On June 28, 2024, the U.S. Supreme Court overruled Chevron v. Natural Resources Defense Council, concluding that courts have a constitutional and statutory obligation to exercise their “independent judgment” when deciding whether a federal administrative agency has acted within its statutory authority. As Justice Neil Gorsuch noted in concurrence, the Court’s decision “places a tombstone on Chevron no one can miss.” This Comment discusses the Court’s decision and its implications for legal challenges to federal agency actions. 

The Joseph Biden Administration has signaled an interest in ensuring that regulations appropriately benefit vulnerable and disadvantaged communities. Prior presidential administrations have focused on ensuring that regulations are efficient, maximizing the net benefits to society, without considering who benefits or who loses from these policies. Supporters of the current process are concerned that pursuing equity will come at significant cost to efficiency and ultimately leave everyone worse off. This framework—efficiency versus equity—is misguided and counterproductive in many cases.

This Comment touches on some of the key concerns that Dave Owen's The Negotiable Implementation of Environmental Law raised about equity and transparency in environmental law, and shares a couple of examples that have emerged in the last few months that people are inventing to try to address this.

Black letter law is implemented in countless shades of gray, with interpretation and negotiation at virtually every step of the way. Prof. Dave Owen’s The Negotiable Implementation of Environmental Law digs deep, beyond the obvious, to underscore that negotiation is not a dark art but a necessary skill that deserves more attention and training.

Dave Owen's The Negotiable Implementation of Environmental Law did a nice job of highlighting some of the major statutes that are the backbone of our practice and the launching point for effective negotiation. One of the implications of the article that highlights the axiom “wake up . . . people are negotiating” is to understand that promulgation of the law by regulations is not the end point.