Texas Environmental Litigation in the Post-Chevron Deference Era

Down Goes Chevron

This past term, the United States Supreme Court overruled Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) in companion cases Relentless, Inc. v. Dep’t of Commerce (No. 22-1219) and Loper Bright Enterprises v. Raimondo, No. 22-0451, 144 S. Ct. 24 (2024). The court overruled the decades-long principle of Chevron deference, now holding that the Administrative Procedure Act requires courts to exercise independent judgment in deciding whether an agency has acted within its statutory authority and may no longer defer to an agency interpretation of law simply because a statute is ambiguous. This decision could have far-reaching effects on federal agencies, particularly in the Trump administration during a period of deregulation. Given that federal agencies—like the Environmental Protection Agency (EPA) and the Department of Health and Human Services (HHS)—play a significant role in environmental law and regulations, Relentless and Loper will likely impact environmental litigation on the federal level in the coming years. 

But This is Texas

Notwithstanding the significant change in federal law, Texas still has an analogous doctrine of Chevron deference that has not been overruled—or at least, has not been overruled yet. See, e.g., Combs v. Roark Amusement & Vending, L.P., 422 S.W.3d 632, 635 (Tex. 2013) (“If a statute is vague or ambiguous, we defer to the agency’s interpretation unless it is plainly erroneous or inconsistent with the language of the statute.”). However, there are pending petitions in the Texas Supreme Court through which the court could potentially consider this doctrine. See, e.g., Accident Fund Gen. Ins. Co. v. Tex. Dep’t of Ins., No. 23-0273 (action by insurance companies challenging validity and applicability of an agency rule regarding criteria for entitlement to supplemental income benefits under the Texas Workers’ Compensation Act); Tex. Dep’t of State Health Servs. v. Sky Mktg. Corp., No. 23-0887 (action by hemp vendors challenging agency rule designating delta-8 THC as unlawful). It will be worth watching to see if the Texas Supreme Court follows its federal counterpart in overruling Texas’ analogous doctrine to Chevron deference. Environmental litigators in Texas should keep tabs on potential developments in agency deference under state law as the current Texas Supreme Court term progresses and in future terms. Moreover, the current divergence in Texas and federal law on this doctrine may impact litigation strategy depending on where current and future cases are filed and the applicable state versus federal laws. 

What to Watch For

Finally, Texas environmental litigators should further consider the impact of the newly established Fifteenth Court of Appeals, as this court’s newly appointed judges now have exclusive statewide jurisdiction for cases brought by or against the state.  As such, many cases involving agencies like the Texas Commission on Environmental Quality (TCEQ) and the Railroad Commission of Texas (RRC)—which play a primary role in state environmental law and regulation—will no longer be heard by the Third Court of Appeals that previously heard most TCEQ and RRC cases. For now, at least, how the Fifteenth Court of Appeals will handle cases implicating Texas’ Chevron doctrine, which remains good law, has yet to be seen.