Supreme Court: Agency Deference Is Good Now

[Passages]

Less than a year after ending the latitude federal agencies were previously given by courts to implement laws, the Court’s conservatives brought it back for infrastructure approvals.

by David Dayen June 3, 2025

Last year, when the Supreme Court stripped the judicial deference granted to federal agencies to make decisions about implementing congressional statutes, many feared that judges would become the only real policymakers in America. Both the executive and the legislative branches would be diminished, and judges would have the power to permit or block virtually anything government attempted.

That judicial-centric vision of the future lasted all of 11 months. In a unanimous ruling last week, the Court signaled that judges must exercise “substantial” deference to agencies, at least when it comes to use of the National Environmental Policy Act (NEPA), which requires agency reports on environmental impacts for major infrastructure and construction projects to inform approval decisions.

NEPA has become tied to the abundance debate, with some raising questions about whether the law offers citizens too much opportunity to hold up building projects. But what’s more interesting and potentially more impactful is that the Supreme Court, in agreeing that NEPA should not be a major hindrance for infrastructure build-out, appeared to reverse itself on judicial deference to agencies, in ways that may not logically stop at NEPA.

This case is an example of how ideologically rigid conservative legal theories often cannot survive exposure to the real world, leading their proponents to backfill with significant exceptions and changes. The logic of these changes often boils down to the individual preferences of the justices; in this instance, it looks like federal agencies will be allowed to use discretion and expertise only when it leads them to the decision the Court wants them to take.
https://prospect.org/justice/2025-06-03-supreme-court-agency-deference-is-good-now/