The Chevron doctrine formed the bedrock of environmental regulation over the last forty years. Under Chevron, a court reviewing a challenged agency action first assessed whether, in the relevant statute, Congress “has directly spoken to the precise question at issue.” Chevron, U.S.A. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). If so, the court looked no further; it simply ensured that the agency has “give[n] effect to the unambiguously expressed intent of Congress.” Id. at 842–43. However, when Congress had not “directly addressed the precise question at issue,” the agency charged with implementing the statute was permitted to fill in the “gap” with a reasonable interpretation of the statutory text, consistent with its intent. Id. at 843. Where environmental regulatory frameworks are often quite complex,relying on the synthesis and integration of an ever-evolving body of scientific evidence, agencies are better positioned than Congress to make discrete policy decisions that balance often-competing interests. Chevron deference allowed agencies to utilize their subject-matter expertise to implement broad congressional mandates without the risk that a court might later substitute its own analysis and judgment, overruling the agency’s decision.
Recent Supreme Court jurisprudence signals a change in the winds. Over the past few years, the conservative justices of the high court have invoked the lesser-known “major questions” doctrine with increasing frequency as a reason to skirt Chevron deference—first in West Virginia v. EPA, and again a year later in Biden v. Nebraska. The “major questions” doctrine upends the approach under Chevron, in which courts presume that when an agency-administered statute is ambiguous or silent with respect to the implementation of what it prescribes, Congress has “empowered the agency to resolve the ambiguity” via implicit delegation. See Util. Air Regul. Grp. v. E.P.A., 573 U.S. 302, 315 (2014). Conversely, courts applying the major questions doctrine require the agency to point to “clear congressional authorization” for the authority it claims in implementing a statute. West Virginia v. E.P.A., 597 U.S. 697, 723 (2022).
The major questions doctrine emerged from a line of “extraordinary cases” in which the “history and the breadth” of the authority an agency asserted, along with the “economic and political significance” of that assertion, gave courts “reason to hesitate before concluding” that Congress meant to confer such authority. Id. at 721. The problem with this nebulous doctrine, however, is that in confronting unprecedented problems, agencies must make decisions—often based on authority reasonably implied by the statutory framework they are charged with administering—with wide-reaching social and political consequences. Continuing “business as usual” will not keep the rise in average global temperatures below 1.5 degrees Celsius. Responding to the climate crisis demands systemic changes that will necessarily have significant economic and political consequences. Yet the particulars of these decisions may not have been contemplated when the relevant statute was drafted, or articulable for every imaginable set of circumstances.
Further complicating the picture, the Supreme Court has now overruled Chevron altogether. Loper Bright, slip op. at 35. In Loper Bright, Chief Justice John Roberts, writing for the majority, noted that lower courts can continue to rely on a pre-Chevron precedent under which reviewing courts may consider, but need not defer to, an agency decision in reaching their own conclusion as to how a statute should be implemented. Id. at 16; Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Under Skidmore, “the weight of [an agency’s ruling, interpretation, or opinion] in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Id. In other words, Skidmore gives judges, not agencies, the final word in resolving statutory ambiguities, allowing the policy views of a reviewing court to displace agency interpretations and judgments.
For an industry already strained by financial pressures and a permitting framework that has frayed financial arrangements and investors’ interest, the loss of Chevron deference and inherent uncertainty of Skidmore analysis could sound a death knell. Increasing litigation could pose a considerable obstacle to the goal of 30 GW by 2030. In the two years since West Virginia v. E.P.A., the “major questions” doctrine has been cited by lower federal courts in 47 cases—almost as many times as the doctrine was cited by lower federal courts in the entire preceding decade. The fall of Chevron and rise of the “major questions” doctrine will likely invite more litigation concerning offshore wind approvals because plaintiffs stand a better chance of winning challenges to agency action. See Katie Buehler, Bid to Swap Chevron for an Old Standby Raises Doubts, Law360, Jan. 24, 2024.
Litigation against Vineyard Wind I illustrates the importance of Chevron deference in meeting offshore wind goals. Take, for example, the allegation that the National Marine Fisheries Service (NMFS) violated the Marine Mammal Protection Act (MMPA) and the Administrative Procedure Act (APA) by issuing an Incidental Harassment Authorization (IHA) to an offshore wind developer for pile-driving expected to alter the behavior of endangered North Atlantic right whales. See Melone v. Coit, No. 21-11171, slip op. (D. Mass. Aug. 4, 2023). Specifically, Melone challenged the way NMFS had interpreted several key phrases within the relevant MMPA provision, which allows the agency to authorize “incidental” take by harassment of “small numbers” of marine mammals within a “specific geographic area” where such take will have a “negligible impact” on the affected species or population stock. 16 U.S.C. § 1371(a)(5)(D)(i). Melone also disputed that the agency had complied with its mandate to ensure the “least practicable impact” on right whales. Id. Citing Chevron and its progeny, the District Court for the District of Massachusetts noted that it typically interprets such ambiguous language as “granting the agency leeway to enact rules that are reasonable in light of the text, nature, and purpose of the statute.” Melone v. Coit at 16. Through this lens, the court found that NMFS’s decisions were reasonable given their context within the statutory scheme as a whole and granted NMFS summary judgment. Although Melone tried to raise the “major questions” issue, the court rejected that argument because he had only challenged the particular IHA at issue, rather than NMFS’s overarching wind energy development policies. Id. at 17, n.12.
The Massachusetts District Court reasoned similarly in another recent case challenging Vineyard Wind I. A coalition of commercial fishers sued multiple federal agencies, alleging that approvals issued to the offshore-wind developers violated a slew of statutes including the Outer Continental Shelf Lands Act (OCSLA). See Seafreeze Shoreside, Inc. v. U.S. Dep’t of Interior, No. 22-11091, slip op. (D. Mass. Oct. 12, 2023). OCSLA authorizes the Secretary of the Interior to grant property rights on the Outer Continental Shelf for renewable energy production. 43 U.S.C. § 1337(p)(1)(c). The statute requires the Secretary to ensure that exercise of such authority is “carried out in a manner that provides for” 12 enumerated factors. Id. § 1337(p)(4). In Seafreeze, the court ultimately rejected the plaintiffs’ claim that “each enumerated criterion must be achieved to its absolute maximum,” finding agency discretion “functionally necessary . . .to determine what each criterion requires, both generally and as to a given proposal, and how to ensure each criterion is met, and not to the detriment of the other criteria.” Seafreeze at 22. The court held that BOEM had struck an appropriate balance among the factors and that the exercise of such discretion did not violate OCSLA or the APA. Id. As in Melone, the Seafreeze plaintiffs attempted to raise the “major questions” issue regarding BOEM’s offshore wind policy initiative, but their claim was barred by the statute of limitations. Id. at 20, n.30.
Challenges remain on the horizon for Vineyard Wind I. The Seafreeze plaintiffs have appealed to the First Circuit. As more wind farms receive federal approval, cases have popped up along the Eastern Seaboard challenging the adequacy of federal agencies’ environmental reviews and the lawfulness of authorizations agencies have issued. Litigation risk compounds the financial pressures and uncertainty of an already extensive permitting process. Christopher Niezrecki, Why U.S. Offshore Wind Power is Struggling – The Good, the Bad and the Opportunity, The Conversation, May 9, 2024. The offshore wind industry and its regulators do not face smooth seas ahead.
Offshore wind has become a controversial sector. Without Chevron deference, particularly as lower courts respond to the Supreme Court’s renewed interest in the “major questions” doctrine, federal agencies may not be able to permit 30 GW of offshore wind by 2030. As agencies grapple with balancing urgent decarbonization goals and habitat protection in a dynamic ocean environment, their decisions at the “frontiers of science” merit deference. Nantucket Residents AgainstTurbines v. BOEM, 675 F. Supp. 3d 28, 57 (D. Mass. 2023), aff’d, 100 F.4th 1 (1st Cir. 2024) (citing Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 103 (1983)). The decision to overrule Chevron and revert to Skidmore will likely lengthen the regulatory process, testing the endurance of developers and investors and prolonging an already robust data-gathering phase as agencies attempt to develop and document a “litigation-proof” administrative record capable of persuading the court.
