants to natural gas plants or renewables. On its face, this case presents a technical issue under a complex statute that prioritizes protecting the public health and welfare with a precautionary approach and gives EPA authority to regulate greenhouse gas emissions to combat the dangers of climate change.

With such a case in hand, one would expect the Court to have wrestled with the statutory intricacies of the Clean Air Act: engaging in a sophisticated discussion about the role of § 111 in regulating stationary sources alongside the complementary and sometimes overlapping authorities available to EPA under other sections of Act; recounting the precautionary nature of the Clean Air Act and Congress’s decision throughout the Act not just to allow, but require, government regulation of mobile and stationary sources for emissions found to endanger the public health and welfare; respecting that EPA made such an expert determination for greenhouse gases in 2009; examining how the technology-facing nature of the Act serves the ultimate purpose of protecting public health; or considering that the breadth of the Act reflects a delegation of power that is flexible not ambiguous.

But not so. The majority opinion spent most of its intellectual energy on unveiling and defending the major questions doctrine. According to the Court, some questions are so politically and economically significant that courts should not recognize agency authority unless Congress speaks with particular clarity. In the end, that doctrine provided the Court a mechanism for avoiding a more substantive, expert-driven discussion steeped in the broader goals of the Act. The Court also avoided deferring to EPA if the Act proved ambiguous and the agency interpretation proved reasonable.

West Virginia v. EPA illustrates how administrative law can be used as a powerful tool in shaping environmental policy. By invoking the major questions doctrine, the Court cabined EPA’s options for regulating greenhouse gases with fairly minimal engagement of a complex statute. Under the cover of administrative law, the Court positioned itself at the apex of power. It did so by creating a doctrine that demands greater clarity from Congress on certain issues and then assigning itself the power to identify those issues on an ad hoc basis. In this way, the newly minted doctrine produces a curious outcome: it leaves the judiciary—a less politically accountable branch of government—exercising more power on more politically important questions. It is no surprise that West Virginia has already drawn so much ire.

While West Virginia is a particularly stark example of how administrative law can be used to draw power to courts and facilitate the sidestepping of federal environmental statutes, the major questions doctrine is only one example. There are enough prominent examples of courts deploying administrative law doctrines to undermine the public interest aims of environmental law that one ought to stop, take stock, and ask if a more principled path is possible. And even if one were to disagree with the idea that courts use administrative law as modes of power redistribution and self-aggrandizement, one should at the very least ask whether the legitimacy of the justice system or the field of administrative law are imperiled by the perception that it could.

With these broad observations in mind, this Article proceeds in four Parts. Part I examines the different values that animate administrative and environmental law. Part II provides examples of how courts operationalize administrative law to sidestep the substance of environmental law, that is, how courts amplify administrative law values in ways that undermine environmental law values. Part II goes on to examine the core features of administrative law that facilitate this sidestepping. Part III then explores in greater depth the constellation of legitimacy problems that arise when administrative law is allowed, whether intentionally or inadvertently, to play an outsized role in driving environmental policy. Finally, Part IV sketches a recalibrated approach for the shared space of administrative and environmental law, one that puts administrative law in its place and gives due respect to the values that Congress codified in the underlying environmental statutes. Ultimately, the aim is to develop a more nuanced set of judicial review doctrines that produce a more consistent resolution of environmental cases with a more predictable respect for the public interest values that lie at the heart of environmental and natural resource statutes.

I. The Shared Space But Distinct Values of Administrative and Environmental Law

When courts resolve disputes arising under environmental law, courts often serve more than one set of values. On the one hand, they are guardians of congressional intent as codified in individual environmental statutes. On the other hand, they must also uphold the foundational aspects of government that animate the field of administrative law. In particular, administrative law doctrines, rooted in separation of powers principles, are meant to ensure that courts adequately check the power of the administrative state without claiming that power for themselves. In this way, sitting at the intersection of administrative and environmental law, judges are sometimes in a double bind.

If both sets of values are important, then getting the balance right between upholding the will of Congress and checking the power delegated by Congress is critical. To get the balance right, one has to detangle the two areas from one another, asking where the fields are complementary and where they serve different functions. To that end, this Part explains why, though intertwined, these two areas are theoretically distinct and need to be mindfully applied to avoid giving courts the power to rewrite environmental policy in the United States.

A. The Simultaneous Rise of the Administrative State, Birth of Federal Environmental Statutes, and Need for Judicial Review

The close relationship between administrative law and environmental law makes sense. Most obviously, the two areas of law are inevitably bound by their common relationship to agencies—environmental law gives power and is implemented by agencies; administrative law serves as a check on the power of agencies. More specifically, Congress has written environmental statutes containing broad mandates whose implementation depends on the expertise of numerous federal agencies. Agencies wield substantial discretion to make policy choices with significant potential to help or hinder environmental progress. Indeed, the breadth of the statutes, the complex nature of environmental problems, and the need for specificity in implementation have spawned countless regulations. And the inevitable tension between private and public interests that is inherent in environmental regulation frequently leads to litigation. Legislate, regulate, litigate, some might say.

It is not uncommon for courts to answer questions about the fundamental reach of major environmental regulatory programs. Naturally, to help answer these questions, courts turn to canons of statutory construction as well as principles of administrative law to sort out congressional intent and the appropriate degree of respect agencies are owed as the experts chosen by Congress to carry forth various statutory commands. It goes without saying that administrative law doctrines play a substantial role in shaping judicial review of agency decisions. And by extension, the judiciary wields quite a lot of influence in shaping environmental law in the United States.

The closeness of environmental law and administrative law makes sense for another reason, too. That is, they grew up together (at least in their modern forms). The rise of the administrative state in the late 1960s and early 1970s coincided with the passage of major federal environmental statutes. That time period was also met with the rise of rulemaking as the dominant form of agency policymaking. Inevitably, this convergence of change meant that courts were wrestling with the fundamental question of how to divide power between courts and agencies at the same time agencies were tasked with using newly assigned power to implement sometimes sweeping environmental mandates.

Lazarus offers yet another idea as to why environmental law and administrative law might be so linked: the stakes are high, and, therefore, the matters of institutional legitimacy take on elevated importance. “Because, moreover, the distributional stakes of alternative resolutions are so great, any institutional efforts to fashion environmental protection rules are invariably plagued by competition both between sovereign authorities and between branches of government within any one sovereign, which raises another array of legal issues.”

For these various reasons, it is not surprising that the implementation of environmental law has been wrapped up in administrative law principles for some time. In fact, judicial review of environmental decisionmaking has inspired a number of important and enduring administrative law principles. The Chevron doctrine itself—which was one of the most recognizable frameworks for dividing responsibility between courts and agencies on issues of statutory interpretation—stems from a dispute over EPA’s decision as to how to regulate air emissions from aging industrial plants under the Clean Air Act. Even the Supreme Court’s decision to overrule the Chevron doctrine forty years later arose in the context of a fisheries management statute. Citizens to Preserve Overton Park v. Volpe, the leading Supreme Court decision marking out the scope of review under the Administrative Procedure Act (APA), involved a Department of Transportation decision to fund a six-lane highway through a treasured Memphis city park. And in the development of standing doctrine, environmental disputes provide a frequent backdrop for the Supreme Court’s views on what kinds of alleged injuries are appropriately resolved by courts.

Perhaps because of the well-trodden dynamic between administrative law and environmental law, the relationship between the two areas of law has largely been accepted as an inevitable partnership. And yet, when the administrative law doctrines undermine values embodied in democratically enacted legislation, this relationship is not always healthy.

B. The Distinct Values Served by Each Field

On some level, the concern about using administrative law to resolve environmental disputes boils down to the understanding that administrative law and environmental law serve distinct values. Because they serve distinct values, deciding cases on the basis of administrative law does not necessarily mean that the normative aims of environmental law will be served.

1. Environmental Law Values

At this point, some readers might question whether concerns about sidestepping are unique to environmental law. Truth be told, they may not be. It is quite possible one ought to be concerned any time a trans-substantive framework like administrative law undermines congressional intent, regardless of the subject matter. Still, there are reasons to be uniquely concerned with the use of administrative law doctrines to sidestep environmental statutory commands—especially if one accepts that environmental law serves a foundational and indispensable purpose in an ordered society. Put simply and most dramatically, if one accepts environmental law as necessary for human survival, one might approach with particular seriousness the possibility that judicial review may undermine its implementation.

To be sure, it is not easy to reach consensus on the values that drive environmental law. Trade-offs and tensions are inherent when trying to live well on the land. Because of the inherent trade-offs, some scholars have observed that there is no unifying set of values advanced by environmental law. On some level, that is true. Environmental law is not necessarily one thing with a singular aim. How could it be? Even setting the additional landscape of state law and common law aside, many federal environmental statutes address a wide range of regulatory issues, from clean water to forest management to waste disposal. And the many statutes contain vast infrastructure and many accompanying commands. Some provisions are focused on public health outcomes exclusively; others bypass health metrics and instead turn to technology. Others call for the balancing of economic interests alongside environmental protection. It is true then—to speak of environmental law is not to speak of a single issue or a single approach, even within a single statute.

Still, if one steps back from the minutiae of individual provisions within individual statutes and considers the broader purpose statements codified by Congress in these statutes; if one considers the patterns of bold congressional responses to environmental problems over the decades-long arc of the modern statutory era; if one considers environmental law as a necessary response to the biophysical limits of nature; then one might appreciate environmental law as existing for a more unified purpose: “Self-restraint for self-preservation.” While broad, it captures the idea that Congress has made repeated commitments to impose restraint as a necessary means to protect public health and welfare. And while the statutes tend to be complex, that complexity may simply reflect the machinery necessary to tackle issues of collective action and cumulative impacts. Still, the idea that environmental injuries are complex does not mean the foundational aims are wavering or confused. Many are, in fact, “eerily direct.”

The most straightforward way of understanding the ethic of self-restraint that lies at the heart of federal environmental law is to look at the enacted purpose statements codified as part of the statutes. Consider, for example, the National Environmental Policy Act’s (NEPA’s) declaration that it means to set “a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man . . . .” The Act then sets forth an unequivocal set of national environmental policies, declaring, among other things, that the federal government has a continuing responsibility to serve as “trustee of the environment for succeeding generations”; to ensure Americans have “safe, healthful, productive, and esthetically and culturally pleasing surroundings”; and to assure that the environment is used in a manner “without degradation, risk to health or safety, or other undesirable and unintended consequences.” These directives apply to all federal agencies—which is to say that Congress made environmental stewardship a priority across the whole government.

NEPA does not exist in isolation. Throughout the many federal environmental statutes, Congress sets out bold visions for environmental protection. To give another example, in the Clean Water Act, Congress’s aim was nothing short of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters.” To achieve that goal, Congress called for the elimination of pollutant discharges by 1985 and the prohibition on discharges of toxins in toxic amounts.

These broadly stated goals can provide clarity in the implementation of the technical details of the individual statutory provisions. Many scholars have extolled the usefulness of these enacted purpose statements in sorting out the meaning of ambiguous statutory text. In his article Enacted Legislative Findings and Purpose, Jarrod Shobe suggests that “it may be that enacted findings and purposes . . . best reflect members’ understanding of why a bill was drafted and what it was meant to accomplish.”

Importantly, it is not just the purpose statements that reflect bold congressional designs on environmental protection. The legal infrastructure and numerous statutory commands that support each individual statute; the comprehensive reach of legislative commands in fundamental areas of air pollution control, water pollution control, solid and hazardous waste management, chemicals regulation, and natural resource management; the downward ratcheting of technological standards; all are indicia of the seriousness with which Congress has approached environmental protection and natural resource management. More to the point, all are indicia of normative aims—certainly, this amount of repeated, legislative commitment was not undertaken without some expectation that there would be a less polluted world with more sustainable resource management at the end of it.

The bottom line here is that environmental laws are meant to serve distinct values. Indeed, the idea that society would need to devise a set of rules to regulate natural resources—whether in the form of laws that limit extraction of resources from the natural world or laws that limit addition of waste pollution to the natural world—is not surprising. To that end, Herman E. Daly, one-time World Bank economist and founder of the International Society for Ecological Economics, has long observed that the economic system is subservient to biophysical limits of nature. Namely, Daly explains that “the economy is a subsystem of a larger system, the ecosphere, which is finite, non-expanding, materially closed.” This means that limitless growth of the economy is not possible. As Daly explains this claim is consistent with the work of classical economists—John Stuart Mill, for example, assumed the economy would grow and eventually arrive at a stationary state. That is because when one moves from what Daly called an “empty-world” (one capable of supporting growth) to a “full-world” (one where the ecological price of economic growth is unsupportable), the economy eventually bumps up against the limits of nature. In what Daly calls a “full-world,” there are limits to economic growth.

From those observations by Daly, one might begin to understand why laws that limit waste and conserve resources are necessary for self-preservation—eventually there will be moment when incremental growth exacts too high a price on ecological systems (and by extension human survival and economic stability). In an oversimplified way, that is why environmental law serves a foundational and unique purpose in an ordered society. If one accepts that as true, and Mother Nature would provide a strong rebuttal to any skeptics on that matter, one ought to be especially concerned when the values underlying those laws are sidestepped.

Because environmental laws serve a distinct normative purpose, they cannot be sidestepped for decisional frameworks that purport greater objectivity. Douglas A. Kysar, in his book Regulating From Nowhere: Environmental Law and the Search for Objectivity, makes this very point in his examination of why cost–benefit analysis is not an appropriate decisional substitute for the normative, “precautionary” aims of environmental law. Wendy E. Wagner and Holly Doremus, in examining how science is used to obscure politically motivated choices, each have similarly cautioned against the naïve acceptance of seemingly value-neutral frameworks to drive environmental policy. Lisa Heinzerling and Frank Ackerman, in their book Priceless: On Knowing The Price of Everything and the Value of Nothing, have criticized the use of cost-benefit analysis as an appropriate proxy for addressing difficult moral choices on how to balance consumption and preservation. There is no easy way to make hard decisions.

It is certainly true that environmental regulation is shaped by many discourses. Many provisions codified in environmental statutes look to science and economics as benchmarks for decisions. It is also true that these laws impose procedures for how to advance their substantive goals. And they operate against a backdrop of administrative law rules that divide power between Congress and agencies, between agencies and courts. Still, the point of these statutes is not advancement of science for science sake, nor is the purpose of the statutes to set economic policy. The statutes do not exist to impose process requirements without some value-laden substantive end in mind. They do not exist to answer questions about power balance between governmental branches. Instead, they take on the formidable, if ultimately impossible task, of balancing consumption with preservation, impulsivity with restraint, flexibility with planning, short-term gains with long-term survival, a defined present with an unknown future.

How does this relate to administrative law? For the bold visions of Congress to be realized, courts must serve as guardians of the normative aims of environmental laws. For courts to do that, they must ensure that trans-substantive frameworks, like administrative law, do not inadvertently undermine those normal aims. Otherwise, the courts impose costs on the lawmaking process and invite concerns about the legitimacy of the judiciary.

2. Administrative Law Values

While deciphering congressional intent in the context of sometimes technocratic and science-driven conflicts over resource protection, courts must also safeguard the tripartite system of government. After all, the administrative state, made up of numerous federal agencies operating in the Executive Branch, wields sizeable authority through power delegated by Congress. Not only is that power substantial in a collective sense, but that power also flows from sometimes broad text. This is why courts have long sought tools to ensure the power of agencies is transparently wielded and adequately checked so as to promote nonarbitrary decisionmaking within the bounds of properly delegated authority. Of course, whilst ensuring that agency power is adequately checked, courts must not claim that power for themselves.

Administrative law is nothing short of a quixotic quest to find the appropriate balance of power between the branches. Though difficult, it is important work. At its core, administrative law advances a number of values foundational to the U.S. Constitution and the rule of law itself. In his book examining the Chevron doctrine’s rise and future, Thomas W. Merrill distills the values animating administrative law into four categories: those upholding the rule of law (like stability and predictability), those upholding the constitutional structures (like separation of powers and federalism), those promoting accountability (like ensuring politically accountable institutions take a heavier hand in shaping policy at the interstices of discretion), and those that encourage high-quality agency decisionmaking (like transparency in reasoning and public participation in rulemaking).

Other prominent administrative law scholars and jurists have emphasized similar values and challenges driving the heart of administrative law. More than seventy-five years ago, for example, James M. Landis spoke of the deep connection between administrative process as a response to the shortcomings of the tripartite form of government: “The insistence upon the compartmentalization of power along triadic lines gave way in the nineteenth century to the exigencies of governance. Without too much political theory but with a keen sense of the practicalities of the situation, agencies were created whose functions embraced the three aspects of government.”

When understood as an exercise in balancing power between branches of government (and matching up power with accountability and competency), one might observe that administrative law is as old as the Republic itself. Indeed, the first Congress delegated power to the President to create regulations on providing pensions to wounded Revolutionary War veterans. The first Congress also created the first agencies—“a Post Office and Departments of War, Navy, Foreign Affairs, and Treasury.” And though some still debate what the early delegations say about the legitimacy of delegation, there is little doubt that administrative law was firmly on the map by 1887, when Congress created the Interstate Commerce Commission.

Regardless of its precise emergence, most would probably agree that the challenges lying at the heart of administrative law are longstanding, foundational, and ongoing. Take the nondelegation doctrine as a particular example. Nearly 200 years ago, Chief Justice John Marshall summed up the challenge of articulating the limits on congressional delegations of power:

The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry.

Much more recently, Richard A. Epstein revisited this famous passage and concluded that “Marshall thus establishes a rebuttable presumption in favor of the delegations Congress can make to the two other branches of government, while accepting as binding the tripartite division of powers set out in Articles I, II, and III of the Constitution.” Notably, Epstein had occasion to revisit Marshall’s words because the delegation debate raged on. While delegation may be an accepted feature of the U.S. tripartite structure, the bounds of that delegation continue to inspire scholars and jurists to dig into history and urge caution against an unchecked administrative state. And the concerns animating skepticism about too much or too vague delegation find outlets in other administrative law doctrines as well—most notably the major questions doctrine.

The deeply rooted concerns about delegation manifest too in the enduring and vigorous discourse on the deference owed to agencies upon judicial review: Skidmore v. Swift & Co., Bowles v. Seminole Rock & Sand Co., Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., United States v. Mead, Auer v. Robbins, Kisor v. Wilkie, West Virginia v. EPA, Loper Bright Enterprises v. Raimondo. To defer or not to defer, that is the ever-illusive question. The answer, as with delegation, depends on foundational views about power-sharing between agencies, courts, and Congress. In oral arguments heard by the Supreme Court in Loper Bright Enterprises—a case in which the Court ultimately overruled Chevron—an exchange between the Justices through counsel poignantly captured what lies at the heart of deference discourse. Justice Brett Kavanaugh, in response to Justice Elena Kagan’s characterization of Chevron as a doctrine of humility (or restraint), says, “I think the flip side, why this is hard, the other concern for any judge is abdication to the executive branch running roughshod over limits established in the Constitution or, in this case, by Congress.” Finding the line between restraint and abdication—in other words, finding the balancing in power sharing—lies at the heart of the problem.

Decades of government operating under a large administrative state has not quelled the concerns of some members of the Court. In fact, constant vigilance might be the unspoken motto of some Justices when it comes to checking agency power. To that end, there has, in fact, been a spate of cases under the Roberts Court in which various Justices openly lamented the size and power of the administrative state. Gundy v. United States was one particularly notable case—not for its outcome but for the signals sent by concurring and dissenting opinions on the breadth and depth of their concerns about the administrative state. While concurring in the judgment, Justice Samuel Alito expresses a willingness to revisit the Court’s lenient approach to delegation: “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” Justice Neil Gorsuch, in dissent, admits to no such patience. He describes unchecked delegation as dangerous because it allows bodies other than Congress to limit the liberties of the people. That power, he says, was vested in Congress alone. “No one, not even Congress, had the right to alter that arrangement.” Whether one agrees with Justice Gorsuch’s view or not, one thing is obvious in the discourse—the stakes are high.

That the stakes are high, that administrative law is driven by constitutionally rooted concerns about government structure, helps explain the power of the impulse to look to administrative law as a driver in resolving disputes. In other words, it helps explain why jurists might focus on the issues that animate administrative law and inadvertently overlook the normative choices that Congress makes in substantive areas like environmental law.

And yet, there are compelling reasons why courts should approach with caution the impulse to reach for administrative law as a way through environmental disputes. Those reasons—namely, the risk of transferring too much power to the least democratic branch—are more fully explored in Part III. For now, the point is simply that environmental law and administrative law serve distinct values and are not interchangeable. Each of those sets of values are important in their own right: the stakes are high in ensuring that the tripartite democracy functions properly, and the stakes are high in ensuring that the natural systems upon which humanity depends are thriving. When courts layer administrative law frameworks on top of the relevant substantive statutes that lie at the heart of the cases before them, it is the duty of courts to ensure both sets of values are upheld to the fullest extent possible. As the next Part examines, that has not happened. And that is why change is necessary.

II. How and Why Administrative Law Has Played an Outsized Role In Shaping Environmental Policy

While judges may be in a bit of a double bind as they balance the sometimes-competing values of environmental and administrative law, the two legal frameworks are not currently working together to ensure the success of environmental law. Administrative law, at least in the realm of environmental and natural resources laws, has overflowed its banks and is playing an outsized role in shaping normative environmental policy. The result is detrimental to environmental law, undermining the many commands and bold visions set out in congressional statutes.

This Part starts by considering various case examples to show how the Supreme Court has pulled on the levers of administrative law to undermine the codified purpose of environmental laws. This Part goes on to examine the features of administrative law that allow such outsized influence to happen.

A. Prominent Supreme Court Examples

While administrative law can operate at all levels of the judicial system to undermine environmental law, the Supreme Court sits at the apex of power and has a particular responsibility in ensuring administrative law doctrines uphold the integrity of both administrative and environmental law. Therefore, this Part examines four prominent cases (or lines of cases) in which the Supreme Court has substantially diminished the vigor or reach of federal environmental law through the application of administrative law: Lujan v. Defenders of Wildlife and the standing line of cases that keep environmental plaintiffs out of court; Robertson v. Methow Valley Citizens Council and the sidelining of NEPA’s substantive commands; Michigan v. EPA and the use of administrative law’s imprecision to write cost considerations into a statute; Sackett v. EPA and the waters of the United States (WOTUS) line of cases that create regulatory instability by taking inconsistent approaches to agency deference and statutory interpretation more generally.

1. Lujan v. Defenders of Wildlife: Using Standing to Restrict Judicial Review of Environmental Law’s Public Interest Values

Much has been said about the judiciary’s use of the standing doctrine to close the gates on environmental public interest litigation and, more generally, as a nefarious tool for advancing ideologies. The Supreme Court’s 1992 decision in Lujan v. Defenders of Wildlife is a prime example of how Article III standing is used to diminish the public interest values at the heart of environmental laws.

In Lujan, international dam projects threatened the survival of three iconic species: the Asian elephant, the leopard, and the Nile crocodile. Those dam projects received funding from a U.S. federal agency. The Endangered Species Act (ESA) requires all federal agencies to consult with the U.S. Fish and Wildlife Service before taking any action that “may” (as in, could or might) “jeopardize the continued existence of any endangered species.” There was no question that the agency, here, the U.S. Agency for International Development, failed to consult with the U.S. Fish and Wildlife Service before approving funds. There was also no question that § 7 of the ESA generally applies when an agency provides funding for the kind of projects at issue in Lujan. But there was one hitch: because these dam projects were located in Sri Lanka and Egypt, there was a question as to whether the ESA requires consultation under § 7 for projects located outside the United States.

The Supreme Court never reached the merits of that question. Instead, in a splintered decision, the Court dismissed the case on standing. In doing so, Justice Scalia advanced an asymmetrical theory of standing that intentionally made it more difficult for public interest plaintiffs to advance their claims. Under Justice Antonin Scalia’s view, a plaintiff like Defenders of Wildlife should have a tougher time seeking judicial review than a plaintiff like Exxon:

When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed . . . . Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily “substantially more difficult” to establish.

In this way, Justice Scalia created an access-to-justice gap in environmental law and stated a preference for the judiciary’s role in vindicating the rights of corporate plaintiffs over public interest plaintiffs. Asymmetric access to courts, after all, means asymmetric checks on agency decisions. Lujan opened the door for courts to become a more powerful venue for asserting agency overreach rather than challenging underreach (or inaction). In that sense, Lujan advances a deregulatory agenda.

The asymmetric standing in favor of regulated entities is at odds with the normative aims of environmental law. Congress enacted the major federal environmental statutes to protect public health and conserve natural resources for the benefit of future generations. To back up those public interest values, Congress wrote citizen suit provisions into many of the major federal environmental statutes—specifically so that private citizens who are not regulated entities can fortify the resources of the Executive Branch in enforcing these public interest laws. This central feature of many environmental statutes, as well as the APA’s presumption in favor of judicial review, is sidelined in the Court’s use of standing to selectively limit access to public interest litigants. While Justice Scalia addressed whether citizen suit provisions can alone create a path to judicial review, he did not explain why citizen suit provisions—as a symbol of congressional intent to encourage public interest litigation—should be cast aside when assessing whether an asymmetrical view of standing is defensible, necessary, or even wise.

In a second blow to congressional intent, the Court brushed aside the codified purpose of the ESA in the course of considering which cognizable harms ought to support standing: “It makes no difference,” Justice Scalia said, “that the general-purpose section of the ESA states that the Act was intended in part ‘to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.’” Again, it makes sense that a purpose statement alone cannot create particularized injury, but it is less clear why the congressional stated concern for species and their ecosystems would be irrelevant to whether the ecosystem nexus theory of harm asserted by the plaintiffs can satisfy the injury-in-fact requirement.

To be very clear, none of this is to suggest that the very existence of a citizen suit provision or the public interest purpose of the ESA could excuse an individual plaintiff from showing concrete and particularized harm in satisfaction with Article III. It is worth remembering, however, that the Article III standing requirement is born from fairly skimpy text: that the judicial power is limited to actual “Cases” or “Controversies.” As Cass R. Sunstein observed: There is nothing in the Constitutional text that would require the Supreme Court to ignore Congress when evaluating whether a dispute presents a case or controversy. Justice Anthony Kennedy, in fact, wrote separately in Lujan to emphasize his view that congressional intent is not at all beside the point: “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court’s opinion to suggest a contrary view.” Some scholars have even urged that Congress has not just the power but also the knowledge to identify cognizable injuries: “Standing often depends on attributes of the injury alleged that are better evaluated by Congress than by the judiciary.”

It is also worth remembering that more is not better when exacting standing requirements. Administrative law’s transparency and accountability—those furthered by the very prospect of judicial review—are diminished by an unnecessarily demanding standing doctrine. Indeed, some have questioned whether the Constitutional text can even support, let alone require, the level of judicially-sponsored arbitrariness that comes from selectively opening and closing access to courts based on increasingly exacting standards of what constitutes injury-in-fact. In other words, standing—if it becomes too demanding—overflows the banks of its assignment (to prevent courts from issuing advisory opinions) and actually undermines other values at play (accessing courts to balance the power of agencies and uphold the intent of Congress).

All of which is to say that judicial restraint would have counseled for an approach to Article III standing that respects both the constitutional text and congressional intent where possible. In Lujan, the Court did not proceed with restraint. Instead, it adopted an aggressive and asymmetrical reading of Article III with the effect of sidestepping congressional intent. In doing so, the standing doctrine, as created and applied by the Supreme Court in Lujan, offends values at the heart of both environmental law and administrative law. To anyone doubtful that the plurality was taking particular aim at environmental law, consider Justice Harry Blackmun’s dissent, where he cautions that “environmental plaintiffs are under no special constitutional standing disabilities” and describes the Court’s opinion as a “slash-and-burn expedition through the law of environmental standing.” Justice Blackmun understood correctly that this case was an assault on environmental standing.

In the end, Lujan illustrates how the doctrine of standing can be applied in ways that undermine both environmental law and administrative law. Most importantly, Lujan’s use of standing to diminish the public interest voice implementing environmental laws is fundamentally at odds with the public-minded values undergirding those laws to begin with. In addition, the selective closing of the courthouse doors is at odds with the access that Congress affords nonregulated entities through citizen suits provisions contained in many federal environmental statutes, the accountability values of administrative law, and the presumption in favor of judicial review that is a bedrock feature of the federal APA.

2. Robertson v. Methow Valley Citizens: Using Vague Notions About the Court’s Role in Judicial Review to Sideline Substantive NEPA

Standing, though perhaps the most recognizable tool for sidestepping the substance of environmental law, is not the only lever that courts pull to downgrade the force of environmental law. In the next case example—Robertson v. Methow Valley Citizens—administrative law plays a more subtle but no less devastating role in the judiciary’s rewriting of the NEPA. Indeed, in this 1989 decision, one can appreciate how broad-brush administrative law truisms can creep into environmental law with significant consequences for otherwise clear (albeit broad) congressional commands.

All students of environmental law are familiar with the Supreme Court’s catchy admonishment that “NEPA merely prohibits uninformed—rather than unwise—agency action.” That is, NEPA is procedural, not substantive. But when charged with actually reading the statute, these same students rightfully scratch their heads and wonder how the Court could be so confident that NEPA is purely procedural when § 101 declares that “it is the continuing responsibility of the Federal Government to use all practicable means” to among other things “attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences.”

Students who read this language and presume a substantive duty are not alone. In the early days, lower courts and scholars alike had read this text to establish an affirmative duty on federal agencies to make environmental protection part of their mission. One of the most prominent examples of how early courts accepted NEPA as imposing substantive duties is found in the D.C. Circuit’s Calvert Cliffs’ Coordinating Committee, Inc. v. U.S. Atomic Energy Commission decision. In this 1971 decision penned by Judge J. Skelly Wright, the D.C. Circuit starts by acknowledging that § 101 sets out the “basic substantive policy” of NEPA. And while the court understood that the court’s precise role in reviewing the substance of the agency’s decision was more limited than the court’s role in policing NEPA’s procedural requirements, some review of the substance was undoubtedly presumed:

[I]t remains to be seen whether the promise of this legislation will become a reality. Therein lies the judicial role. In these cases, we must for the first time interpret the broadest and perhaps most important of the recent statutes: the [NEPA]. We must assess claims that one of the agencies charged with its administration has failed to live up to the congressional mandate. Our duty, in short, is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy.

During the course of its discussion, the court suggested that the arbitrary and capricious standard of review would provide the appropriate framework for the court’s role in ensuring § 101’s substantive demands were respected. Other circuit courts followed the lead of Calvert Cliffs’, applying an arbitrary and capricious standard not just to the question of whether agencies examined all relevant impacts under NEPA but also as to whether the chosen alternative respected the substantive policies set out in § 101. In the early days, the Council of Environmental Quality did too.

The upshot is that, in the early days, lower courts and the federal agency charged with implementing NEPA understood it to contain reviewable substantive commands. As Judge Wright understood in his examination of NEPA in Calvert Cliffs’, there was no doubt that reviewing the substance of agency decisions would be tricky business for courts. Still, short of a decision that such a congressional command is too vague to be enforced, one ought to struggle mightily to accept the judiciary’s prerogative to read substance entirely out of a statute without a solid theory and thorough explanation.

And yet, today, judicial opinions are left with the oft-repeated and rarely challenged mantra that NEPA is procedural only. So where did this rewrite come from—the one that prompted the Supreme Court in Robertson to announce in dicta that “it is now well settled” that NEPA is procedural only?

Several scholars have puzzled over the loss of substantive NEPA. In his detailed retelling of how NEPA lost its substantive thrust, Houck traces the missteps of Robertson back to the compounding imprecision of dicta. That dicta, it turns out, is particularly relevant here because the dicta stemmed predominately from general observations about a court’s role in judicial review and less from direct examination of particular legislative commands. Drawing heavily from Houck’s work, what follows here is a shortened version of the history to highlight how the compounding dicta, centered on administrative law—not the relevant environmental statutory text—ends up playing a key role in NEPA’s demise.

The most direct route to appreciating how such a consequential policy change manifested from so little is to start with Robertson’s iconic conclusion:

[I]t is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process . . . . If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.

In support for this “well settled” pronouncement, the Court cited three Supreme Court cases. None of the cases actually considered whether NEPA imposed substantive commands. Neither in Kleppe v. Sierra Club (a case considering whether the scope of NEPA’s procedural obligations extended to preparing a comprehensive impact statement for coal development in a four-state region), nor Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. (a case predominantly about rulemaking procedures), nor Strycker’s Bay Neighborhood Council v. Karlen (a case decided without argument and per curiam that reversed the lower court’s conclusion that certain environmental factors should have been given “determinative weight” in the Department of Housing and Urban Development’s (HUD’s) decision to fund an urban renewal project), did the Court ever squarely take up the question of whether NEPA was substantive.

The decision in Strycker’s Bay comes closest. There, the Court of Appeals conceded that HUD’s analysis passed procedural muster under NEPA. Nevertheless, the Court reversed the agency decision on the grounds that when HUD considers such projects, “environmental factors, such as crowding low-income housing into a concentrated area, should be given determinative weight.” The Supreme Court reversed, citing Vermont Yankee’s description of NEPA as “essentially procedural.” In this short opinion, one finds no analysis to speak of. No examination of NEPA’s text. No discussion of NEPA’s purpose. Only cursory conclusion and reliance on Vermont Yankee.

If the layers of the onion are peeled back a bit more, one might observe that Vermont Yankee was largely devoted to administrative law-centered questions about whether courts can graft additional rulemaking procedures on those required by Congress in the APA. Once again, the substantive provisions of NEPA were not at issue. No doubt that the Supreme Court harbored concerns about the lower court’s willingness to insert itself in not just the procedure but also the substance of the agency’s decision to grant Vermont Yankee a permit. To that end, the tail end of Vermont Yankee admonishes the lower court that it no doubt forgot it must not substitute its own judgment for that of the agency. And in a last effort to rein in the lower court by making some “further observation[s] of some relevance,” the Court concludes without analysis that NEPA is “essentially procedural.”

Poof. Something out of nothing. Four cases cited in Robertson for a well-settled proposition that was never properly considered. And the magic ingredient? A truism courtesy of administrative law.

To get the full appreciation of how compounding dicta snowballed to bury NEPA, consider not just Robertson’s general reliance on Kleppe v. Sierra Club but consider Roberston’s particular reliance on Kleppe v. Sierra Club’s footnote twenty-one:

Neither the statute nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions. The only role for a court is to insure that the agency has taken a “hard look” at environmental consequences; it cannot “interject itself within the area of discretion of the executive as to the choice of the action to be taken.”

This footnote, incidentally, was also relied on by the Court in Strycker’s Bay and Vermont Yankee. And yet, in this footnote, one finds nothing remarkable. It seems fairly obvious that courts would not be invited to substitute their own conclusions for work assigned by Congress to an agency. That much is written into the APA’s “arbitrary [and] capricious” standard of review, which governs NEPA challenges and which the D.C. Circuit already presumed (in Calvert Cliffs’) would be applied to the substantive commands of NEPA. Equally important, nowhere in this footnote does the Court discuss NEPA’s substantive commands. A court, in other words, would be equally advised not to substitute its own conclusions for that of an agency as to whether NEPA was procedural in nature (that is, NEPA requires agencies to assess impacts) or whether NEPA was substantive in nature (that is, NEPA requires agencies to select less environmentally destructive alternatives when feasible).

No additional comfort is forthcoming if one keeps following the trail of citations. If one reads the two cases cited in footnote twenty-one, one encounters simply more dead ends on the quest to find some analysis of NEPA and its history to determine whether Congress meant to impose substantive commands. Both cases can better be described as early 1970s cases where lower courts were wrestling with the appropriate approach to judicial review of agency decisions in a more general sense.

The Second Circuit’s decision in Scenic Hudson Preservation Conference v. Federal Power Commission involved a challenge to a pump storage project approved by the Federal Power Commission along the Hudson River. The Commission had granted the original license for the project before NEPA was even enacted. The environmental plaintiff had successfully challenged the grant of the original license under § 10 of the Federal Power Act, which lays down certain substantive limits on the Commission’s authority to issue licenses. In the meantime, while the Commission was undertaking the work to comply with the remand order, NEPA was enacted. Most of the Second Circuit’s opinion was devoted to the question of whether, in regranting the license after making significant changes to the original project, the Commission had violated § 10 of the Federal Power Act and the court’s previous remand order.

Eventually, the court took up plaintiffs’ contentions that the substantive commands of NEPA required a different decision by the Commission. In addressing this claim, the court did not engage in any robust examination of the discussion about NEPA or congressional intent in the passage of NEPA on the issue of substance. The court simply offered a conclusory statement, with no citation, that:

The policy statement in Section 101 envisions the very type of full consideration and balancing of various factors which we, by our remand order, required the Commission to undertake. Like our remand, the Act does not require that a particular decision be reached but only that all factors be fully explored. The eventual decision still remains the duty of the responsible agency.

To be fair, this statement—made without support and buried in the depths of a decision devoted to addressing not the substantive limits of NEPA but the Federal Power Act—is actually related to the claim eventually made in Robertson. Still, one can hardly go so far as to assert that it supports the notion that NEPA’s procedural nature is “well settled.”

Footnote twenty-one’s citation to Natural Resources Defense Council v. Morton is no more useful a hook for NEPA’s eventual undoing. The case involved a NEPA challenge to an oil lease granted by the Department of Interior in the Gulf of Mexico. The entire opinion is devoted to issues properly categorized as procedural NEPA, mostly focused on whether the agency adequately addressed a range of alternatives. At the end of the opinion, Judge Harold Leventhal—in dicta—offers a view of how courts should balance their roles with agencies. He says:

A final word. In this as in other areas, the functions of courts and agencies, rightly understood, are not in opposition but in collaboration, toward achievement of the end prescribed by Congress. So long as the officials and agencies have taken the “hard look” at environmental consequences mandated by Congress, the court does not seek to impose unreasonable extremes or to interject itself within the area of discretion of the executive as to the choice of the action to be taken.

That is it. Nothing in the opinion or this quotation appears to comment on whether NEPA contains substantive commands. It is simply a general observation about the boundaries that one would expect from courts when applying the arbitrary and capricious standard of judicial review.

Pulling out from the details of this jurisprudential swirl, a few summative observations. First, Robertson was wrong to conclude that NEPA was procedural only or that such a conclusion was “well settled.” The confluence of cases giving rise to NEPA’s demise is not—individually or in the aggregate—robust in their examination of NEPA. Rather, one finds but a series of general observations by courts about their role in judicial review. The cases relied on by Robertson (directly or indirectly) are best thought of as reflecting a broader set of administrative law concerns animating courts during a particular era. The era was the early 1970s. NEPA was new. Many statutes delegating broad power to agencies, both in and outside the environmental context, were newly enacted. Rulemaking as a form of setting policy was on the rise. In short, courts were naturally wrestling with the scope of judicial review and their role in it. In remarking on the propriety of courts substituting their judgment for that of agencies, these courts were not necessarily wrestling with the question of whether NEPA imposed substantive commands. Those are two very different issues, ones that the Supreme Court ultimately conflated in Robertson.

At worst, the policy that emerged from Robertson can be said to be contrary to legislative text. At best, the policy that emerged without critical examination of the relevant text. Either way, a bedrock environmental statute was stripped bare of its substantive commands by a vague recitation of a court’s role in judicial review. To be fair, it is not clear whether the downgrading of NEPA in Robertson was entirely intentional. But that is beside the point. The potential for administrative law to blur the focus of courts on congressional commands, even if inadvertent, is relevant to examining whether administrative law can overflow its banks.

3. Michigan v. EPA: Using the Flexibility in Deference and Judicial Review Doctrines to Write Additional Terms into Statute

Michigan v. EPA—a 2015 decision involving EPA’s decision to regulate mercury from coal-fired power plants—is a good example of how the flexibility of administrative law’s judicial review and deference doctrines allow courts to inject themselves into environmental policy. More specifically here, the imprecise arbitrary and capricious standard of review, alongside the ill-defined lines between the Chevron doctrine’s two steps, created a pathway for the Supreme Court to read cost into the Clean Air Act in ways that are not obviously required given the law’s underlying public health commands.

The broad contours of the case are fairly straightforward: The Clean Air Act directs EPA to regulate hazardous air pollutants from power plants when doing so is “appropriate and necessary.” In 2012, EPA adopted a final rule setting mercury and other emission standards for power plants. In deciding whether regulating mercury emissions was indeed appropriate and necessary, EPA focused on public health issues. The Clean Air Act was silent as to whether EPA needed to consider costs when determining whether it was appropriate and necessary to regulate. EPA interpreted the Act such that it did not require the agency to consider costs. Rather, EPA chose to consider costs later in the regulatory process when setting the limits of mercury emissions. The Supreme Court held that EPA should have considered cost when deciding whether to regulate, not merely in considering how much to regulate, because cost is a “centrally relevant factor” to regulatory decisionmaking. Failure to consider cost before concluding it was appropriate and necessary to regulate rendered EPA’s decision arbitrary and capricious, according to the Court.

The Supreme Court’s decision is remarkable in a couple of ways that show how administrative law frameworks shape substance. First, in the face of congressional silence, the Court injects a pro-cost presumption into a public health statute. The Court reached this conclusion even though in two previous decisions interpreting the Clean Air Act the Court had concluded that congressional silence as to cost either meant EPA could not consider cost, or meant EPA had the choice to make that call. Second, the case is remarkable because of the Court’s use of flexibility in administrative law’s judicial review frameworks to achieve that substantive outcome.

The case presented a classic dispute over statutory interpretation that would be resolved through application of the well-established Chevron doctrine. Under that doctrine, one would have expected the Court to either find that congressional intent to require cost was clear or to defer to EPA’s interpretation if it were reasonable. But the Court did not take a straightforward path. Instead of emphasizing ambiguity, deference, and agency expertise, the Court focused on the breadth of the term “appropriate” as “the classic broad and all-encompassing term that naturally and traditionally includes consideration of all the relevant factors.” Having determined that EPA was required to consider all relevant factors, the Court explained that “the phrase ‘appropriate and necessary’ requires at least some attention to cost.” Appealing to something of a common sense line of argument, the Court remarked: “One would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.”

In reaching this conclusion—in a case that seemed to squarely present an issue of statutory interpretation—the Court found a path that seems to follow neither step one nor step two of Chevron. On the one hand, the Court concluded that cost must be considered, and in so holding implies there is no other rational approach to the statute. This only-one-way reading is classically step one. On the other hand, when arriving at the conclusion that there is only one rational way to read the statute, the Court used its common sense as the primary guide, not the traditional tools of statutory construction that have long been tied to step one analysis. The flexibility of reasoning suggests a step two analysis.

There is a strategic reason why the Court may not have wanted to differentiate its analysis as to step one or step two. By muddying the methodological waters, the Court could introduce yet another multi-factored review framework (and its attendant flexibility) to the mix. That is, in discussing the reasonableness of the agency’s interpretation, the Court reached for the arbitrary and capricious standard of review. By enlisting this standard, the Court gained access to the well-known State Farm factors, which make “fail[ure] to consider an important aspect of the problem” one of the hallmarks of arbitrary decisionmaking. And with that factor in hand, the Court was free to pontificate on what are important aspects of the problem (namely cost).

On its face, Michigan v. EPA seems to logically follow established frameworks. This gives its analysis an air of legitimacy. It would not exactly have been news at the time that the arbitrary and capricious standard of review is sometimes imported in step two of the Chevron inquiry. There is, after all, logical overlap in the questions of whether an agency interpretation is reasonable and whether it is nonarbitrary. Still, by switching tracks and importing the arbitrary and capricious standard, the Court behaved unusually. Namely, the Court managed to avoid the deference usually afforded agencies under step two while at the same time avoiding the usually deferential standard of arbitrary and capricious review. All without expressly stating whether congressional intent (and opposed to judicial preference) was clear.

In the end, one cannot help but sense that the Court engaged in a sleight of hand through a choose-your-own-adventure approach to judicial review. The Court engaged the judicial review doctrines with a deftness that allowed it to avoid the direct issue of whether congressional intent was clear (a classic step one question) while also avoiding the deference that would typically have been afforded to agencies in the face of statutory ambiguity (a most typical step two outcome) as well as avoiding the deferential approach and longstanding admonishment that “[t]he court is not empowered to substitute its judgment for that of the agency” when applying the arbitrary and capricious standard of review. When the Supreme Court eventually overruled Chevron in Loper Bright, it did so partly because Chevron and the ambiguous concept of ambiguity were too malleable and therefore prone to arbitrariness. In many ways, the Michigan v. EPA decision is a testament to that idea.

Not only that, but in this opinion, Justice Scalia gave a master class in how to operationalize administrative law to drive the values of environmental law. The Court navigated the interstices of administrative law frameworks in a way that let the Court’s own perception of common sense drive the statutory requirements rather than the traditional tools of statutory construction—even when the outcome flows unnaturally from the public health goals of the underlying statute. The outcome surely was not required by the structure, text, or history of the statute (or by the Court’s own precedent).

4. Rapanos and Sackett: Creating Regulatory Instability Through Moving Targets of Statutory Interpretation and Deference

The next example of how the Supreme Court has operationalized administrative law to undermine environmental law comes from the so-called “WOTUS” lines of cases. In these cases—which span from 1985 to 2023—the Supreme Court sought multiple times to clarify the jurisdictional reach of the Clean Water Act. In United States v. Riverside Bayview Homes, Inc. (1985), Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) (2001), Rapanos v. United States (2006), and Sackett v. EPA (2023), the Court tackled the same basic question of statutory interpretation: what is the meaning of the phrase “waters of the United States” as it relates to the jurisdictional reach of the Clean Water Act? The question of wetlands regulation proved particularly contentious. Time and time again, questions arose about the extent to which those wetlands must be connected—hydrologically, functionally, or otherwise—to traditionally navigable waters in order to be covered by the Clean Water Act.

In the nearly forty years that it has taken for the Court to clarify, confuse, and reclarify this singular question, some useful insights may be gained. First, the Supreme Court has not been consistent in its approach to deference or power-sharing with EPA when it comes to wetlands regulation. Second, the Supreme Court reaches for extra-statutory canons when it wishes to assign itself more power in setting environmental policy. Third, when the Court takes inconsistent approaches to statutory interpretation and deference, regulatory instability ensues. That instability undermines the success of the Clean Water Act by perpetuating uncertainty and sowing frustration among regulated entities.

A full dissection of the WOTUS line of cases could be, and has been, a body of scholarship in and of itself. Nonetheless, a brief summary of these cases and their approaches highlight how the Supreme Court—particularly through inconsistent methodology and approach to deference over time—has contributed to the regulatory uncertainty that has plagued certain aspects of the Clean Water Act.

In 1985, the Supreme Court decided United States v. Riverside Bayview Homes. The issue presented was whether “wetlands adjacent to navigable bodies of water and their tributaries” are subject to the Clean Water Act’s permitting requirements. The Court’s decision is notable for several reasons that would eventually set it apart from later opinions tackling virtually the same question. First, the opinion was unanimous. The issue presented, Justice Byron White said, was “an easy one.” Second, respect for agency expertise and judicial restraint took center stage in the Court’s analysis. To that end, guided by the Chevron doctrine, the Court noted that “our review is limited to the question whether it is reasonable, in light of the language, policies, and legislative history of the Act for the Corps to exercise jurisdiction” over the adjacent wetlands. Third, in recognizing that it is “no easy task” to determine where “water ends and land begins” and that linguistics provided no ready answer, the Court turned to the purpose of the Clean Water Act to assist in determining whether the agency’s judgment was reasonable. That purpose, set out in statutory text, is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Recognizing the Act “constituted a comprehensive legislative attempt” to protect and enhance water quality, and recognizing the agency’s expert conclusion that adjacent wetlands play a key role in doing just that, the Court concluded that the agency’s “ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act.”

That unanimous conclusion reflects the tenor of the opinion as a whole. Throughout the opinion the Court focused on two things: giving voice to congressional intent and giving due respect to agency expertise on what the Court clearly understands are complex ecological determinations. The Court does not insert itself or its view any more than necessary. The Court does not strain to make this a case where congressional intent is clear because the Court does not bristle at sharing power with agency expertise.

In 2001, in SWANCC, the Supreme Court again tackled the meaning of the phrase “waters of the United States.” At issue in SWANCC was the applicability of the Clean Water Act to an abandoned gravel pit with no hydrologic connections to any interstate waters. That pit had been filled in and, over time, reverted to successional forest and seasonal ponds used as habitat for migratory birds. Under the so-called “Migratory Bird Rule,” the agencies asserted jurisdiction over even these wholly intrastate ponds because they supported migratory birds. Writing for a 5–4 majority in an opinion delivered by Chief Justice William Rehnquist, the Court held this was a bridge too far.

In concluding that wholly intrastate and hydrologically isolated wetlands fell outside the reach of the Clean Water Act, the Court started with the familiar purpose of the Clean Water Act: “Restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters.” That purpose was critical to determining why isolated wetlands, with no hydrologic connection to interstate waters, were different from those considered in Riverside Bayview Homes. As the Court characterized its previous opinion in Riverside Bayview Homes, it was “Congress’[s] concern for the protection of water quality and aquatic ecosystems [that] indicated its intent to regulate wetlands ‘inseparably bound up with the “waters” of the United States.’” In other words, the Court went on, “It was the significant nexus between the wetlands and ‘navigable waters’ that informed our reading of the CWA in Riverside Bayview Homes.”

From this, two more observations can be made. First, in SWANCC, the Court was still looking to the purpose of the Act—namely, water quality protection—as a fundamental component of determining how far Congress intended the Clean Water Act to reach. Second, the phrase “significant nexus” is introduced by the Court as a relevant touchstone for determining what kinds of wetlands appropriately fall within the Clean Water Act’s jurisdiction.

One more aspect of SWANCC is useful when considering the broader story of how the Court’s involvement in shaping the Clean Water Act’s jurisdiction has evolved. Recall Riverside Bayview Homes and the deferential role it assumed in recognizing the reasonableness of the Army Corps’ “ecological judgment.” SWANCC turns away from the more judicially restrained approach taken in Riverside Bayview Homes and, in contrast, finds no deference is warranted. How can this be, when the governing judicial review framework was the Chevron doctrine and the statutory phrase at issue was “waters of the United States”?

SWANCC justifies refusing deference in two ways. First, the Court says, “[w]e find § 404(a) to be clear.” The Court does not elaborate why the phrase “waters of United States” is clear in SWANCC but not in Riverside Bayview Homes. Presumably, the Court meant that the question of whether wholly isolated intrastate wetlands constituted “waters of the United States” was clear, whereas the question of whether adjacent wetlands constituted “waters of the United States” was not. Still, the Court did not qualify its statement in this way. Instead, the Court went on to explain why—even absent clarity—no deference would be warranted. This is a shift from Riverside Bayview Homes and one that will carry through to Rapanos and Sackett. To that end, the Court declares that “[w]here an administrative interpretation of a statute invokes the outer limits of Congress’[s] power, we expect a clear indication that Congress intended that result.” The Court adds that the federalism concerns raised by a broader reach of the Clean Water Act also counsel for a less deferential approach. Here, one sees a first glimpse at how turning to extra-statutory cannons allows the Court to defer less and talk more. That approach, Justice John Stevens observes in dissent, “is unfaithful to both Riverside Bayview and Chevron,” doing “violence to the scheme Congress chose to put into place.”

At the end of the day, SWANCC is not remarkable because of its outcome. The idea that wholly isolated intrastate wetlands are not covered is not too surprising, especially if one takes the view that the purpose of the Act is not to provide general habitat protection for nonaquatic species. Still, one wonders whether the Court could have arrived at the same conclusion through other, less meddlesome means. What is more remarkable is the reasoning of SWANCC. First, in the way that the Court creates a larger and more permanent role for itself in shaping environmental policy by framing the question of deference as one required by federalism and lurking constitutional concerns. Second, in the way that the Court inserts a new touchstone into the examination of wetlands jurisdiction—significant nexus. This touchstone, the Court explains, is “inseparably bound” with the purpose of the Act.

Just five years later, in its 2006 opinion in Rapanos, the Court capitalizes on the “defer less, talk more” groundwork that it laid in SWANCC. Some members tried anyway. Rapanos is a badly splintered decision that raises more questions than it answers. Justice Scalia wrote for a four-Justice plurality; he was joined by Chief Justice John Roberts, Justice Clarence Thomas, and Justice Alito. Justice Kennedy filed a separate concurrence, as did Chief Justice Roberts. Justice Stephen Breyer and Justice Stevens each filed their own dissents. The interpretive issue again turned on the breadth of the operative phrase “the waters of the United States.” More specifically, the two consolidated cases before the Court presented “whether four Michigan wetlands, which lie near ditches or man-made drains that eventually empty into traditional navigable waters, constitute ‘waters of the United States’ within the meaning of the Act.”

Taking an atomistic view of both nature and statutory text, Justice Scalia bristled at the breadth of the Clean Water Act with respect to both wetlands and non-navigable tributaries. He focused on the word “the” and the statute’s use of the plural form “waters” to argue that EPA’s authority did not extend to all water but to some more limited subset of waters—a subset that did not include certain non-navigable tributaries and wetlands adjacent to those tributaries notwithstanding their water quality impacts on more traditionally navigable waters. He concluded that “only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act.” And, “on its only plausible interpretation, the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’” In the course of coming to this conclusion in which he narrows the covered wetlands and the covered waters, Justice Scalia spends most of his effort dissecting the dictionary and engaging in various linguistical acrobatics.

As a departure from Riverside Bayview Homes and SWANCC, Justice Scalia gives little purchase to Congress’s desire to protect water quality or the role of wetlands in serving that purpose. In fact, he criticizes the dissent for giving too much consideration to “strictly ecological” reasons. By contrast, Justice Scalia did find instructive Congress’s stated purpose of preserving the primary rights and responsibilities of States, which he used to set up a clear statement rule demanding more clarity from Congress and less deference to the agencies as the Court had in SWANCC.

As to deference, any citation to the governing administrative law framework for judicial review of statutory interpretations is absent in Justice Scalia’s opinion. That is, he does not cite to Chevron nor invoke its frame other than to conclude his proffered interpretation is the “only plausible” reading of the statute and that “[e]ven if the term ‘waters of the United States’ were ambiguous” the clear statement cannons would render the Corps’ interpretation impermissible. Clearly, the Chevron frame is at play in the background here, but the obscurity signals that the Court is reticent to acknowledge, let alone apply, a power-sharing framework here.

Justice Kennedy concurred in the judgment. He agreed the Clean Water Act did not reach the wetlands at issue in Rapanos, but he offered a different test that would eventually become the one preferred by both the agencies and the lower courts. Kennedy would have extended jurisdiction to waters or wetlands with a significant nexus to traditional waters. This “significant nexus” test retained a focus on the function of wetlands in protecting water quality. Like in Riverside Bayview Homes, Justice Kennedy was mindful that “[i]mportant public interests are served by the Clean Water Act in general and by the protection of wetlands in particular.” To that end, he took note of the “plurality’s overall tone and approach,” which he characterized as “unduly dismissive of the interests asserted by the United States in these cases.”

At least two relevant observations flow from the splintered Rapanos decision. First, Justice Scalia’s approach in Rapanos stands in marked contrast with Riverside Bayview Homes. In Riverside Bayview Homes, the Court was guided by the purpose of the Clean Water Act to protect aquatic ecosystems, and it heeded the expertise of the agency delegated responsibility to implement the Act. Second, the inability of the Court to provide a cohesive answer in Rapanos created regulatory uncertainty. EPA and the U.S. Army Corps of Engineers struggled to craft a rule that colored within the lines of Supreme Court jurisprudence and could withstand either legal challenges or changing political winds.

Most recently, in Sackett v. EPA, the Supreme Court sought once more to provide clarity on nearly the same issue raised in Rapanos. This time, a new makeup of the Court sought to finish what Justice Scalia started in Rapanos—that is, to limit the reach of the Clean Water Act to wetlands with a hydrological connection to traditional waters. Indeed, the holding of Sackett is merely a series of quotes and citations to Rapanos.

Like Justice Scalia’s opinion in Rapanos, Sackett is a far cry from Riverside Bayview Homes. Characterizing the Clean Water Act as a “potent weapon” (as opposed to, say, a valuable public health statute), Justice Alito derides EPA for having the audacity to take an expansive view of the Act’s jurisdictional reach. Justice Alito even chides Congress for its poor drafting choices that have left so much confusion in its wake. There is little attempt to disguise where this Court believes the locus of power should lie or the respect that should be afforded congressional intent. Any deference to agency expertise or semblance of respect for the purpose of the Clean Water Act is long gone. The clear statement canons of construction give the Court space to take a heavy hand in resolving ambiguities and diminishing the voice of Congress. The Court sidelined the basic water quality concerns driving the Act. In fact, Justice Alito chastises EPA for raising the ecological consequences of an adverse decision—ecological consequences are swept aside as “policy arguments.” This after Justice Alito spends seven pages raising policy concerns before “start[ing], as we always do, with the text . . . .” The vitriol drips from the page, and one is left to wonder how clean water became so distasteful.

As Justice Alito tells it in Sackett, EPA and the U.S. Army Corps of Engineers are to blame for the regulatory uncertainty (and overreach) that has characterized wetlands regulation under the Clean Water Act. In recounting the history of regulation on these issues, the Court begins by noting that EPA took a broad view of its jurisdiction out of the gate. And though the Court credited the Army Corps with an initially constrained view of its jurisdictional reach, the narrower view “did not last.” Rather, EPA and the Army Corps eventually converged on “expansive” views and adopted “technical” terms for what constituted covered wetlands. From there, more expansion followed Riverside Bayview Homes. Then, vague rules and an “array of expansive interpretations” endorsed by lower courts followed SWANCC. After Rapanos, more “grey areas” were implemented through guidance, and then a “flurry of rulemaking” took a “muscular approach” in 2015. After a failed attempt to replace that “sweeping rule,” a more recent rulemaking returned to a “broader” rule relying on “open-ended factors.”

No doubt the two agencies responsible for implementing the Clean Water Act have had a difficult time arriving at clear rules about what does and does not constitute covered waters. Still, Justice Alito only tells part of the story—leaving out the part where the courts have embraced, even required, an aggressive reach of the Act. At the beginning of the opinion, when Justice Alito recounts that the U.S. Army Corps of Engineers’ narrower reading of the Clean Water Act’s jurisdiction “did not last,” he fails to mention that the United States District Court for the District of Columbia had vacated the Corps’ regulations on the grounds that Congress intended a more expansive reach than the traditional “navigable waters” test would permit. Indeed, the D.C. Circuit held that Congress intended the Act to reach “to the maximum extent permissible under the Commerce Clause of the Constitution.” The Army Corps, therefore, had erred in limiting its authority to anything short of what the Constitution would allow. No doubt this decision shaped the agencies’ approach early on.

There is another important part of the story absent from Justice Alito’s retelling of the history—namely, the part where the Supreme Court has contributed to the uncertainty of the Act’s reach. Indeed, to read Justice Alito’s regulatory history, the agencies have been consistent in their adherence to the so-called expansive view. It is the Supreme Court that can be said to have introduced inconsistency and uncertainty into the picture: The Court, in Riverside Bayview Homes, took a deferential approach, clearly accepted as relevant the function of wetlands in serving the water quality protection goals of the Act, and confirmed that Congress intended an aggressive reading of the statute—one that went to the constitutional limit. The Court, in SWANCC, introduced the relevance of a wetland’s “significant nexus,” which would reappear as a touchstone in Justice Kennedy’s concurrence in Rapanos. It was the Court that, in Rapanos, delivered such a splintered decision, leaving it to agencies and lower courts to figure out the appropriate approach to wetlands jurisdiction. The lower courts, doing what they could with the sometimes overlapping and sometimes divergent messages, largely concluded that Justice Kennedy’s “significant nexus” test was governing. The agencies, taking up Justice Breyer’s suggestion that they clarify the Court’s mess through rulemaking, attempted to do just that.

And what a mess it was. No one was a fan of this uncertainty. But that is not the point. The point is that in the past forty years, the Court has taken an increasingly heavy hand in shaping the precise lines of Clean Water Act jurisdiction. In the course of it, the Court has been inconsistent in its approach to statutory interpretation and deference. It has gone from deference to derision. It has gone from considering the ecological consequences of the question before it to dismissing those consequences as mere “policy arguments” worthy of very little examination. It has gone from robust discussion about the purpose of the Act and the will of Congress to the use of clear statement canons as a way of sidelining Congress’s voice.

In short, the Supreme Court has been complicit in creating ambiguity and regulatory uncertainty under the Act by failing to take a consistent approach to statutory interpretation and deference. If ever there was a story to illustrate how the unsettled levers of administrative law create moving targets for agencies and Congress alike—leaving power fundamentally in the hands of the Supreme Court—this is a story worth paying attention to.

B. Features of Administrative Law Allowing It to Undermine Codified Environmental Laws

Having set the table with some examples, this Part examines why administrative law allows courts to shape environmental policy, sometimes in ways that undermine the normative aims of the environmental statutes. In doing so, this Part suggests that a constellation of three features facilitate the sidestepping of environmental law: First, administrative law is borne from imprecise text and is largely shaped by courts. Second, administrative law discourse is ongoing, and the doctrines animating administrative law values oscillate over time. Third, administrative law doctrines are shape shifters in practice—which is to say that administrative law doctrines are not only unsettled and still undergoing major philosophical changes over time but that in any given moment, the doctrines are flexible enough for jurists to reach for and apply the doctrines in ways that produce quite different outcomes.

Together, these features provide flexibility. That flexibility allows courts to choose their own adventure in creating doctrines, shaping the rigor with which doctrines are applied, ultimately setting policy while maintaining appearances of playing a more arms-length role. Some combination of these features was at work in each of the cases just examined.

1. The Imprecise Textual Origins of Administrative Law

Whether the U.S. Constitution or the APA, administrative law has little in the way of guiding text.

Take, for instance, the separation of powers principles that undergird much of administrative law values. Article I vests “All legislative Powers” in Congress, Article II vests the executive power in the President, and Article III vests the judicial power in the Supreme Court. Still, “with respect to structural provisions, the Constitution contains some remarkable gaps.” The Constitution is silent on the propriety of delegation; the text itself creates no agencies. There is room for disagreement. While some scholars and jurists focus on the vesting of “all” legislative powers in Congress to cast a shadow on delegations, others note that Congress’s powers are augmented by the Necessary and Proper Clause. Peter L. Strauss, for example, has argued that the Constitution’s “silence about the shape of the inevitable, actual government was a product both of drafting compromises and of the explicit purpose” of the Necessary and Proper Clause.

There are also gaps in Article II. While establishing the offices of the President and Vice President, it otherwise “creates rather minimal and poorly defined powers.” As Merrill tells it, the contrast between the expansive powers granted to Congress and the minimal powers granted to the President creates an implied hierarchy in which the legislative powers are meant to be given primacy if ever there was a direct conflict between “what a statute says and what the President does.” Nonetheless, “There is . . . a latent ambiguity about the meaning of legislative supremacy.” It is unclear whether Congress has exclusive power to set policy, whether Congress has the exclusive ability to choose whether to exercise or delegate the power to set policy, or whether Congress simply retains the final word on matters of policy. Which meaning is correct has implications for the propriety of congressional delegations of power to agencies and, therefore, implications for how much deference courts owe agencies when operating in that delegated space. The ambiguities in the Constitution are directly relevant to the role of courts when they engage in judicial review of agency actions.

Looking beyond constitutional text, one might consider whether the APA has anything useful to offer. Adopted by Congress in 1946 in response to the rise of the administrative state during the New Deal Era, the APA does a few important things. It sets out the default procedural requirements for agency rulemaking and adjudication. It establishes a presumption in favor of judicial review, providing “aggrieved” persons a cause of action to challenge final agency actions. It requires courts to “set aside” agency decisions that are “arbitrary, capricious, . . . or otherwise not in accordance with law.” And it expressly requires reviewing courts to make sure agencies are operating within their delegated authority.

Still, the APA is the product of legislative compromise and contains surprisingly few details. The barebones text continues to inspire debate about the basis for procedural requirements that courts impose on notice-and-comment rulemaking. In addition, while the APA sets out the “arbitrary and capricious” review standard, it says little about what that standard means. Similarly, while it instructs courts to “decide all relevant questions of law,” it does not answer directly the question of what courts are supposed to do when faced with mixed issues of law and fact.

What Congress meant by “decide all relevant questions of law” was at the heart of the Supreme Court’s recent decision to overrule Chevron. On the one hand, the APA contained this language when the Supreme Court decided Chevron in 1984. At least some prominent scholars understood that language to support deference doctrines like Chevron: As Merrill explained, “[T]he APA’s directive to ‘decide all questions of law’ was ambiguous, in that it did not foreclose all forms of deference.” And yet, forty years after Chevron was decided, the Supreme Court examined this same text and concluded “it prescribes no deferential standard for courts to employ in answering those legal questions.” Because the Chevron doctrine “cannot be reconciled with the APA,” the Court concluded that Chevron was a “mistake” and should be overruled.

As underscored by the Loper Bright decision, courts are largely left to write their own scripts for judicial review. The nondelegation doctrine. The Skidmore factors. The Chevron doctrine. Mead’s narrowing of Chevron. The major questions doctrine’s pathway to avoiding Chevron entirely. Loper Bright’s decision to overrule Chevron. Not to mention the State Farm factors on what it means to engage in “arbitrary and capricious” decisionmaking. Or the Auer, now Kisor, deference doctrine for agency interpretations of their own regulations. All of these foundational doctrines define the role of courts, the limits of congressional delegations, and an agency’s freedom to use the powers it has been delegated. All of these doctrines are largely constructed, deconstructed, and reconstructed by the Supreme Court over time.

In Lujan, the lack of text translates into Supreme Court power to erect barriers to judicial review through standing. The standing doctrine and all of its modern machinations derive from Article III’s “case or controversy” requirement. From that simple phrase, the Court is able to justify some fairly exacting standards that have served to keep environmental plaintiffs out of court.

In West Virginia v. EPA, as well as the WOTUS line of cases, the lack of guiding text gives the Supreme Court flexibility in deciding when to defer to agencies on issues of statutory construction, when to demand more clarity from Congress, and when to simply take the lead in saying how far a law extends. Despite the well-established Chevron doctrine in existence at the time these decisions were made, the Court managed to avoid the doctrine entirely.

In Robertson, the Supreme Court got tangled up in dicta derived from general notions that courts should not substitute their judgment for that of agencies. The lack of precision in the underlying intuition about the role of courts translated into a lack of precision as to the correct interpretation of NEPA. In Michigan v. EPA, doctrines and standards tethered to imprecise text allowed the Court to choose its own adventure of review, ultimately writing cost into the Clean Air Act based on the Court’s common-sense observations rather than firm evidence of congressional intent.

In all these cases, the glide path for the Court to shape environmental policy is set by imprecise textual foundations of administrative law. The flexibility that is afforded by the imprecise text, in other words, creates space for courts to insert values, requirements, or barriers that are not necessarily reflected in underlying environmental statutes.

2. The Unsettled Nature of Foundational Doctrines

Not only are administrative law doctrines built from imprecise text, but they oscillate over time. The nondelegation doctrine, long-considered a weak form of control on Congress, could find new life if the dissent in Gundy v. United States is any an indicator. The Chevron doctrine, a stable center piece of judicial review since 1984, was overruled after forty years of service despite the fact that it purportedly served a “stabilizing purpose” in law. Even before the Supreme Court formally overruled Chevron, the deference landscape was unsettled given the growing number of cases where the Supreme Court simply ignored the doctrine altogether.

In some ways, one might expect that these doctrines would be unstable. After all, without anchoring text, many of these doctrines trace back to separation of powers concerns, an area where “sharply divided decisions employ[s] a bewildering array of inconsistent methodologies.” In fact, “[t]here is general consensus among scholars that the Court has exhibited a ‘split personality’ in separation of powers cases.” Needless to say, if the foundation of many administrative law doctrines is separation of powers, it is no wonder that doctrines built from unstable roots have themselves been somewhat unsteady over time.

To be clear, the problem is not that doctrines can change over time. One expects law to change over time as it reacts to more nuanced questions, raising more sophisticated problems in emerging factual contexts. At the same time, instability of foundational doctrines capable of shaping substance can send destabilizing ripples to many corners of government regulation. For a poignant example, consider the frenetic speculation about the future stability of regulatory action caused by the Supreme Court’s decision to overrule the Chevron doctrine.

Another way to think about this is that administrative law’s flux gives it capacity to generate moving targets. Those moving targets undermine substantive law by sowing confusion and regulatory uncertainty through inconsistent methodologies.

For an overt example of administrative law’s capacity to create moving targets, consider Loper Bright. There, the Court overruled Chevron and told lower courts to “exercise their independent judgment in deciding whether an agency has acted within its statutory authority.” The Court did so despite claims that overruling Chevron would substantially disrupt the default balance of power against which Congress has been legislating for forty years. While the Court justified this blockbuster move in part by pointing to the “eternal fog of uncertainty” created when Chevron leaves agencies free to flip-flop positions, the Court may in the end have accomplished nothing but swapping one form of unpredictability for another. To that end, while the particular consequences of Loper Bright will unfold in the coming years, it is probably safe to say that the reversion to a Skidmore-like approach will give lower courts wide latitude in determining how much respect to afford agencies; and the unstructured nature of Skidmore respect will give rise to concerns about judicial review that is prone to manipulation and marked by inconsistency.

In the end, the Court is surely right to observe that “[a] rule of law that is so wholly ‘in the eye of the beholder’ invite[d] different results in like cases and is therefore ‘arbitrary in practice.’” But, if past is prologue, swapping Skidmore for Chevron is not likely to solve that problem. The real question after Loper Bright is whether the Court succeeded in creating more stability and predictability by putting courts in charge of making policy calls in the interstices of ambiguity as opposed to expert agencies. And one is left to wonder whether the simple act of shifting methodologies itself creates its own kind of uncertainty and potential for arbitrariness.

While Loper Bright provides an overt example of how administrative law can create moving targets, there are more subtle ways as well. Here, again, the WOTUS line of cases provides a nice example of how—in the context of the same question of statutory interpretation—philosophical shifts about the role of the courts in judicial review drove significantly different substantive outcomes over time. Consider that in the forty years between the Court’s decision in Riverside Bayview Homes and Sackett, the underlying governing framework—Chevron—did not change. And the clear statement rules introduced in SWANCC, and then more fervently invoked in Sackett, were not new. Rather, it was the Court’s use of them that shifted within the exact same legal context. That shifting methodology on administrative law issues—in the deference owed to agencies and the clarity required from Congress—changed the underlying substantive environmental policy by first sowing confusion in and then narrowing the reach of the Clean Water Act. In this way, the flux in the administrative law methodology was used to destabilize the underlying substantive law.

In West Virginia v. EPA, the Court introduced yet one more moving target—the major questions doctrine. In doing so, the Court switched up the drafting rules on Congress and created uncertainty for agencies looking to understand the bounds of their own power. For questions that the Court finds important enough, Congress will have to be extra clear about the bounds of agency power that Congress chooses to delegate. Even if that drafting rule makes sense, it only makes sense prospectively. What good—other than to put a thumb on the scale of a deregulatory agenda—is a newly minted drafting rule applied retroactively to a piece of legislation that has been ably and stably serving the Nation for over half a century? If administrative law is meant to provide stability and predictability to the rule of law, it is hard to see how a doctrine as vague as the major questions doctrine serves those values.

Three prior Supreme Court decisions had addressed and upheld EPA’s power to regulate greenhouse gases to address climate change under the Clean Air Act: Massachusetts v. EPA upheld the authority of EPA to regulate greenhouse gases under the Clean Air Act generally; American Electric Power Co. v. Connecticut concluded that Congress intended to preempt federal common law on greenhouse gas regulation through the Clean Air Act; and Utility Air Regulatory Group v. EPA (UARG) directly engaged the question of how EPA had chosen to regulate greenhouse gases from major stationary sources. None of those cases rested on new doctrine. None of those cases created a new moving target.

That the Court needed new doctrine in West Virginia is telling. That the Court chose not to take a route rooted in existing tools of statutory construction suggests one of two things. Either the Court was looking for a reason to announce a new doctrine that would allow it to assert control over how Congress ought to write laws, or the Court could not find clarity from Congress on the issue of statutory interpretation before it. Either way, the use of the major questions doctrine seems like a manufactured opportunity for the Court to claim power where existing doctrines would have told it to share. If one were to indulge a bit of hyperbole, one might say West Virginia is nothing more than a powerful Court assigning itself more power while introducing unclear, moving targets that undermine public health missions of settled legislation. Then again, hyperbole might not be necessary. One could reach a similar conclusion simply by reading Justice Kagan’s dissent.

Like in Rapanos, introducing uncertainty into the legal standards sows confusion and creates regulatory unrest. This unrest, which undermines the forward momentum in accomplishing the ultimate goals of substantive law, occurs in part because administrative law’s own animating values are up for grabs even if environmental law’s values are not. Ultimately, this feature of administrative law—instability—and the consequence—instability in environmental law—are relevant when weighing the risk of letting administrative law drive substantive outcomes.

3. The Flexibility of Administrative Law Doctrines in Application

One last feature of administrative law is important to understanding why courts should approach the use of administrative law when resolving environmental disputes with caution: many administrative law doctrines or standards are shapeshifters in practice. That is, not only do the doctrines change over time, but they can also be applied differently, and to different effect, in any given moment.

Consider that arbitrary and capricious review—the foundational standard applied to countless agency actions—is described as both “narrow” and as “searching and careful.” It can support a court taking a hard look, leaning in for a scrupulous examination of the agency decision. It can also support a court staying at arms-length and vowing not to “substitute the opinion of the court for that of the agency.” Indeed, arbitrary and capricious review comes in so many different flavors that at least one sitting member of the Supreme Court has commented that “on occasion, the courts’ arbitrary-and-capricious review itself appears arbitrary and capricious.” Standing, too, has this problem.

The same can be said for the Chevron doctrine, until recently a decades-long mainstay in administrative law. This doctrine, adopted at a time when there was notable backlash against courts for the manipulative nature of Skidmore deference, can itself be deployed in various modes depending on how much a court is willing to work to uncover congressional intent and which tools it uses to do so. Indeed, anytime statutory interpretation lies at the heart of a case, which it does often in administrative law, judges apply “a kind of situation sense in shifting from text to purpose.” The shapeshifting of Chevron was ironic, given that it was created in part because “[c]ourts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences.”

Again, the WOTUS line of cases is a useful example. Beyond the fact that inconsistent methodologies can have a destabilizing effect lies the more basic observation that, when doctrines are so malleable, the courts can shape substantive outcomes by adjusting the application of the doctrine. When intentional, the malleability becomes a pathway for judicial activism. When inadvertent, the malleability facilitates a reckless substitution of one set of values for another, increasing the risk that the effectiveness of underlying substantive law to fulfill the goals of Congress is stunted in application.

The Supreme Court’s decision in Michigan v. EPA is another good example of how the flexibility in the application of deference doctrines and standards of review can be used by courts to take a heavy hand in setting policy. There, the Supreme Court delivered an opinion on an issue of statutory interpretation that managed to combine the Chevron doctrine and the arbitrary and capricious standard of review in a way that avoided the most deferential parts of both those doctrines. The Court never did find that Congress’s intent was clear as to whether cost should be considered. Using the variable standards, however, the Court was able to center its own belief that cost should be considered.

As noted earlier, this observation about Chevron’s flexibility was one of the Supreme Court’s justifications for overruling it. To that end, in discussing the difficulty of determining when a statute is ambiguous and would require deference, the Court noted that “[o]ne judge might see ambiguity everywhere; another might never encounter it.” Because such a rule invites arbitrariness, “Such an impressionistic and malleable concept [of ambiguity] ‘cannot stand as an every-day test for allocating’ interpretive authority between courts and agencies.”

Of course, one could observe that the flexibility embodied in various administrative law doctrines is necessary or, at a minimum, unavoidable. Certainly, there is no formulaic approach to statutory interpretation that could absolve jurists from the need to resolve questions in ways befitting to the problem before them. At the same time, balance is paramount. Flexibility, when it swings too far, exists in tension with the rule of law values seeking to promote stability and predictability.

The need for balance between flexibility and structure, and the difficulty of finding the sweet spot, is apparent in the longer arcs of administrative law’s evolution. Skidmore deference, once the dominant framework, conferred deference on a sliding scale ultimately based on the agency interpretation’s “power to persuade.” As Merrill describes the world under Skidmore’s “hodgepodge of factors,” “there was no uniform understanding about how much weight or respect would be attached to an agency interpretation if one of the discrete factors was applicable.” Eventually, this lack of predictability gave way to mounting critiques about the “unwieldy and manipulative nature of the Court’s doctrine.” Chevron’s two-step approach was borne from this “hodgepodge” to provide some structure. After Loper Bright, which instructs lower courts to revert to a Skidmore-style review, there will undoubtedly be another surge of discussions and cases trying to find the right balance of flexibility and structure. Perhaps the courts will look to Kisor as an example, a case where the Court imposed structure to lend more legitimacy to the court’s role in review. A correction to a world where courts had more reflexively signed off on agency interpretations of their own regulations: Kisor looked to the structure of Chevron (ironically, now) to ramp up expectations for when lower courts should lean into more rigorous de novo review.

While it is nothing new to say that finding balance between flexibility and structure is paramount in administrative law, it is important to be clear-eyed about when the flexibility can operate to undermine substantive law. It is important to acknowledge that at the intersection of administrative and environmental law, the shapeshifting nature of administrative law has, at times, allowed courts to take a heavy hand in shaping policy. That is true even though “[m]ost judges—certainly the better ones—understand that they have no authority to manipulate the meaning of a statute to achieve some policy objective they regard as desirable.” Indeed, even if jurists are not trying to shape environmental policy but are simply reflecting their own sensibilities about how administrative law ought to operate, even a decision driven by administrative law is going to have consequences for the natural world. And so, it is worth taking stock of how administrative law doctrines can be used, whether intentionally or inadvertently, to shape outcomes.

* * *

This Part has provided a few choice examples of how administrative law has played a heavy hand in shaping environmental law. Building on the zoomed-in view of each of those cases, this Part has also zoomed out to suggest that certain features of administrative law make it a useful vehicle for courts to play a heavy hand if they so choose. Along the way, this Part has made some observations about the risks to both administrative law and environmental law when administrative law is allowed to function in ways that sidestep environmental law without demanding a full examination of its core purpose and text. In the end, these may be additional reasons to hesitate when administrative law is elevated over values of environmental law.