On the surface it looks like a classic conservative move, ostensibly putting bureaucracy in its place and giving business the ability to challenge government when it gets in the way. But critics of the Supreme Court’s decision last Friday to quash the so-called Chevron Deference say the move will create a logjam that will bog down needed regulations in a society where AI-fueled tech is changing the way we live at breakneck speed.
The Court voted 6-3 along Conservative/Liberal lines to end the practice, which required judges to enforce federal agency interpretations of U.S. laws that are considered ambiguous. Critics said the doctrine gave the bureaucracy too much power in crafting regulations while proponents said it ensured laws were vetted by experts in the fields they affected. The Court essentially said the bureaucracy has no business creating or interpreting policy and put those burdens on Congress and the courts respectively.
But those stuck in the middle of the governmental turf war say the inevitable result is a logjam of challenges to laws enacted by elected officials incapable or disinterested in writing good laws. Hence the ambiguity thing. In order to make sure the laws stand up to the scrutiny of the many detractors that always surface when new laws are enacted, they would have to be carefully crafted to ensure they are not ambiguous. Frankly, the track record on that is not good, largely because of the Chevron deference.
Until Friday, Congress (more accurately the army of aides and assistants who do the actual work) could come up with a vague notion of what they wanted to accomplish and leave finessing it to workability up to the experts in the bureaucracy affected. When the bureaucracy was done, challenges to their work were limited by the Chevron deference which directed judges to defer to their expertise on the often-arcane subject matter.
From now on, anyone will be free to mount a legal challenge to the new law and it will be up to the courts, particularly judges, to decide whether the laws are clear and enforceable. The clogs will be immediate and will grow immense to the point where any law that affects the nuts and bolts operation of government can be challenged by anyone who thinks he or she is agrieved by it.
The broad perception is that big business is licking its legal chops at the opportunity to stop any law that could cost it money simply by dropping a writ or two. Considering the hue and cry that goes up from the aviation industry when new laws bring that threat, it’s inevitable that the legal quagmire will suck at the FAA’s boots.
According to a lawyer we consulted, only new laws will be affected so the ones we’ve learned to live with aren’t going anywhere. But I’d argue that no other area of society is undergoing as much fundamental change as aviation and the process to regulate that change is already almost unworkable. Turning the basic function of government over to the courts will constipate it utterly, right?
Maybe not. Maybe what will happen is that Congress will occasionally pause partisan politics to craft legislation that works and is enforceable, eliminating the basis for challenges in the first place. And maybe the justice system will meet the coming challenges head on and ensure that anything that reaches a judge has merits beyond saving industry a few bucks. And maybe my hair will turn brown again.
If I was in the drone industry or automation or aviation-related AI or eVTOL business, I would be especially mindful about how this ruling might affect my business’s already torturous journey through the regulatory process. There are a lot of big guns out there that don’t want you or want to control you and the Supreme Court just gave them bump stocks.
The repercussions of this ruling are potentially horrific. The only people I see that are happy about it are large business leaders and those who don’t understand it but know the conservative justicea voted for it and the liberal justices against it so “It must be good since we owned the libs again”. The reality however is those with a better understanding of it (and you did a great job laying it out the reasons here Russ) are almost universally opposed to this ruling. Americans need to put down the my team vs your team mentality and understand the actual damage to our nation that is being done here.
Well put, Alyssa. There is no way the legislators in Congress can create, much less pass, laws that will deal precisely and fully with future circumstances that haven’t even been conceived of yet. Furthermore, with their relative lack of expertise in scientific and other fields (except lawyering) they can’t even accomplish that to deal with problems we face every day, like NexGen implementation, aircraft manufacturing oversight, agricultural chemicals, drugs, auto safety, and thousands of others. Regulatory agencies are where all the expertise in a given area is found, not in Congress and most certainly not with federal or state judges. We need those regulatory agencies to make sense of the intent of Congress. They’re certainly not always perfect, but Congress can always pass new legislation to deal with those imperfections if it’s required. The Administrative State is critical to our functioning in the 21st century, and is what holds us together and advances our society. We don’t live in the 18th century anymore, and cannot pretend to govern as if we did without entering a very deep rabbit hole of dysfunction.
Well said WBJohn,
“ There is no way the legislators in Congress can create, much less pass, laws that will deal precisely and fully with future circumstances that haven’t even been conceived of yet.”
What will be the next idea, business, social dialogue, or initiative aimed at improving the common man’s situation? This concept must be suppressed at its inception, ensuring that individuals remain wholly dependent on the state and recognize that all good things must originate from it.
“Regulatory agencies are where all the expertise in a given area is found” This is a ludicrous argument! In what industry or field do the best and brightest go to work for the government? The Chevron deference has led to ballooning of the bureaucracy and leadership by the mediocre. The government almost never has the best people, the best ideas, or the best talent.
More experts there than in Congress.
Having worked in several agencies at the top end of GS-land for many moons, the truth is that it’s actually scary how little in-house expertise there is. People watch movies or TV dramas and assume there’s someone in 202 that knows what they’re doing.
Well, maybe not. Basically we use contractors from industry to “advise” us with whitepapers/ alternative analysis. but every manager i know, is just working on their High Threes and will retire in 30 months, and apart from a degree 20 years ago, would not qualify for a job in their industry.
DO NOT take my word for it. Every civilian federal employee position (except DHS, LEOs, intelligence, DoD etc.) is public info and has been FOIA’d and can be easily searched. For EPA, FAA, FDA, HHS, etc. you can look see the agency org chart, and get the relevant job positions, for that reg area, then simply google the employees in that org code. Their dot gov profile, linked in profile etc. will list their accomplishments, academics, published works, experience. I don’t know EPA but I know they are missing 2000 employees, but have fun looking at FDA CDER, CBER, CFSAN for example to see who is running the show and if you would defer to their judgement.
Again, these are the real people you can look up.
Let me know what you see. I’d be happy to swap notes.
I was (obviously) referring to how legislation is created, not how products are developed. Contrast the expertise of the regulatory agencies with that of congress (mostly lawyers) and the courts (mostly lawyers) and you tell me, which has more expertise in any given technical field?
Congress has access to all of the experts they need on any subject. Congressmen rarely are the ones actually doing the writing anyway, it’s staffers and subject matter experts. In court, the issues are presented by experts from both sides. This decision allows judges to once again use judgement to determine what’s correct, rather than being compelled to take the government’s side.
Agreed Alyssa,
“In order to make sure the laws stand up to the scrutiny of the many detractors that always surface when new laws are enacted, they would have to be carefully crafted to ensure they are not ambiguous.”
Law and regulations need to be made as ambiguous as possible to capture as many as possible, least the serfs start to believe that they have some sort of standing over Our Government.
Prisons must remained filled, fines must be imposed to curtain any notion that the common folk lift his head and stand upon his two feet.
BRAVO, ALYSSA!
Congress is behaving like a third-rate football team and the only thing that matters to them is beating the other side no matter how bad the effect on the fans (citizens).
Just a bunch of spoiled brats.
Bravo, Alyssa!
and as o the argument that the regulatory agency being a detriment – the job of (proper) government is to care for the benefit of all. No, they are not the best by far, but they act as a balance against someone spreading poison just because they can make a buck. For example, when you go to a doctor s/he cannot sell your medical data to the insurance company without your consent. Assuming unscrupulous players exist, you are the only one that benefit. same when an attorney or a financial advisor owes you fiduciary duty.
Government has a role that needs to fluctuate gently carefully between over and under regulation, to benefit all citizens. Allowing the ultimate arbitrator of that balance to go south, as in the present unbalanced, completely unregulated supreme court, causes the problems Niles raised. The losers – the citizens.
Did you read this decision or Chevron? If so, please point out the flaws in the legal majority Opinion that was issued
As usual I find it easy to disagree with Russ. This is no different. We are a nation of laws but the system ran amuck long ago. Citizens have been overburdened with laws and regulations set by bureaucrats for far too long and it’s a welcome sight at least for me. We elect our leaders not the special interest groups who sit in the back rooms ginning up whatever for the politicians to rubber stamp. If a law is needed, according to our constitution the elected lawmakers are to do it. Not the hired hands. As for clogging the courts, the cause of that is the millions of laws and regulations on the books that only a specialized attorney can sort through. They make a very good living doing it.
I agree with you JJ. The US constitution did not intend on the government having policy making authority to regulate and tax individuals without congress passing such laws. This was a victory for individual citizens like the fishermen that brought the case, and is one step forward to balance the field against overreaching government.
Well, it’s laughable that Russ wants to back government appointed “experts” to rule over us with force of law. One only has to remember the undeniable disaster that resulted by political edicts during the COVID response.
Russ, enough with the politics of fear. It’s “the party” that don’t want you or want to control you; not the one off person who actually own a buggy trigger gadget living somewhere on a ridge in Idaho.
Agree with you. Regardless of the downstream effects we either have the Constitution or we don’t.
Totally agree. Content like this should be accompanied with a counter argument piece from someone on the other side and should be labeled as political opinion. AvWeb should be more about news reporting than obvious biased agenda driven political commentary.
I miss when AvWeb cared about the little guy and called out government abuse for what it was: https://www.avweb.com/aviation-news/a-dangerous-new-precedent-in-faa-enforcement-law/
As with all of this “owning the libs” and “fighting the Right” and “environment is going to hell (literally, if you believe in hell)”…. The big dog in the room is corporate greed. Witness the mess Boeing has made of itself. Because of the wide open barn doors of unlimited corporate money in politics, don’t hold your breath hoping that Corporate altruism will suddenly spring up and save anyone on any planet – not even this one. Corporations focus on just one thing. Maximizing shareholder wealth. That mantra has been the bedrock of business since forever. So no matter what us lowly shrimp on the bottom of the food chain think or want, big money will dictate our futures. If corporations can see a way to make a profit they will. And they look at that landscape one earnings quarter at a time. Don’t look for that shortsightedness to change no matter what we shrimp think or do. Money – greed – will drive every decision about what laws to enact from here on out.
Well put, HazMatt.
HazMatt, I agree with most of what you said except for the corporate focus: MOST US corporations, and clearly the prevailing wind in business schools, is maximizing SHORT TERM shareholder wealth. The wealth is created by great ideas and reasonable business acumen, and then it falls to ideologists of the ‘shareholder wealth’. most of those kill the company after a short time of ‘maximizing profits’, i.e. cannibalizing the assets that were made the company great in the first place. And in my mind, other than in industries like mining a known asset (e.g. oil) the biggest asset of a company goes home every day – the workers and their accumulated knowledge. So you start by throwing out the bottom ten percent every year, and continue to the mid ten percent and on to the high ten percent and soon enough the only ones left are the ideologists that only know how to maximize short term shareholder wealth, that make tons of money for themselves and make another GE or a McDonnell Douglass or Boeing.
Until proper balance will be struck between maximizing shareholder wealth AND employee satisfaction AND reasonable fairness in the marketplace (anyone remembers that anti-monopoly is a government function?), such companies are vultures eating themselves. Such company cannot make a good product for long.
If fully printed out, the Federal Register would occupy over 80 feet of shelf space. Because laws and “rules” are constantly being made and almost never taken off the books – and each one either prohibits an action, forces an action or sets limits, the inescapable conclusion is that in the United States, freedom becomes less and less every day.
The “cabinet” agencies all unconstitutionally violate Separation of Powers, take for example IRS: they make the “rules” (legislative), operate courts based on those rules (judicial), and enforce the same rules (executive). FAA does the very same (violate some airspace or run afoul of ATC, and you’ll find out). The Constitution says that Congress shall make the laws, a side effect of which is that it limits production of same to a slow pace, but with the invention of the three-letter agencies, they figured out a way around it.
The United States’ period of greatest innovation was when its gub’ment’s oversight of its people was minimal. People can solve their own problems; they don’t need their nanny – or their daddy – looking over their shoulders 24/7. Any ruling – SCOTUS or otherwise – that helps to bring that about is Just All Right With Me.
You’re all correct – this is going to create a mess near-term, but it was the right decision. Our congressional branch has been lazy for decades now (shocker, I know) by enacting legislation that outlines broad brushstrokes with insufficient detail. So our federal bureaucracies have jumped in to very happily fill in the rest with their own interpretations. This has created the “need” for more (unelected) bureaucrats and a new “fourth branch” of the government which our founders never intended and which is often not particularly accountable to congress, which is supposed to be overseeing them on behalf of We the People. Near term, this might hurt a bit, but if bureaucracy can be reduced and/or made more accountable over time I personally am all for it.
there needed to be a way to more easily challenge the government regulators as many times the consequences of a given regulation go too far, however letting people who have no knowledge of the details doing the judgement is just as bad. we need to find a middle ground.
this is exemplified in the maintenance of older aircraft. it is very difficult to get a modern improvement approved because the process is too long and expensive. so many times the choice is legal or safe or scrap the aircraft.
a solution in the aircraft space is allow aging aircraft to be put in an “experimental” category as is done in Sweden and Canada so good proven (but expensive to get approved ) solutions can be implemented.
An example is the Seabee one of the best single engine amphibians built but it really needs a new engine. a conversion of an automotive engine works extremely well especially in this application. the Hp is only used for takeoff and the rest of the time the engine operates at 50% power where automotive engines are happy. go look at”V8seabee.com”
I agree. The issue is one of balance.
If it is the choice is between being forced to follow a group of government paid doctors making the regulations as to how I am treated, or a pharma company attorney that filed a law suite in front of a judge that would not recognize bi-hydrogen oxide when it is laid in front of him – I will take the government doctor. But just as long as there is sufficient balance that will stop someone else who does not recognize said bi-hydrogen thingy before he forces me to drink some bleach.
Is this the New York Times editorial section of Avweb because the bias here sure checks off many left wing talking points.
Leave everything than governs our lives to unelected, all knowing “experts” -check
Scary “big business” needs to be held under the thumb of those unelected, all knowing “experts” in government-check
Once the decision made by the “experts” comes down from the mountain it is to enforced like commandments chiseled in stone, there shall be no dissent or challenges-check
And the rather convoluted summary using a gun analogy to make this restoration of rights of the people to be governed and regulated by accountable, ELECTED officials was lost on me.
You seem like a nice guy Russ but this is an aviation site and you are way off the centerline and glideslope here. Here’s a friendly recommended read, a book called “The Road to Serfdom” by F. A. Hayek. This correct ruling has started to reined in the massive, unelected administrative state and slowed down the travel on that road.
Well said, Tom. I believe the cost of participation in aviation has led to a disproportionate representation of champagne socialists masquerading as Democrats. The working class has almost no access to this world, so we see much of this echo chamber “save me, Mr. Bureaucrat” citing clean water, gun crime, and aviation safety as key places where unelected experts should lord over us. I remember the water in Flint. I remember bridges falling down all over the country. I remember aviation startup after startup folding because the bureaucracy and regulatory burden put promising development efforts out of business. I could go on, but I need to get back to work.
I wish I had enough privilege to be part of this “elite” club, but I lost my ability to fly when I had to choose feeding my family over flying. Hopefully, I will be able to afford to fly again sometime early next year.
Absolutely, Tom.
Another thing to consider for those who would entrust unelected bureaucrats: The EPA endangerment finding never would have happened were it not for the fact that the EPA air division has been co-opted by a group of progressive “scientists” who would do anything–including manipulating testing to generate false data–to reach the result that they invited with the friendly Friends of the Earth lawsuit seeking to ban leaded avgas. We would not be in this pickle about banning 100ll were it not for the gradual takeover of federal administrative agencies by public employees who have the most powerful and personal of motives to expand their regulatory empire and to support other who trust and want big government.
In the early years of the Clean Air Act and the Clean Water Act, the EPA did great things. Since that time, it has been searching for “threats” so they can keep their jobs and their pensions. The claim that this latest ruling will return us to the 1800s is just absurd and ignores the metastacization of the administrative state in the late 20th Century.
I have some expertise in this area. By all means read von Hayek – but skip the version of Road to Serfdom that appeared in Readers Digest. Even though he was an Austrian who wanted to return Austria to aristocracy, he saw a role for an active government. All that changed when the National Association of manufacturers started paying his bills. Read his original works, before he became a spokesperson for American big business.
As for the impact of this specific SCOTUS ruling, in order for it to work it will require a form of Congress that we don’t have….and have never had. They have never had the time or expertise to craft detailed, prescriptive legislation. Today, they are too busy raising money. This is ruling for a fantasy world – one I wished existed, but doesn’t.
>>> Once the decision made by the “experts” comes down from the mountain it is to enforced like commandments chiseled in stone, there shall be no dissent or challenges-check
MMMM, NO!
Chevron deference means a DEFERENCE, not an absolute power. Otherwise the case would have not been brought in the first place..
It means that there is an assumption that the expert know better than the uneducated in the subject, but it does not mean that you cannot bring FACTS and have the decision overturned.
This is a question of balance. And unfortunately, to many lost ALL trust in government, which is just as bad as believing in 100% autocracy.
The foundations of this country was based on protecting individuals (and companies) from the arbitrary whims and edicts of a king. Of course bureaucracy has no business creating or interpreting political policy as law. The EPA was never created to prohibit ceiling fans or gas stoves and of course people should be free to challenge political policies that are trying to be enforced as law.
I’m not a lawyer. The terms law and regulation mean different things and confuse the issue when used interchangeably. They aren’t. To my understanding laws are crafted by the legislature, enacted by executive signature, and adjudicated by the court. Regulations on the other hand are crafted, enacted and adjudicated by a single agency of the executive branch. The regulations in themselves do not have the force of law. It gets complicated when the legislature blurs the lines by abdicating its authority to the executive agencies, blurring the line between law and regulation.
This Supreme Court decision, again to my understanding, applies specifically to regulations and limiting the authority of the agencies administering them. In essence I read it to say that the executive, through his agencies, does not have the authority to craft, enact and adjudicate regulations with the force of law single handedly through the executive branch of government, and that the courts will adjudicate disputes with the agencies without deference to the agencies.
Someone much smarter than me please better explain the regulation/law dichotomy and we can all learn something more.
I wish you were a lawyer, and further, I wish you were involved in this fight legally.
I admit to being very old and nostalgic for the era before the unelected parasites in the federal government decided that they had the right to micro-manage our lives.
Have the EPA and the FAA had some successes? Sure, they have. Have they done much harm in their ham-handed and unscientific approaches to many of the issues into which they have chosen to insert themselves? Again, yes. Has their reliance on the protection (for the bureaucratic parasites in the federal agencies) of the Chevron doctrine made it nearly impossible for the citizenry to challenge an unjust, unscientific, or simply stupid regulation? again, yes.
Case in point: Tetraethyl lead is dangerous, because the lead moiety in the compound is in a valence state referred to as “Lead II” (lead 2) which is bio-available. Don’t breath it. However, once tetraethyl lead has been through an internal combustion engine and is completely oxidized, it is no longer in the bio-available state, but rather is Lead III, which is not bio available. However, in the unscientific scare-mongering practiced by the EPA, the presence of lead oxide anywhere in the environment (completely ignoring the valence state) is the justification for the elimination of lead from gasoline. The presence of lead along highways, for example) is measured by analytical methods that do not account for valence state, such as ICP, AAS, or XRF.
In the case of mogas, the function of tetraethyl lead was replaced by the addition of some really nasty polynuclear aromatic compounds (most of which are carcinogenic), which is why you should probably wear vinyl gloves when changing your oil, and oh yeah, don’t breath mogas fumes.
Russ is a Canadian, and Canadians were, at least until the Trudeauschina, a better, kinder, more practical bunch than the leftist ideologues who infest Washington, DC, so I do not find his residual faith in government to be surprising.
However, the American people have been given an incredible victory, taking a big step back from the tyranny of the administrative state.
Willhill, in saving a copy of your post, I decided to title it “Lead in Exhaust Gases.” As an armchair chemist/scientist I found your post very enlightening, re the scare-mongering around that small airport north of Denver, as heard on local TV news, where lead has been found to not be a problem but the residents don’t believe that. (I’m in Wyoming, but cable TV has made Denver channels my “local broadcast TV” region.)
WilliamHill, sorry, but your comments on the effects of lead valence states are toxicologically incorrect as are your comments about the toxicity of lead in internal combustion engine exhaust.
Motor fuel blended with TEL is also blended with 1,2-dichloroethane, and the combustion product is lead (ll) chloride. Lead chloride, although not as toxic as TEL, is still poisonous to humans. Lead oxide, BTW, is also toxic to humans, but not as toxic as TEL, itself.
Further, polycyclic aromatic hydrocarbons are not added to gasoline, they are produced by the combustion of gasoline. Further, being large molecules, they are not especially volatile and would not be in the “fumes” of gasoline (you actually mean vapor and yes, there is a difference). The reason why there are PAHs in your used motor oil is the result of burning gas in the engine.
Average blood lead levels dropped between ten and twenty fold after the removal of TEL from motor vehicle fuel in the US. It was a public health victory. There is, presumably, some reason why TEL has been banned from use in road vehicles in every nation in the world.
Please take the time to learn some toxicology before making incorrect statements to support your political views. And, yes, I am a licensed, practicing, medical doctor and I specialize in the effects of chemicals, including lead, on health.
Thank you, FredGerr. A little science, and some sanity, on this website are refreshing.
Don’t know where you got your TEL combustion chemistry, but my sources tell me when Tetra Ethel Lead goes through an internal combustion engine, it breaks down to elemental lead and lead oxide (Lead II), plus CO2 and water.
Pb(C2H5)4 + 13 O2 → 8 CO2 + 10 H2O + Pb
2 Pb(C2H5)4 + 27 O2 → 16 CO2 + 20 H2O + 2 PbO
Both are very toxic to humans.
Rick and William ‘win’ the discussion IMHO. William’s last sentence says it all. And William’s lead analogy is SUPERB. THAT discussion needs to be a part of the PAFI / EAGLE talks.
As is usually the case, the pendulum swings back and forth. With this challenge and interpretation by the SCOTUS, the overarching power of UNELECTED bureaucracies to use “Regulations” to control the society ‘absolutely’ with the effect of “Laws” without fear of retribution is now severely curtailed. IF, for example, the Congress doesn’t want people to drive internal combustion cars, pass a law and suffer the consequences of your constituents in the next election. The Congress of the US has arrived in a place where IT doesn’t have to do this because they defer to the unelected bureaucrats who act as their henchmen. “Life, Liberty and the Pursuit of Happiness” was the foundation of this Country. As the population rises to the point where some modicum of control is necessary for the ordinary conduct of life or business, then a plainly stated law must be enacted … NOT a Regulation by an unelected bureaucrat who may well have specific knowledge of the issue at hand … or not. SOMETIMES, they have parochial viewpoints AND the power to enforce same.
Absolute power corrupts absolutely. Washington DC is filled with parasitic ‘swamp rats’ for that reason. This change challenges the ability of the bureaucrats to overcontrol us and I — for one — applaud it. Liberty means LIBERTY and not CONTROL. Want to control me, write a law, DO your job. Stop flapping your jaws and DO SOMETHING, Congress.
The BEST example I could give on the subject of aviation is the preamble words in an Advisory Circular. It plainly SAYS that it does not have the power of law BUT … just bust one and see what the FAA does. That is BULLPOOP. IF it isn’t law then it isn’t law and it’s merely a recommendation to standardize things and little more.
OH … and my pet peeve. Aging airplanes ought to be able to be licensed as experimental to allow condition inspection by a certificated A&P and not treated like a B747.
I’m not smarter than you, but regulations published by federal agencies are law just as much as the actual statutes passed by Congress and signed by the President. Regulations must be authorized by the statute and represent a reasonable interpretation of that statute. They can be and are often challenged in court, which until last week would defer to the regulatory agency if they were a reasonable interpretation.
This. yep, most laws authorize agencies such as FAA, EPA, IRS etc. to promulgate regulations that have the force of law as long as they follows processes Administrative Procedures Act (NPRMs, public comments, etc.)
In the original Chevon case, the government admitted they had changed the meaning of the Clean Air Act term “stationary sources” whenever they felt necessary over the many years since the law was written, from administration to administration, without any legislative guidance, in order to create new enforcement authority out of thin air, without any reference to Congress’ original authority.
The Stevens-authored decision in Chevron literally said it was an error of lower courts to rely on a prior “static definition” (i.e. it’s wrong to believe words have actual meaning), and that courts must now completely defer to ANY “permissible” interpretation of a term of the current Administration. The problem was “permissible” is defined as basically anything that was not specifically prohibited in the words of the statute.
Like a lot of Stevens-authored opinions, this was always junk precedent. The current decision is not particularly earth shattering nor some pitchfork and torches attack on government regulation.
for those who think this is barbarians at the gates of civilization, like Russ, I invite them to spend the 20 min. to actually read both decisions and point out the legal errors.
It’s disappointing to see this hyperbolic foray into politics in an aviation publication. We have a bloated, unaccountable, unelected “fourth branch” of government with unlimited resources that’s been out of control for decades. Those of you who wish to have every choice in life made for you can move to any other country on the globe (including Canada) to see just how great it is to have all aspects of your affairs micromanaged.
Precisely, John. Wanna see what unelected “fourth branch” bureaucrats cause … this poor guy in DC had to build a 6′ wide house (sic):
msn.com/en-us/money/realestate/developer-forced-to-build-a-6-foot-wide-home-after-washington-d-c-zoning-officials-changed-the-rules/ss-BB1p9L9M?
It’s the same reason new modern aircraft engines like the ones we drive behind aren’t being developed and certificated.
Hey John. Maybe you and the others like you should move to another part of the globe.
Or maybe you could leave that kind of commentary out of it and stick to the subject.
Congress can add the following to any forthcoming statute and that will address the issue:
“In the carrying out of this statute through promulgated regulation, Congress defers to the expertise of the relevant agency.”
THAT deferring to political appointees is a huge source of corruption.
Human nature also applies to “experts” and unaccountable “experts” who can make up their own unassailable rules are a threat to basic human rights encapsulated in the Bill of Rights.
Aw, come on, guys. Russ is just pulling our legs to stir up a little action. I hope.
Even though a remnant of the distant past, I still remember being told in ground school that 14 CFR contain regulations with the effect of law. The many complaints and cases I’ve read that have gone to the FAA and NTSB (but not a court of law) for some level of adjudication makes me think what I was told is effectively true.
All of you who have commented so far in support of this SCOTUS decision don’t remember the bad old days before the EPA and for example the Clean Water Act. The Cuyahoga River in Cleveland Ohio was so polluted it caught fire in the early 1970s, the surface of the river was on fire! The Clean Water Act, implemented by regulations (!) corrected and ended that pollution, caused by refineries along the river. Lake Erie was so polluted you would not dare to eat a fish if you could find a live one in the lake. Lake Erie also was cleaned up, now it has healthy fish you can safely eat. With this decision, the refineries for example would be able to litigate and essentially make it impossible to enforce needed regulations. Be careful what you wish for!
The point is, the Clean Water Act was legislated into existence, it wasn’t created by a federal agency via “expansion” of, say, some existing regulation related to municipal tap water standards.
I do, I live there now, my father fished a lot in Lake Erie during his retirement after the lake was cleaned up. JOHN K. says it perfectly, that was legislation that was enacted, not some unelected bureaucrat making his/her own rules!
Russ lost me when he wrote a piece during Covid that said I should feel guilty flying my plane because no one else was having fun during Covid. I can assure you the FBOs that I frequented were begging for my business and hopefully we kept a few people employed.
An interesting back and forth. Good arguments on both sides. While reading comments about legislators, regulators and business interests I was reminded of what a wit once said.
“I can tell you one thing about politicians… the corrupt ones are bad enough, but the sincere ones are much worse.’
One can only hope that agendas are tempered by sweet reason.
Russ,
I thought you were a Canadian citizen. I’m confused by your statement about US Laws “so the ones we’ve learned to live with aren’t going anywhere”.
“But I’d argue that no other area of society is undergoing as much fundamental change as aviation and the process to regulate that change is already almost unworkable.”
I’m hoping the idea behind this Chevron decision will improve the situation Russ is arguing in the sentence above, by changing the default regulatory thought processes at these agencies from “it’s illegal unless we prove no harm” to “it’s legal unless we prove harm”. It was the “experts” that brought us LSA regulations that prohibited electric motors and feathering props on LSA motorgliders and a number of other senseless limitations that took years to iron out. Regulating that “fundamental change” Russ mentions would be more workable with a light hand at the regulatory agencies, not a heavy one.
Man, has avweb gone down the toilet.
Some of you might remember the avweb content from 25 years ago. Lots of very experienced aviators writing interesting and useful articles about FLYING AIRPLANES.
Now it is nothing like that, just tedious news regarding Boeing, rocket launches and unleaded fuel. Topped off with left wing editorializing.
With the new ownership and Paul’s departure this site has lost way.
This. First of all, it’s clear that none of the responders, nor Russ has read either this SCOTUS decision or the Chevron one it discarded. He is making a bunch of strawman arguments and claiming an impact that won’t happen.
There is no one at Avweb anymore. They are just subscribing to an AI news aggregator that triggers an alert on aviation, which is mostly repackaging press releases, and then they copy/paste text word for word and put an Avweb “contributor” name on it.
There is no one reading these things and about 70% of the time it’s riddled with factual errors that we used to have someone who knew something about aviation review and correct. So we see endless re-hashed “news” of “sustainable” aviation or eVTOL “milestones” which upon closer looks are 100% fake news.
Russ, you are to be commended for bringing to the aviation community’s attention the effects of overruling the practice of the past 40 years of courts deferring to federal agencies on interpretation of federal laws, where those interpretations are reasonable.
Justice Gorsuch’s ruling for the Supreme Court last week confusing nitric oxide (smog) with nitrous oxide (laughing gas) is a perfect example of why we want people with expertise implementing laws rather than life-time appointed judges.
I do take issue with Russ’s characterization that elected officials are incapable or disinterested in writing good laws. As someone who spent nearly a decade writing laws in Congress, I can say that generally it is very unwise to write overly prescriptive laws. Congress simply doesn’t have the expertise to do that. And if Congress did so, then our laws would look like the voluminous Code of Federal Regulations. Regulations are far easier to modify when needed than Congress and the President amending laws. If you think the LSA and MOSAIC regs are problematic, imagine if Congress had been required to spell out the requirements of each.
Can someone cite in the laws passed by Congress the specific authority of the FAA to grant STC’s for unleaded aviation fuel? Six Supreme Court Justices could very well decide whether the FAA had the authority to issue the GAMI STC.
The notion to HAVE to write totally prescriptive laws is precisely what’ll keep the total number of laws to a minimum. All the DC swamp creature lawyers will be too busy writing ’em to overwhelm us with their number. That was the whole idea back in 1776 … maybe you didn’t get that memo, Bob.
On top of the decision by the 6 conservative Supreme Court Justices to eliminate judicial deference to federal agency experts, consider that today those same Justices eliminated the statute of limitations on challenges to federal regulations. Any organization or business can challenge a regulation put in place 10 or 20 years ago or more if they find or create a plaintiff who wasn’t around then but now claims harm. Think about the mischief and harm that could be caused by challenges to aviation regulations we thought were long settled.
The lifetime appointed conservative six Justices are well into seizing huge amounts of power from Congress and the Executive Branch.
I used to be a Libertarian before the party totally went insane and committed seppuku at this year’s national convention, but I still believe very firmly that anything that hinders the government’s ability to interfere in ones private, economic, spiritual, or cultural life is a good thing. Overturning Chevron was a good thing.
Robert A. Heinlein, a science fiction writer from late ’30’s to late ’80’s once suggested that a better way to organize a bicameral legislature would be to have one body to make laws, which process would require a 2/3rds majority, and give the other house the sole ability to rescind laws with a simple majority.
Seems to me to be the way it should be.
The real problem is that government seems to attract mediocre, lazy, incompetent, power-mad individuals who are completely disconnected from the populace. They have totally forgotten that they are supposed to be “public servants” and see themselves as “public masters”.
Personally I cannot think of anything government has done in my lifetime that could not
have been done better or not at all.
no, you did not read the opinion . there is no pandora’s box being opened. if there’s no record of congress giving the agency an authority in a law for 50 years, and then all of the sudden a new administration wants to change the meaning of previously defined Agency term, that was not subject to any challenge and now that is open to a challenge. No regs are getting thrown out. In Chevon, the EPA literally said they had changed what the “source” word meant several times in Clean Air, and Stevens said as long as that was “permissible” (defined as “reasonable”, i.e. not specifically against the recorded will of Congress), then there was NO role of the Judiciary to review that.
That was a nonsense interpretation and is rightly overturned.
The sky is not falling. This won’t change much in 14 CFR because most everything is very well defined. However one area such as the “flight Instruction in an Experimental Amateur-Built Aircraft” might be open to review. Or not. No one is saying the Agency doesn’t get deference, it’s saying it is not getting 100% no questioned asked deference. Which it never should have.
It’s disingenuous to say this decision will cause a logjam of litigation.
That only happens if the agencies decide to litigate every attempt to roll back illegal regulations.
Going forward, the ethical response from federal agencies is to immediately discard any regulation based on an ambiguous reading of the statute when it gets challenged. And only litigate the challenges that are firmly rooted in a strict, narrow reading of the statute.
It sure sounds like Russ has been sniffing the progressive cool aid. Maybe its time to find a web site without political comment if that is still possible.
I’m very unclear how this ruling will affect many areas of aviation. For instance if the FAA were to mandate the 737 Max aircraft would need to have an EICAS system starting in 2025 could Boeing just go to court and claim the FAA no longer has the authority to require that? If the FAA changes the certificate requirements for say an instrument rating could a judge rule they no longer have the power to do that? Many FAA regulations are subject to interpretation. The current debate about 135 Charter/Scheduled Charter rules comes to mind. Will the parties affected by any FAA rulings be able to go “judge shopping” if they don’t like the decision? Sometimes you need to be careful about what you ask for, this may be one of those times.
no, Chevron never said this, and overturning Chevon doesn’t change this. Go read it, it takes less time than reading a bunch of these crazy replies.
Anybody here live near Love Canal? Obvious harm to many people, with their government under regulating a benevolent chemical industry.
Russ stick to aviation. Our country has three branches of government for a reason. The executive branch does not have the authority to legislate the law, and “experts” from that branch have no business doing so. Chevron deference formalized bureacratic “rule making” bias and had to go. Here’s a non avi
Whether it pertains to aviation or not, we are in a major election year in the US, and political commentary creeps into every discussion, not just on Avweb. At least one of the major candidates for the chief of the Executive Branch has stated his desire to be an autocrat. We live in interesting times, to paraphrase an ancient Chinese curse….
ion example….Fauci!
Russ, I think that perhaps your thoughts on this issue belong in a personal blog, NOT on AvWeb. Your perception of our basic lawmaking seems to be slightly skewed, and rule making and interpretation by agencies has been a problem in this country for a long time. A basic tenant of American freedom is the right to bears arms, as specifically called for in our constitution. If it were not a constitutional issue, regardless of personal feelings on the issue, the ATF would have us owning nothing more than .410 shotguns with birdshot. Most areas of regulation don’t have the protection of the constitution, and to think that if an agency says that it is so, so it must be so, is ridiculous. You don’t even get to know who promulgated a ruling, it just comes from “the agency”, without a right to see who worked on it, or what their credentials are. As you seem to be a proponent of AI, I guess in the future a computer could spit out a ruling, with no recourse. How you turned this into an aviation thing, I don’t know. You have invented a problem where one currently does not exist, with “coulds” and “what ifs”. Please stay in your wheelhouse on this page, and if you can’t, perhaps it’s time Paul comes back an takes the reins.
Well, I guess it is not inconceivable that we might have Matt Gaetz deciding if Teledyne Continental or Lycoming can squash the warranty on the factory rebuilt engine after we used Braly GAMU G100UL exclusively.
Gami!
JFC. I come to AvWeb chasing an article about IO-550 fuel consumption and the side bar article lambasts bump stocks.
In very few places do the founding documents reference “the people” directly. The Second Amendment is one of them. Note that the 2A does not establish the right to keep and bear arms, nor does it say militia membership is required to do so. It says “the right of the people to keep and bear arms shall not be infringed.” The operative clause of the amendment seems rather straightforward to comprehend.
I can’t imagine the Founders including the 2A to make sure that the .gov could have guns….
The alphabet agencies brought this upon themselves both with over reach as well as partisan rule enforcement. One only has to look at the Trent Palmer case as a glaring example. Mr Palmer followed advisory circular advice in examining an off airport field, and has been fighting a violation for following that advice. But someone at an alphabet agency has decided that better to show who’s in charge.
In the short term the vacating of Chevron will bog down the courts. But in the long term it will result in better rule making and enforcement.
I’m not at certain large corporations have even their shareholders interest at heart. One need only view the testimony of the Boeing CEO in a recent Senate hearing to ponder the actual motivations of persons of his ilk (minutes 45 thru 58 may prompt ya to watch all of it): https://www.c-span.org/video/?536400-1/boeing-ceo-testifies-manufacturing-safety-v#
I swore to defend the US Constitution, there are many who don’t understand that it limits the laws enacted/enforced/defended…not the other way around. Dictatorships are much more “efficient” which works well right up until you are the one getting steamrolled…the strong feelings endorsing SCOTUS decision may be a result of experiencing bureaucracy approximating that effect.
There is notable irony that a resident of Canada is serving up the US Constitutional lecture. Relevant options seem to be to comment as an outsider realizing that the point of view may be different than a US resident/citizen, to comment on Canadian govt issues, to gain US citizenship (or move back to US if US citizen) or to endorse Canada as the 51st state and participate in our Enterprise.
But you are free to express that opinion whether Avweb hosts or not, or, heaven forbid, you hurt someone’s feelings. With that, Happy US Independence Day…it’s more than a BBQ on the 4th day in July.
Russ, I thought we were not going to delve into politics on this site. You started it, so why don’t we talk about our demented President?
I’ve never said we weren’t going to talk about politics. It’s inevitable because politics is rooted in every aspect of our lives, especially in highly regulated industries like aviation.
Russ, you clearly revealed your liberal bias with this opinion and it has no place in this publication. There’s so much hysteria in your piece. As an American, I’m proud that SCOTUS moved to reign in the unelected administrative state and force legislators to do their job.
Canadian lovers of Trudeau-style tyranny are surely confused over the common-sense Supreme Court ruling, long overdue. “Liberty is always freedom from the government.” Ludwig von Mises
Great. Now yet another (supposedly) neutral web source has been turned into a source of polemic diatribes from commentators not even subject to the laws in question.
Stick to reporting about flying. I guess the days of having authors like Deakin and the rest are long past (since this was absorbed by the Flying magazine borg). If I want political commentary on US legal goings-on by foreigners without a dog in the fight, I’ll check with the Economist or other sources whose opinion matters not but think they have something to say.
Enough is enough. If Avweb wants to jump the shark by dragging political mantras into their reportage…then as the old saying goes, “sow the wind, reap the whirlwind”.
Russ gets this all wrong (I’ll say why I think that below), but unfortunately this decision is very important to aviation. For those happy with the status quo, I can only say congratulations, you’ve managed to virtually destroy the thing you purport to love. Perhaps what you love is not the ability for regular people to use light aircraft for pleasure or travel? Maybe, in your bubble, you just don’t see it?
So sad that this AvWeb doesn’t understand that flying started in absence of a burdensome bureaucracy by three guys who defeated that limitless resources of the government.
I’m so happy that 6 supreme court justices have returned power to the people who are the real innovators in our society.
AvWeb is lost.
big government has gotten too big and non elected officials are making rules that should be made by elected officials who represent their district !!
Those damn unelected bureaucratic “experts” have *cursed* us with the safest commercial aviation system in the world… We need a system that works!! #EyeRoll
Need to get rid of all the nonsense, all the petty playpen politics and have a government as it was intended to be that serves the country in a sensible, reasonable, practical and effective manner. Period.
The process it’s really “a drag on” is charging people with crimes for violating policies made up by the alphabet agencies that blatantly violate the Constitution. The FAA, IRS, EPA, and ATF have been absolutely guilty of this, especially in recent years. Sorry, Ross, but you are wrong on this one. Slowing down rulemaking to prevent citizens from having their rights eroded is a victory for Americans.
Wow, there’s weak analysis here.
The Chevron ruling is not too complicated, it was regarding who could change the Clean Air Act definition of “stationary source” to try and essentially write a new law.
In that case, Congress never defined “stationary source” in the law. The Exec. Branch admitted they kept changing the definition of that term, and that they had the right to change the meaning of the term whenever they felt like it. The Stevens-authored Opinion overturned the then-precedent of allowing courts to use some common sense such as reference a static definition of what “stationary source” meant.
So like many Stevens decisions, it was an Orwellian attack on common sense reading the meaning of plain language English words. Stevens said courts had to defer to ANY permissible interpretation of the term of the Agency. Permissible was defined basically defined “reasonable” and not contrary to the statute, but the bar was extremely low. He specifically said that the Agency’s interpretation didn’t have to be the only possible interpretation, it only had to be permissible.
So basically every administration could change the meaning of any word of a regulation as long as doesn’t directly contradict the wording of the original stated intent of Congress.
The Chevron decision was ALWAYS nonsense. This is not a shocking decision, and no floodgate being opened. It’s just saying that when there’s a new Administration and instead of getting new authority through an actual law, the new leaders of an Agency tries to suddenly change the meaning of a word in a 50 yr old law like Clean Air to give an Agency new powers out of thin air that no one, including Congress ever heard of, that it’s perfectly acceptable to not 100% defer to the Agency on that.
“On the surface it looks like a classic conservative move”… This is B.S. Let’s get back to aviation. I come here to learn about the latest aviation stories. Last thing I want to hear is some weakly veiled political commentary. Can we get back to aviation?!?
Every event in the news is now an excuse for left/right political commentary regardless of the forum. This “political” editorial belongs in a political forum, not here. The size and power of the federal government has expanded past all reason during my lifetime. The Constitution gives legislative power to Congress, the power to enforce laws to the executive branch and the power to interpret them to the judiciary. The claim that courts may be clogged with suits challenging agencies interpretations of the law is not a reason or excuse to abandon constitutional separation of powers. It may be that some “good” laws and regulations may be logjammed as courts work out interpretation, but, otherwise, we face a far greater threat from total domination by the administrative state.
A lot of comments assume a static system, whereby the people making up rules keep up the pace. When the policy wonks realize that their egregious overreach would likely be overturned by the courts, they will likely back off. The court clogging should end up being short term.
Disagree or not with the impact of the Chevron decision, Russ has written admirably about a change in the Supreme Court’s interpretation of law that may very well impact aviation. The 6 conservative Justices, who have been appointed for life and are not accountable to anyone including Congress and the President, have put themselves in charge making decisions for which they have not a scintilla of expertise. And for all of you saying that Congress should just write un-ambiguous laws, I challenge you to write such a piece of law authorizing MOSAIC. And make sure every word in what you write is un-ambigously defined in what you write.
“making decisions for which they have not a scintilla of expertise.”
??
It’s pretty clear that neither you or Russ read Chevron or this decision and are misunderstanding what the issues were in Chevron or the impact of ending it. In Chevron:
– the EPA admitted that several times they unilaterally changed the definition of “source” of powerplant emissions, each time changing the scope of the reg without any input from Congress
– Jus. Stevens said great, an Agency can use ANY “permissible” interpretation for their definition, and even contradict previous Agency published definitions, and they defined “permissible” NOT as not the best, most reasonable, most scientifically accepted etc, but only that it couldn’t specifically go against the words of Congress. That’s it, other than not going word for word against Congress, anything goes.
– Jus. Stevens ruled as long as this low bar of “permissible” is met, there is NO legal recourse to challenge that Administration’s interpretation
Stevens had many crazy opinions, many of which are in the trash 40 yrs later. The idea that ANY interpretation by an Agency of the day is Law and can’t be challenged was always a nonsense argument.
And overturning it changes very little. Russ is uninformed. The sky is not falling.
“The idea that ANY interpretation by an Agency of the day is Law and can’t be challenged was always a nonsense argument.”
That’s not what Chevron said. Of course an agency interpretation can be challenged and hundreds if not thousands were challenged, often successfully under Chevron. Chevron says that the Court will defer to the agency where the Court finds that the agency’s interpretation of the law is reasonable.
In return for providing Avweb for free, I think it’s fine for the writers to occasionally vent their personal opinions. Those should be clearly separated from purely news articles when practical, however. It’s admirable that Avweb permits dissenting comments in response with very little censorship. Russ stated his opinion, not yours or mine. He has a right to have it, and a right to speak it.
I believe this is much ado about nothing. As noted above Chevron was a dead precedent. All the court has said here is that lower courts cannot simply defer to the administration, they have to rule as if both parties are equal. IOW, the courts will have to hear the complaint without prejudice. It doesn’t mean the EPA cannot enforce its rules on Acme Scum Dumping. It means that the people at ASD have a chance to point out why the EPA is being out of line. The judge doesn’t have to now believe the folks at ASD aren’t actually harming the environment by dumping their scum.
This should eliminate a lot of the most extreme nonsense which has created a lot of the hatred of government that so many lovers of government like to pretend is ridiculous. Eliminating the extremes is something I would think worthwhile, and would think would have bipartisan support.
The reason we have reached a tipping point is multifold, but one reason was that the House of Representatives was NEVER supposed to be capped. It was supposed to grow with the population. We need closer to 10,000 representatives, and having them could easily mean eliminating hundreds of thousands of unrepresentative, careerist, and faceless bureaucrats.
It would also mean that our representatives would be elected by people who know them and who know people who know them. No more George Santos types could sneak in, and no one in Congress could imagine coming home and NOT having to face the people in their districts.
Test
“We have to pass the bill so that you can find out what is in it.”
–Nancy Pelosi
Now THAT’S the way to run the country.
FUN FACT: Chevron Deference was used to protect big corporations from liability for the harm they caused.
The Chevron v NRDC case started because the EPA changed the law’s definition of “source of air pollution” to favor Chevron and other heavily-polluting companies.
So the NRDC filed a federal appeal, claiming that the EPA was illegally re-writing the law. The DC Circuit Court ruled in the NRDC’s favor.
Then SCOTUS ruled that the EPA were the “experts”, and therefore the courts (and the nation) had to simply defer to however they interpreted the law.
But wait, why would the EPA favor the very companies they’re supposed to “protect” us from?
Because if a regulatory agency has total control of an industry, the biggest players in that industry have a vested interest in taking over those agencies.
They fill them with their cronies, first to protect themselves from being regulated out of existence. But once they’re in the pilot’s seat, they can do whatever they want.
They can regulate their smaller competitors out of existence.
They can mandate the use of their products.
They can look the other way when they violate their own regulations, or just redefine the regulation at will (like they did with Chevron).
They can do whatever they want.
And up until last Friday, the courts were powerless to stop them.
So when you hear someone screeching that the end of Chevron Deference means a return to the dark days of pre-1984 America, when corporations could put radioactive shrapnel in our milk, remind them that the exact opposite is true.
This Xi’s why I hate news stories with just names of companies and departments and spokespeople. Tell me Bob Smith, executive director of this or Joan Johnson, chief of that. Otherwise, it’s not news, it’s propaganda.
“This is why”
I didn’t insert Xi in there on purpose, lol.