Supreme Court Ruling Clips FRA, STB

By Jim Mathews / President & CEO

In a week full of bombshells from the Supreme Court, the Justices dropped a big one on Friday that could make it harder for the Federal Railroad Administration and the Surface Transportation Board to look out for passengers’ interests, just as those agencies have become newly assertive in the past few years protecting fare-paying passengers’ rights.

With some derision, the Court forcefully overturned precedent cited in more than 15,000 cases over the past four decades under which lower courts allowed experts at agencies to decide technical questions that Congress left open. In a 6-3 ruling that fell straight down ideological lines, the Court jettisoned that precedent – called “Chevron deference,” named after a 1984 case pitting Chevron against the Natural Resources Defense Council.

The Chevron court held that if Congress was silent or ambiguous in a particular law, courts should defer to Federal agencies’ expert opinions on regulatory interpretation of that law so long as the agency’s interpretation is reasonable. Today’s Loper Bright Enterprises Court rejected that idea completely in a decision written by Chief Justice John Roberts, which also took aim for several pages at the idea of stare decisis itself – the notion that courts should respect precedent whenever possible.

“Four decades after its inception, Chevron has...become an impediment, rather than an aid, to accomplishing the basic judicial task of ‘say[ing] what the law is,’” the Court declared, citing back to the famous Marbury v Madison case from the early days of the United States. In Marbury, the Supreme Court established that it holds the ultimate authority for deciding legal questions. Calling Chevron “fundamentally misguided,” Roberts wrote that “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the [Administrative Procedures Act] requires.”

Justice Elena Kagan led the dissenters in an equally forceful opinion joined by Justices Sotomayor and Jackson: “in one fell swoop, the majority today gives itself exclusive power over every open issue – no matter how expertise-driven or policy-laden – involving the meaning of regulatory law....The majority disdains restraint, and grasps for power.”

She noted that the majority’s decision now means that Federal judges will have to wrestle themselves with questions like these: “When does an alpha amino acid polymer qualify as a [regulated] ‘protein’” under the Public Health Service Act? “What makes one population segment” of western gray squirrels “’distinct’ from another” under the Endangered Species Act?

Until courts begin to apply the new Supreme Court holding to new cases, it will be hard to know exactly how this might affect passengers directly. But it’s clear that the decision clips the ability of agencies like the Federal Railroad Administration, as well as independent agencies like the Surface Transportation Board, to interpret the laws they are required to implement. It’s also very clear in the text of the ruling that the six Justices in the majority want the Federal courts to be much more aggressive in saying what Federal agencies can and can’t do.

The principle of Chevron deference on which everyone in rail has relied for some 40 years is what gives us the ability to ask Federal agencies to fight for your right to be on time, for your right to pay a fair price, and for your right to ride safe trains.

When the Supreme Court in 2022 came up with an idea called “major questions doctrine” to dismantle the Environmental Protection Agency’s ability to write and enforce powerplant regulations, I wrote a blog post explaining why the 40-year-old Chevron doctrine probably protected things like the Surface Transportation Board proceedings on Gulf Coast restoration or late trains investigations because Congress was definitely not “silent” on what they expected STB to do or the methods they would use to do it.

What we have now is completely unknown territory.

The strongest language in Loper Bright protecting future passenger-focused decisions, immediately after the declaration that “courts must exercise their independent judgment,” is an acknowledgement that “careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits,” – which fairly describes the law outlining the role of the Surface Transportation Board – "courts must respect the delegation, while ensuring that the agency acts within it.”

But even here, we face risk. The STB agreed nearly two years ago to open a deeply penetrating investigation into Union Pacific’s abysmal on-time performance (OTP) record hosting Amtrak’s Sunset Limited, the first such investigation under Section 213 of the 2008 Passenger Rail Investment and Improvement Act. With the investigation still underway, Sunset performance improved dramatically. But in nearly every response filing to STB orders in that probe, Union Pacific made a point of claiming that it felt the entire proceeding was unconstitutional.

Maybe today’s Loper Bright decision frees a lower court to decide that STB was not acting within the delegation Congress gave it?

[You can read the Supreme Court’s ruling, plus dissents, by clicking here. My first blog post flagging this as an issue for rail advocates can be read by clicking here.]