Commentators called it “accidental,” “temporary,” and “destined to obscurity.”¹ So how did the U.S. Supreme Court’s 6-0² decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. become a landmark decision?

Justice John Paul Stevens, a former judge on the U.S. Court of Appeals for the Seventh Circuit – later nominated to the U.S. Supreme Court in 1975 by President Gerald Ford – is credited with the Chevron decision.³ The Chevron doctrine, as it would later be known, sometimes required courts to defer to “permissible” agency interpretations of statutes those agencies administer, even if a reviewing court read the statute differently.⁴

As the story goes, Chevron ushered in the new age of administrative law without much fanfare.⁵ It was only a few years later that its landmark status would begin to take shape. But like any story involving heroes or villains, there is a rise to glory before the fall.

Recently, the U.S. Supreme Court (6-2) overruled Chevron in Loper Bright Enterprises v. Raimondo, holding that Chevron violated section 706 of the Administrative Procedures Act (APA) of 1946. Section 706 states that reviewing courts “shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”

Chevron now joins state counterparts such as the 1995 decision in Harnischfeger Corp. v. Labor & Industry Review Comm’n,⁶ which was overruled in 2018 by Tetra Tech EC Inc. v. Wisconsin Department of Revenue.⁷ In Tetra Tech, the Wisconsin Supreme Court ended the court’s “practice of deferring to administrative agencies’ conclusions of law.”⁸

This article gives a brief synopsis of the rise and fall of Chevron and the new standards that apply when courts are reviewing agency action at the state and federal level.

Bubble Regulations

Chevron was really about deregulation. The case dealt with the Clean Air Act Amendments of 1977 (enacted under President Jimmy Carter).

The law imposed certain requirements on states that did not meet national air quality standards established by the U.S. Environmental Protection Agency (EPA).

One EPA regulation mandated “nonattainment” states to establish permit programs regulating “new or modified major stationary sources” of air pollution.⁹ A permit could not be issued unless certain stringent conditions were met.¹⁰

Under the Carter administration EPA, “new or modified individual pieces of equipment are considered sources and require review if they emit more than a threshold amount.”¹¹ This definition would apply the permit requirement to any new or modified individual equipment.

But after President Ronald Reagan took office in 1981, the EPA adopted the “bubble” or “plantwide” definition of the term “stationary source.”¹²

Under this definition, “an existing plant that contains several pollution-emitting devices may install or modify one piece of equipment without meeting the permit conditions if the alteration will not increase the total emissions from the plant.”¹³

In effect, the definition “puts an imaginary bubble over an entire industrial complex and looks at changes in the amount of pollution coming out of a hole at the top.”¹⁴ If the net effect of pollution did not change, the permit requirement did not apply.

The question presented by these cases, according to Justice John Paul Stevens, “is whether EPA’s decision to allow States to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single ‘bubble’ is based on a reasonable construction of the statutory term ‘stationary source.’”¹⁵

High Court Decides

In 1982, a three-judge panel for the U.S. Court of Appeals for D.C. Circuit looked to the “purposes of the nonattainment program” to vacate the Reagan administration EPA’s plantwide interpretation of “stationary source,” noting the purpose of the Clean Air Act was to improve air quality in nonattainment states, not maintain the status quo.¹⁶

The U.S. Supreme Court in Chevron reversed (6-0) and upheld the Reagan administration EPA’s plantwide (or “bubble”) definition as a “permissible construction of the statutory term ‘stationary source.’” It concluded that “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency” when Congress has explicitly or implicitly left a gap for the agency to fill.¹⁷

When Justice Stevens made this pronouncement, he left the impression that this was settled law. “We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer,and the principle of deference to administrative interpretations,”¹⁸ he wrote.

One legal commentator, decades later, said the Chevron decision “failed to understand the rationale behind the precedents on which it relied.”¹⁹ Another viewed Chevron’s two-step framework as containing “subtle but significant” departures from the law.

“That law had been something of a hodge-podge, but the conventional wisdom was that it required courts to assess agency interpretations against multiple contextual factors, such as whether the agency interpretation was longstanding, consistently held, contemporaneous with the enactment of the statute, thoroughly considered, or involved a technical subject as to which the agency had expertise.The two-step formula provided no logical place for courts to consider these contextual factors.”²⁰

The Rise of Chevron as a Landmark

Neither Justice Stevens nor the other justices regarded Chevron as a “watershed” decision about judicial standards of review.²¹ No concurring or dissenting opinions were filed.

The Supreme Court cited Chevron only once the following term.²² Stevens, who sometimes sidestepped Chevron in deciding other cases, commented some years later that he viewed the decision as nothing more than a restatement of existing law.²³

But the Chevron doctrine caught on. “By the end of the 1980s, the percentage of deference cases in the Supreme Court adopting the Chevron framework had risen to around 40%; by the early 1990s it was up to around 60%,” noted law professor Thomas Merrill.²⁴

Merrill, now at Columbia Law School, surmised that several “fortuitous events” contributed to Chevron’s rise to prominence. One major factor, Merrill suggested, was executive advocacy by the U.S. Justice Department.

“The Department urged that Chevron serve as the relevant standard of review at nearly every turn, and the Department appeared in court much more frequently in cases raising questions about review of questions of law than any other category of litigant.

“It is not difficult to imagine that over time, the Department’s persistence would pay off, and courts would start to regard Chevron as the accepted standard.”²⁵

Chevron’s two-step framework – 1) decide if a regulation is ambiguous and 2) defer to the agency’s reasonable interpretation – was an all-or-nothing approach. Nevertheless, Chevron’s influence on federal administrative law was born.

Deference in Wisconsin

Like the APA at the federal level, the Wisconsin statutes address court review of administrative agency decisions, at Wis. Stat. section 227.57.

Wis. Stat. section 227.57(10), for instance, says that when courts review agency decisions, “due weight shall be accorded the experience, technical competence, and specialized knowledge of the agency involved, as well as discretionary authority conferred upon it.”

When reviewing a state agency’s interpretation of an ambiguous statute, three levels of deference evolved, “starting with roots in the late 1800s.”²⁶ State courts would grant “great weight” deference, “due weight” deference, or no deference (de novo review).²⁷

In 1995, in Harnischfeger Corp. v. Labor & Industry Review Commission, the Wisconsin Supreme Court recognized that “statutory interpretation is a question of law that courts review de novo” and “a court is not bound by an agency’s interpretation of a statute.”²⁸

However, in Harnischfeger, the courtalso noted that “courts should defer to an administrative agency’s interpretation of a statute in certain situations.”²⁹

Great weight deference was appropriate once a court concluded that 1) the Wisconsin Legislature charged the agency with administering the statute, 2) the agency’s interpretation is one of long-standing, 3) the agency employed its expertise or specialized knowledge in forming the interpretation, and 4) the agency’s interpretation will provide uniformity and consistency in the application of the statute.³⁰

“Once it is determined under Lisney that great weight deference is appropriate, we have repeatedly held that an agency’s interpretation must then merely be reasonable for it to be sustained,”³¹ wrote Wisconsin Supreme Court Justice Donald Steinmetz in 1995.

Courts would apply due weight deference when “‘the statute is one that the agency was charged with administering,’ and ‘the agency has some experience in an area, but has not developed the expertise which necessarily places it in a better position to make judgments regarding the interpretation of the statute than a court.’”³² Like Chevron, there were detractors to Harnischfeger’s acceptance of what was described as“decision avoidance.”

Tetra Tech in 2018

Former Wisconsin Supreme Court Chief Justice Patience Roggensack, later part of a majority court that overruled Harnischfeger and other cases in Tetra Tech, was writing on the wall in 2006.

“Because of the extraordinary deference that is currently accorded to agency legal decisions under the standard of great weight deference, I suggest that at least in this area, it may be appropriate for the court to re-examine its use of judicially created limits on its own review,” then-Justice Roggensack wrote in the Marquette Law Review.³³

In Tetra Tech, the Wisconsin Supreme Court ended the practice of deferring to agencies’ conclusions of law. All the justices, including then-Chief Justice Roggensack, agreed to affirm the lower court, but five justices wrote or joined three concurring opinions.

At the time, commentators noted that the court was fractured in its reasoning and analysis and raised the uncertainty of how the lower courts would apply the decision.³⁴

Since Tetra Tech, the decision has been cited in 101 Wisconsin cases.³⁵ U.S. Supreme Court Justice Neil Gorsuch cited Tetra Tech, dissenting to the Court’s denial of a petition for review of certiorari.³⁶ The Seventh Circuit Court of Appeals has also cited the case.³⁷

The Wisconsin Legislature codified Tetra Tech several months after the case was decided, at Wis. Stat section 227.57(11). That provision states: “Upon review of an agency action or decision, the court shall accord no deference to the agency’s interpretation of law.”

Wisconsin courts now apply de novo review to agency interpretations of law. “Henceforth, we will review an administrative agency’s conclusions of law under the same standard we apply to a circuit court’s conclusions of law – de novo,” wrote Justice Daniel Kelly. “As with judicial opinions, we will benefit from the administrative agency’s analysis. …”³⁸

Great weight deference is gone. However, the court noted that due weight is appropriate, under Wis. Stat. section 227.57(10), in considering an administrative agency’s arguments.³⁹

Tetra Tech’s “de novo” standard, when reviewing agency interpretations of statutes, has been the law in Wisconsin for almost seven years. Although Tetra Tech involved a statute (enacted by the legislature), it also extends to an agency’s interpretation of its own rules.⁴⁰

However, the Wisconsin Court of Appeals recently declined to extend Tetra Tech’s holdingtomunicipal agency interpretations of the municipality’s own ordinances.⁴¹ In January 2025, the Wisconsin Supreme Court denied (5-2) a petition for review of that decision.⁴²

Political Debate

The Chevron decision also had its early critics. According to one perspective, the decision reflected a “deference to political decision-making that undermines the safeguards against arbitrary agency action that are traditionally provided by judicial review.”⁴³

Judicial deference to the agency, the Harvard Law Review Association (HLRA) remarked in 1984, “may allow the political preferences of the new administration to subvert the balance of policies struck by Congress.”⁴⁴ The HLRA viewed Chevron as a “temporary, though unfortunate” decision so long as it allows regulators “to respond to the popular will by following the political philosophy of the incumbent administration.”⁴⁵

When the HLRA wrote that statement, President Reagan was the incumbent. The Reagan administration was pushing for more deference to agency deregulation, the issue in Chevron, and less deference when imposing more regulation.⁴⁶ Subsequent administrations, Democratic and Republican, also availed themselves of Chevon.

Over four decades,Chevron has been cited in 18,861 cases and 14,115 law review articles.⁴⁷ In 2016, Chevron was ranked number 66 on the list of most-cited federal cases,⁴⁸ two spots behind a well-known Fourth Amendment case, Terry v. Ohio, 392 U.S. U.S. 1 (1968).

“It does not stretch the imagination to believe that, on every single working day of the year, there exists in the employ of the federal government a judge, an executive officer, or a legislator who expressly invokes or formulates policy premised on Chevron,” wrote Virginia Law School Professor Aditya Bamzai in 2017.⁴⁹

Bamzai wondered whether, “given Chevron’s 30-year run, it is simply too late to upset the deference applecart and return to the views that prevailed before the mid-twentieth century.” Now, under Loper Bright, the applecart has been upset.

Loper Bright Enterprises

Blame (or congratulate) commercial fishers for Chevron’s demise. The Magnuson-Stevens Fishery Conservation and Management Act regulates commercial fishing to preserve fishery resources. The Act extends the U.S. government’s fishery management authority.

The National Marine Fisheries Service (NMFS), through regional councils, develops the fishery management plans and regulations.⁵⁰ One regulation may require that “one or more observers be carried on board” domestic vessels “for the purpose of collecting data necessary for the conservation and management of the fishery.”⁵¹

Foreign fishing vessels in U.S. jurisdiction, vessels in limited-access programs (with fishing quotas), and vessels in the North Pacific jurisdiction must pay for observers, with the observer fee capped at two to three percent of the value of the fish harvested on the vessel.⁵²

The regulations did not initially address whether Atlantic herring vessels must bear the costs of observers, if mandated. Under an amendment, if the government declines to assign an observer on a herring vessel, the vessel must pay an estimated $710 per day.

Loper Bright Enterprises and other fishing companies that operate herring vessels in the Atlantic Ocean challenged the observer fee rule, noting they often stay at sea for 10-14 days and don’t always fish for herring.

The U.S. Court of Appeals for the D.C. Circuit upheld the observer fee regulation under Chevron, concluding the NMFS’s interpretation of the Act was “reasonable.”⁵³

The First Circuit Court of Appeals reached the same conclusion, in a different case brought by other fishing companies. The U.S. Supreme Court accepted review of both cases. Paul Clement, a member of the State Bar of Wisconsin, argued the case for Loper Bright.

“This case well illustrates the real-world costs of Chevron, which do not fall exclusively on the Chevrons of the world but injure small businesses and individuals as well,” Clement noted in his oral argument, on Jan. 17, 2024.⁵⁴

In overturning Chevron, the six-justice majority harkened back to Marbury v. Madison: “[it] is emphatically the province and duty of the judicial department to say what the law is.”⁵⁵

Chief Justice John Roberts noted that the U.S. Supreme Court, since the 1800s, has recognized “that exercising independent judgment often included according due respect to Executive Branch interpretations of federal statutes.”⁵⁶

“‘Respect,’ though, was just that,” Chief Justice Roberts wrote. “The views of the Executive Branch could inform the judgment of the Judiciary, but did not supersede it.

“Whatever respect an Executive Branch interpretation was due, a judge ‘certainly would not be bound to adopt the construction given by the head of a department,’” Roberts wrote, citing a 1932 decision. “Otherwise, judicial judgment would not be independent at all.”

In his majority opinion, Chief Justice Roberts traced a line of cases since the New Deal, which unleashed an expansion of administrative process and agency powers. Those cases extended agency deference on determinations of fact, but not law, he explained.

“Nothing in the New Deal era or before it thus resembled the deference rule the Court would begin applying decades later to all varieties of agency interpretations of statutes,”⁵⁷ Chief Justice Roberts wrote.

Then came the APA, in 1946. It requires a reviewing court to “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”⁵⁸

Loper Bright now tells courts to “exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.”⁵⁹

“The very point of the traditional tools of statutory construction – the tools courts use every day – is to resolve statutory ambiguities,” wrote Chief Justice Roberts, noting the U.S. Supreme Court has not deferred to an agency decision since 2016.⁶⁰

The APA does not mean courts can never “seek aid from the interpretations of those responsible for implementing particular statutes,” Chief Justice Roberts wrote.

“Such interpretations ‘constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance’ consistent with the APA,” wrote Chief Justice Roberts, citing Skidmore v. Swift & Co. “And interpretations issued contemporaneously with the statute at issue, and which have remained consistent over time, may be especially useful in determining the statute’s meaning.”⁶¹

But, Chief Justice Roberts wrote, “the deference that Chevron requires of courts reviewing agency action cannot be squared with the APA” and “[n]either Chevron nor any subsequent decision of this Court attempted to reconcile its framework with the APA.”⁶²

Now, under Loper Bright Enterprises, “courts may not defer to an agency interpretation of the law simply because a statute is ambiguous.”⁶³ Instead, courts must employ the regular tools of statutory construction when interpreting an agency regulation.

“The majority’s frequent reference to Skidmore and use of language from that decision suggest that, going forward, the Court may expect lower courts to look to Skidmore to guide their consideration of agencies’ preferred interpretations of ambiguous statutes,” legislative attorney Benjamin Barczewski wrote for the Congressional Research Service.⁶⁴

New Landmark, New Era

The term “landmark decision” may be overused when it comes to U.S. Supreme Court decisions. But, according to two observers,⁶⁵ the designation is deserving when discussing Loper Bright Enterprises, the case that laid the Chevron doctrine to rest.

“Chevron had long been a target of civil libertarians and certain business-friendly interests, especially as the scope of federal administrative authority has grown over time,” wrote Joseph S. Diedrich and Gregg N. Sofer after the Loper Bright decision came down in 2024.⁶⁶

“For many, Loper Bright represents a welcome change and empowers courts to more easily restrain federal agency action. At the very least, it will provide a more level playing field on which to dispute agencies’ interpretations of ambiguous statutory language. Yet not all heavily regulated industries may welcome the decision: business-friendly agency rules and decisions will also now receive the same neutral adjudication on questions of law.”⁶⁷

Numerous cases have already put Loper Bright to the test. It has been cited in 476 cases, including four cases in the Seventh Circuit Court of Appeals.

“In place of Chevron’s familiar two-step test, the Supreme Court now instructs us to ‘exercise [our] independent judgment in deciding whether an agency has acted within its statutory authority,’” wrote Judge John Lee in Bernardo-De La Cruz v. Garland, on appeal from the Board of Immigration Appeals.⁶⁸

Also of Interest
Want More Insight on Judicial Review of Agency Decisions?

If so, plan to attend the State Bar of Wisconsin’s 2025 Annual Meeting & Conference (AMC)! The closing plenary, “The End of Deference? Tetra Tech, Loper Bright, and Judicial Review of Agency Decisions,” features a panel of experts and commentators speaking on the topic.

Join moderator James Goldschmidt (Quarles & Brady LLP) for a discussion featuring former Wisconsin Supreme Court Chief Justice Patience Roggensack (retired), Dane County Circuit Court Judge Shelley Gaylord (retired), and Northwestern Law School Professor James Speta.

Mark Twain famously quipped, “The report of my death was an exaggeration.” Is the same true of judicial deference to agency decisions? In this session, we’ll tackle that question – and its implications for the future – with jurists and scholars on the front lines of the evolving landscape of judicial review. The U.S. Supreme Court’s 2024 decision in Loper Bright, overturning Chevron, directs federal courts to use standard interpretive tools to discern the meaning of ambiguous statutes, rather than deferring to agencies’ legal interpretations. But when Congress is silent or intentionally vague on a particular subject, what’s a judge to do? Wisconsin courts have had several years of practice in such cases thanks to the Wisconsin Supreme Court’s 2018 decision in Tetra Tech, which made Wisconsin a Chevron-free zone six years before Loper Bright. Whether you are a judge or a lawyer, gain a better understanding of the new normal and what the future holds for the Deference Doctrine.

The 2025 Annual Meeting & Conference is June 18-20 at the Monona Terrace Community & Convention Center in Madison. The closing plenary session is Friday, June 20, from 11:40 to 12:30 p.m. Learn more and register to attend the 2025 AMC at wisbar.org/AMC/2025/Pages/Home.aspx.

Endnotes

1 Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, 66 Admin. L. Rev. 253, 276 (2014); Harv. L. Rev. Ass’n (HLRA), Judicial Review of Agency Rulemaking, 98 Harv. L. Rev. 247, 248 (1984).

2 Chevron U.S.A. Inc. v. Natural Res. Def. Council Inc., 467 U.S. 837 (1984), overruled byLoper Bright Enters. v. Raimondo, 603 U.S. 369 (2024). Justice Thurgood Marshall, Justice William Rehnquist, and Justice Sandra Day O’Conner did not take part in the U.S. Supreme Court’s 6-0 decision in Chevron. Rehnquist and Marshall were absent because of health issues. O’Conner heard oral argument but later recused herself, citing a financial interest in one of the companies that was a party to the case.

3 Merrill, supra note 1, at 255.

4 Chevron, 467 U.S. at 840.

5 Merrill, supra note 1, at 266-68.

6 Harnischfeger Corp. v. Labor & Indus. Rev. Comm’n, 196 Wis. 2d 650, 539 N.W.2d 98 (1995).

7 TetraTech EC Inc. v. Wisconsin Dep’t of Revenue, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21.

8 Id. ¶ 3.

9 Chevron, 467 U.S. at 840.

10 Id.

11 HLRA, supra note 1, at 248.

12 Id.

13 Chevron, 467 U.S. at 840.

14 Merrill, supra note 1, at 258.

15 Chevron, 467 U.S. at 827.

16 Merrill, supra note 1, at 255. D.C. Circuit Judge Ruth Bader Ginsburg, appointed to the U.S. Supreme Court in 1993, wrote the decision.

17 Chevron, 467 U.S. at 844.

18 Id.

19 Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908, 1000 (2017).

20 Merrill, supra note 1, at 255-56.

21 Id. at 272

22 Id.

23 Id. at 275.

24 Id. at 276.

25 Id. at 281.

26 Joseph S. Diedrich, Judicial Deference to Municipal Interpretation, 49 Fordham Urb. L.J. 807, 809 (2022).

27 Id.

28 Harnischfeger Corp.,196 Wis. 2d at 659.

29 Id.

30 Id.

31 Id.

32 Tetra Tech EC, 2018 WI 75, ¶ 15, 382 Wis. 2d 496.

33 Hon. Patience Drake Roggensack, Elected to Decide: Is the Decision-Avoidance Doctrine of Great Weight Deference Appropriate in This Court of Last Resort?, 89 Marq. L. Rev. 541, 560 (2006).

34 See Jeffrey A. Mandell & Barbara A. Neider, Sea Change: No More Great Weight Deference to Administrative Agencies, WisBar InsideTrack (July 18, 2018); see also Diedrich, supra note 26.

35 As of Feb. 10, 2025.

36 Buffington v. McDonough, 143 S. Ct. 14, 22 (2022) (citing Tetra Tech for proposition that “[s]everal state courts have refused to import a broad understanding of Chevron in their own administrative law jurisprudence.”)

37 Pit Row Inc. v. Costco Wholesale Corp., 101 F.4th 493, 507 (7th Cir. 2024).

38 Tetra Tech EC, 2018 WI 75, ¶ 84, 382 Wis. 2d 496.

39 Id. ¶ 3.

40 See Green Bay Sportservice Inc. v. Department of Workforce Dev., No. 2017AP608, 2018 WL 4656748 (Wis. Ct. App. Sept. 26, 2018) (unpublished opinion not citable per Wis. Stat. § 809.23(3)).

41 State ex rel. Majchrzak v. Bayfield Cnty., No. 2022AP001241, 2024 WL 2933260 (Wis. Ct. App. June 11, 2024) (unpublished opinion not citable per Wis. Stat. § 809.23(3)).

42 Justice Rebecca Bradley and Justice Brian Hagedorn dissented from the denial.

43 HLRA, supra note 1, at 248.

44 Id.

45 Id. at 254.

46 Merrill, supra note 1, at 276.

47 According to Westlaw, as of Jan. 30, 2025.

48 Adam N. Steinman, The Rise and Fall of Plausibility Pleading?, 69 Vand. L. Rev. 333, 336 (2016).

49 Bamzai, supra note 20, at 912.

50 Loper Bright Enters. v. Raimondo, 603 U.S. 369, 381 (2024).

51 Id.

52 Id.

53 Loper Bright Enters. v. Raimondo, 45 F.4th 359 (D.C. Cir. 2022).

54 Loper Bright Enters., 603 U.S. 369, Transcript of Oral Argument (No. 22-451) at 3, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-451_114p.pdf.

55 1 Cranch 137, 177, 2 L. Ed. 60 (1803).

56 Loper Bright Enters., 603 U.S. at 386.

57 Id. at 390.

58 5 U.S.C. § 706(2)(A).

59 Loper Bright Enters., 603 U.S. at 369.

60 Id. at 375.

61 Id. at 394 (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

62 Id. at 398.

63 Id.

64 Benjamin M. Barczewski, Loper Bright Enterprises v. Raimondo and the Future of Agency Interpretations of Law, Congressional Research Serv. (Dec. 31, 2024).

65 Joseph S. Diedrich & Gregg N. Sofer, Landmark Supreme Court Decisions Restrain Federal Administrative Agency Power, Husch Blackwell (June 28, 2024).

66 Id.

67 Id.

68 114 F.4th 883, 890 (7th Cir. 2024).