Justice Stevens critiques the Supreme Court

In 1984, then-Justice John Paul Stevens authored the Supreme Court's seminal decision in Chevron USA v. Natural Resources Defense Council, the source of the Chevron doctrine. This past week, speaking to the American Bar Association's Section on Litigation in Chicago, Stevens began his talk by criticizing the Supreme Court's recent decision in Michigan v. EPA, which some believe was insufficiently deferential to the EPA.

I must comment on a case involving a truly remarkable departure from the majority's love affair with dictionary definitions as the primary guide to determining the meaning of statutes. In Michigan against the Environmental Protection Agency, the key statutory language in the Clean Air Act instructed the EPA to regulate power plant emissions of noxious substances if it found that it was "necessary and appropriate" to do so. At the first step of the rulemaking process, the EPA determined that it was appropriate and necessary to regulate certain hazardous air pollutants based on the results of a study that examined harms to public health. After making that initial determination, EPA then promulgated a second regulation requiring the implementation of certain control technologies, and, in doing so, considered the cost of those technologies.

Ignoring dictionary definitions of the adjective "appropriate" (which do not mention the word "costs"), and the fact that the word "necessary" might well impose a duty to regulate even if costs were excessive, the Court held that the EPA's initial decision to regulate was defective because it had failed to include any reference to the costs of regulation. Instead of simply accepting the plain meaning of a Congressional command or deferring to the agency's reasonable interpretation of a statute that it administers—as Chevron requires—the Court invalidated regulations that took years to draft and which, according to findings made in the rulemaking process, would have prevented 11,000 premature deaths annually and achieved benefits that exceeded costs by as much as $80 billion each year. The decision rested squarely on the majority's conclusion that the agency had misinterpreted the words "necessary and appropriate". As a former English major in college, and as the author of the majority opinion in Chevron, I found that conclusion truly mind-boggling. Such a free-wheeling statutory decision can do even more harm—both to the public health and to the Court itself—than misinterpretations of the Constitution.

I provided my own take on the court's Michigan decision here.

There's much else in Stevens's remarks that should interest court watchers, including praise for Chief Justice John Roberts (citing King v. Burwell as "evidence his votes as a judge are determined entirely by his understanding of what the law requires rather than being influenced by his views of sound policy"), and comments on the court's recent decisions on capital punishment and redistricting in Arizona..

Stevens also remarked that King v. Burwell illustrates the error of the Supreme Court's decision in Printz v. United States holding the federal government cannot commandeer state officials to implement federal programs. Were it not for Printz, Stevens said, Congress would need not have had to worry about state refusal to create health insurance exchanges, as it could have commanded them to do so. Of course, it's not just Printz that got in the way. Other decisions, most notably New York v. United States, got in the way too.