Scientific and Technical Expertise After Loper Bright

Abstract

Federal agencies were once trusted for their expertise in administering complex statutory schemes, particularly with regard to science and technology. Unlike federal judges, agency officials can narrowly focus on a specific area of law and have access to experts to inform their adjudication and rulemaking. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, the Supreme Court created a presumption that absent language to the contrary, Congress intends for agencies to interpret statutory ambiguities. It allowed expert agencies and generalist judges to work together, enabling the government to efficiently operate. That court-agency partnership abruptly ended, however, in Loper Bright Enterprises v. Raimondo. Using Article III as a framework, the Supreme Court distinguished legal expertise and scientific expertise, noting that the former receives no deference while the latter has merely the power to persuade. Above all, the Court repeatedly stressed that judges have an obligation "to independently interpret" statutes. This Article argues that no such bright line exists between legal and scientific expertise. Generalist appellate judges will be forced to independently evaluate highly technical interpretations of statutes-a task that judges are ill-equipped to accomplish. Rather than take the time to properly understand complex statutory regimes, judges may purposefully or inadvertently fall back on partisanship. Congress is not wholly without power, however: beyond expressly delegating interpretive authority to agencies where constitutionally permissible, Congress could give appellate courts access to neutral advisors with expertise in the relevant scientific or technical area. This would reduce strain on courts of appeal and ensure high-quality judicial decisionmaking, while preserving the primacy of courts as interpreters of statutory ambiguity.

Keywords: administrative law, Loper Bright, Chevron, expertise, judicial review