A series of U.S. Supreme Court decisions sharply limiting the power of the EPA and other federal agencies threatens Colorado’s progress on key health issues ranging from ozone to water quality to cuts in greenhouse gas emissions, according to environmental groups and state leaders stunned by the rulings. 

In a rapid succession of reversals of decades of executive branch power, Supreme Court majorities said lower courts don’t need to defer to agency officials’ judgment in writing details of laws passed by Congress, and said businesses or governments have much longer to sue to block regulations, even decades after they were written. 

And in another case, the court granted states a pause on the EPA’s “good neighbor” policy requiring cleanup of smokestacks sending pollution downwind to other states. The EPA has, for example, demanded that Utah cut emissions from coal-fired power plants and other sources that contribute to Colorado failing ozone limits in nine Front Range counties. The Supreme Court majority said the pause was fair because opponents of “good neighbor” restrictions were likely to prevail in lower federal courts. 

Colorado environmental groups and Gov. Jared Polis blanched at the reversals and said now Congress or environmentally minded states like Colorado must step in to the void to carry out the intentions of key laws like the Clean Air and Water Acts. 

“It’s really hard to overstate the potential impact of this decision,” said Erin Overturf, clean energy director for the Boulder-based nonprofit Western Resource Advocates, which works to slow climate change.

“It’s a foundational precedent in federal administrative law that they have chosen to overturn, and it really drastically changes federal agencies’ ability to respond to the issues that we need them to address,” Overturf said. “Issues related to clean air, clean water, safe food, healthy economies, safe airlines, all are going to be made significantly harder due to this very extreme Supreme Court decision.”

Industries resisting what they see as over-regulation by federal or state government, on the other hand, praised the overturn of the so-called Chevron deference. “Chevron” was the 1984 case, named for the oil company appealing a lawsuit that established judicial deference to an agency’s interpretation of law when writing new rules. 

Fossil fuel companies in particular say they’ve been harmed ever since Chevron lost that case. Until last week’s reversal, the Chevron deference to federal agency rules was one of the most frequently cited cases of administrative law, legal experts said. 

“We agree with the court that agency actions must faithfully implement the laws passed by Congress,” said a statement by the American Petroleum Institute that was distributed through the trade organization’s affiliates in Colorado and other states. The decision “is a reminder that it’s time for both parties to work together and advance bipartisan, common sense policies that provide regulatory certainty and secure an affordable, reliable energy future.” 

Conservative lawmakers in resource-rich Western states also backed the reversal of Chevron deference. In addition to the EPA’s oversight of air pollution rules, U.S. agencies like the Bureau of Land Management and Forest Service write extensive rules for extraction or conservation of natural resources on public lands. 

The Supreme Court decision confirmed “the Constitutional premise that Congress is tasked with making the laws of the land, interpreted by the courts, and not the executive branch by way of unelected bureaucrats,” said U.S. Rep. Dan Newhouse, a Washington Republican and chairman of the Congressional Western Caucus. “By ending deference, regulators are stripped of their ability to skew Congressional intent and must execute the laws as they are written, rather than enact their own agendas.”

To that end, conservatives also cheered Monday’s decision in Corner Post v. Board of Governors of the Federal Reserve System, which greatly extended the statute of limitations for companies to sue the federal government over regulations they oppose. The pro-business decision changed the limit from six years from the establishment of a new rule, to six years from the first time a rule affected the suing company. 

Those who want stronger federal regulation of industries now fear companies can sue to overturn rules established for decades. 

“What we have is a Supreme Court that is incredibly hostile, I would say, to climate action and air quality regulation,” Overturf said.

The five examples cited in Justice Elena Kagan’s dissent to the Chevron decision, Overturf noted, were heavy on the kind of environment and public lands policies affecting Colorado. Kagan said executive agencies like the EPA or the Interior Department need leeway to make specific rules for the Endangered Species Act, the Clean Air Act, and for aircraft noise at the Grand Canyon, among other issues. 

Blue states like Colorado have already begun to step in to preserve strict environmental policies as the increasingly conservative Supreme Court blocks agency actions under Democratic presidents, Colorado activists noted. When the court overturned federal rules protecting wetlands and ephemeral streams, Colorado’s legislature was quick to write similar protections at the state level. 

Colorado will be vigilant to protect recent policy decisions on the environment, Polis said Monday. Unlike the new federal reality, state law in Colorado says agencies have the presumptive right to author detailed rules carrying out legislative directives, Polis said.

But he suggested Congress, where the Boulder Democrat previously served, could also step up by writing protective federal laws far more specifically, with an eye toward a skeptical court. 

The ending of the Chevron deference doctrine “rightfully puts pressure on Congress to write laws better and more explicitly, as they should, and making sure that we have that predictability across Democratic and Republican administrations,” Polis said. “That they’re implementing the law as intended. So hopefully moving forward, Congress will provide more explicit construction instructions regarding how to successfully implement federal laws.”

Asked if that extra bipartisan effort seemed likely when he served in Congress, Polis smiled. 

“I think now Congress will have more primacy in the matter to articulate exactly what they want to happen in the law itself,” Polis said. “Depending on what rules are invalidated, it increases the importance of Congress.” 

States like Colorado filling in new regulatory gaps would not go all the way toward restoring environmental or climate protections for issues that need national solutions, Overturf warned. Greenhouse gases, for example, need to be cut in all states if the U.S. is going to contribute to global warming solutions, she said. The EPA sets specific standards for health-harming pollutants like ozone, which Colorado remains in violation of, and some ozone-causing emissions that drift here from states like Utah. 

“If you care about climate action, if you care about healthy rivers, if you care about protecting wildlife or clean air, then there has never been a more important time to engage at the state level to secure those policies that we need to protect our livelihoods, our health and our economies,” Overturf said. “State level advocacy just became even more important than it already was.”