A world without Chevron deference empowers courts to ignore agencies’ interpretations of their own statutory authority, bringing new vulnerability to emissions regulations, FMCSA rulemaking, and more.
Jeremy Wolfe
The Supreme Court in June overruled Chevron deference, a major legal doctrine that articulated federal agencies’ ability to interpret the law.
This raises the question of whether agency policies, like some emissions regulations, will still be supported by the judicial system. But is this a big deal for the trucking industry?
“Some have argued it’s not a big deal because courts have been working to interpret statutes to find there is no ambiguity in the first instance (in which case, Chevron did not apply),” Prasad Sharma, partner at Scopelitis and general counsel for the Truckload Carriers Association, told FleetOwner. “They point to the fact that the Supreme Court has not relied on Chevron to decide a case of late.
“However, it’s a longstanding precedent that was largely followed by the lower courts, so it is a big deal. It will shift power from agencies to the judiciary and heighten the importance of Congress legislating with clarity to address issues that arise in the modern world.”
The end of Chevron deference represents a significant shift in interpretive power. With it comes a new possibility for courts to block major agency rulemakings from the EPA, FMCSA, and others.
Chevron deference shot down
In June, the Supreme Court overruled the 1984 Chevron ruling in the case Loper Bright Enterprises v. Raimondo.
What was Chevron deference?
Chevron deference is a legal doctrine suggesting that, when a law concerning a federal agency is ambiguous, federal courts should defer to the agency’s interpretation of the law.
According to Cornell Law School, the doctrine came from the 1984 case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., where the Supreme Court articulated its opinion on deferring to agencies for interpretations. This deference was appropriate under two conditions: when Congress had not spoken directly to the precise issue in question, and when the agency charged with executing the law held a reasonable interpretation.
“Chevron was a case that led to a judicial doctrine that when an agency is promulgating a substantive rule (one with legal effect) under the Administrative Procedures Act and there is some ambiguity in the authorizing statute enacted by Congress, courts should defer to an agency’s interpretation of the statute so long as it is reasonable,” Prasad Sharma, partner at Scopelitis and general counsel for the Truckload Carriers Association, told FleetOwner. “This meant that a court should accept the agency’s interpretation even if there were other possible reasonable alternative interpretations.”
Chevron deference was a major part of administrative law for the last 40 years. It lent significant support to agencies’ rulemakings, such as EPA’s emissions regulations, for decades.
“The Supreme Court overturned the Chevron precedent, indicating it was inconsistent with the separation of powers under the Constitution, which assigns interpretation of the law to the judiciary,” Sharma said.
The decision shifts the power dynamic between the judiciary and federal agencies. Courts are no longer required to follow an agency’s reasonable interpretation of a relevant law.
“Going forward, courts are to do the work of interpreting statutes enacted by Congress using the tools available to courts,” Sharma said. “Courts may still consider the views of an agency and give it weight based on how long the agency has consistently held the view, the thoroughness of the agency’s consideration, and the validity of its reasoning. However, the courts no longer have to defer to the agency’s interpretation.”
This reduces agencies’ influence in defending against legal challenges.
“To the extent that an agency is filling gaps left unaddressed in a statute or interpreting an ambiguity, the agency will not enjoy deference but will, like other litigants, have to use its power to persuade,” Sharma said. “Because Congress is often unable to legislate with clarity on the wide range of potential questions that arise when Congress addresses an issue, agencies will have less latitude to carry out their views/preferences. On the other hand, some would argue that agencies were, under Chevron, exercising authority they never really should have had.”
What does this mean for trucking?
Judges received a newfound freedom to strike down major agency rulemakings. For trucking, relevant agency rules now have a new vulnerability in the court system.
“The reversal of Chevron is relevant to all agency rulemaking subject to the APA,” Sharma said. “For commercial transportation, that means substantive rules out of FMCSA, NHTSA, EPA, FHWA, among other agencies.”
This could include EPA emissions regulations, carriers’ Compliance, Safety, and Accountability scores, and more.
“It could be any number of statutes that have left gaps or ambiguities (arguably, nearly every statute),” Sharma said. “One area getting interest is the transition to zero-emission vehicles in California under the Clean Air Act and EPA’s construction of its waiver authority.”
EPA-granted waivers allow the California Air Resources Board to set its own emissions regulations. The Clean Air Act permits the EPA to grant California waivers to set its own emissions standards. This helped CARB develop zero-emissions vehicle mandates under its Advanced Clean Trucks regulation.
Legal challenges currently surround EPA’s authority to grant the waiver for ACT, in part because the agency cannot set its own EV mandate, as Julia Stein writes in Legal Planet. According to Stein, a world without Chevron deference means that reviewing courts have greater power to ignore EPA’s own interpretation of its waiver-granting authority—an existential threat to the California ZEV mandate.
“Moreover, in combination with the Court’s revival of the major questions doctrine, rulemaking with impacts on broad swaths of the economy will be under heightened scrutiny,” Sharma told FleetOwner.
The major questions doctrine became most relevant after the Supreme Court’s 2022 decision in West Virginia v. Environmental Protection Agency. According to this doctrine, courts should hesitate to assume agencies have the independent authority to make actions of economic or political significance without explicit Congressional approval.
The major questions doctrine and judges’ newly expanded authority to interpret law illustrate a shift in power away from federal agencies. Agency rulemaking has new vulnerabilities in the judicial system. Agencies hoping to make grand changes to the trucking industry could face new, critical setbacks in court.
Doug Marcello
WHY IT MATTERS: The value of safety and risk is not theoretical. ATRI’s
Annual Operational Cost of Trucking Study quantifies its value and importance to the bottom line. And with anticipated premium increases, it is now more vital than ever to reduce risk so that an insurance captive is a financially viable alternative for your company.
THE BIG PICTURE: I recently wrote that safety was an investment, not a cost. Management and operations should not think of it as a burden, but as a protection of the bottom line.
This value is brought home by ATRI’s Annual Operational Cost of Trucking Study for 2024. Get a copy at An Analysis of the Operational Costs of Trucking: 2024 Update (truckingresearch.org)
Insurance and risk are major expenses. The report quantifies the amount and demonstrates the crucial need to act to minimize this exposure.
THE NUMBERS: For those in your organization that thrive on the quantifiable—you know, “if you can’t count it, it doesn’t exist—here are some data points for them. And these do not include PD coverage.
–AVERAGE MARGINAL COST OF INSURANCE PREMIUM: $.099 per mile or $3.99 per hour.
Think about it: Your insurance costs you ten cent for every mile you run. Four dollars for every hour your truck operates.
Consider that in relation to your rates. And your bottom line.
The bad news—in 2014 premiums were $.071/mile and $2.86/hour. That’s an increase of almost three cents per mile and almost $1.20/hour.
I became an attorney to avoid math, so check me. And I defer to the mathematically inclined to do the percentages.
These costs per mile vary per region of the country:
-Midwest: $0.083
-Northeast: $0.092
-Southeast: $0.104
-Southwest: $0.097
-West: $0.105
And LTL’s—average cost at $0.045/mile.
-INCREASE-2022-2023: Insurance premiums increased 12.5% in 2023 from the prior year. ATRI did the math, so it is correct.
The only item to increase more was tolls (21.4%). Wages “only” increased 7.6% and benefits only 2.7%.
Worse news—the “word” is that last year’s premium increase percentage will pale in comparison to this year. I’m hearing increases of 15%-25% this year.
-TOTAL COST OF RISK: Premiums are just the beginning. If you’ve read my articles or heard me talk, it is the Total Cost of Risk that matters.
More importantly, it was a key element of the ATRI study on Impact of Rising Insurance Costs on the Trucking Industry The Impact of Rising Insurance Costs on the Trucking Industry (truckingresearch.org)
“Total Cost of Risk”? Premium plus deductible/retention plus cost of risk reduction technology.
ATRI analyzed the first two—premium plus the out-of-pocket deductible/retention amount. The overall industry average out-of-pocket expense per mile was $0.036 in 2023 (or $1.44 per hour). That would make a total (premiums + out-of-pocket expenses) of $0.135 per mile or $5.43 per hour.
What it found per the combined premium plus out-of-pocket expenses based on fleet size, was as follows:
-Less than 5 trucks: $0.175/mile
-5-25 trucks: $0.204/mile
-26-100 trucks: $0.171/mile
-101-250 trucks: $0.136/mile
-251-1,000 trucks: $0.132/mile
-More than 1,000: $0.110/mile
ACTION: Inactivity is not an option. You must attack the problem as you would other costs. You’ve read and heard me before:
-Proactively prepare to avoid exposure—avoid “Death by Dogma”;
-Attack the “Dark Period” when billboard attorneys gin up damages;
-Respond immediately—prepare today for accident response
-Litigate aggressively and be prepared to go to trial.
BOTTOM LINE: It’s the bottom line. A bottom line impacted by insurance premiums and out-of-pocket payments. Further proof that safety is not an expense as much as an investment.
BT Staff
Users registered with the Federal Motor Carrier Safety Administration are the target of a new phishing campaign that urges them to complete a form attached to the fake email, according to an alert from the agency.
The forms ask for a social security number and USDOT PIN, information that isn’t required on official FMCSA forms. Carriers should not fill out forms attached to the fake email and always refer to official FMCSA forms for the latest and official documents, the agency warned. In some cases, the phishing attempt also asks for a certificate of insurance and driver’s license to help protect the recipient against fraud.
There also is a threat that if the recipient doesn’t respond within a day, they will be fined, which is not an FMCSA practice.
The fake email originates from either safety@fmcsa.gov, filing@fmcsa.gov, dotfilings@fmcsa.gov or audit@fmcsa.gov, none of which are legitimate email addresses and are not used or owned by FMCSA. If the recipient replies to the email, their message goes to @fmcsa-safety-fmcsa.com, which is also not a domain owned or used by FMCSA. Not only is some of this information personal identifiable information, but this information also would allow the unauthorized party to gain access to the recipient’s FMCSA account.
“The fake email containing the phishing link appears very convincing that the correspondence is from FMCSA,” the agency stated in a release.
Screenshots of the fake email can be found on FMCSA’s website.
Communications from FMCSA relating to information requests of this type would either request individuals to log into their portal account at FMCSA Login (dot.gov), or the email would come directly from an FMCSA dedicated mailbox. While these emails typically end in “.gov,” FMCSA encourages stakeholders and customers to verify any email or communication they feel to be suspicious with the appropriate agency.
What individuals can do:
Scott Rea
You know the old saying: “You can’t manage what you don’t measure?”
As a Safety Director tasked with overseeing recruiting, compliance, and safety efforts in your company, you must use metrics to avoid wasting time and money, keep auditors and plaintiff’s attorneys out of your hair, and make sure all your drivers make it home to their families for dinner.
With so much data at your fingertips, it can be difficult to know where to start when it comes to metrics. To keep it simple, we recommend Safety Directors focus on The Core 4.
The Core 4 Metrics for Safety Directors
1: Cost Per Hire
What is it? A hire is someone who made it through the application process, showed up for their first day of work or training, and is actively on payroll. Cost per hire is the amount of money it costs your business to hire one new employee.
The simple way to calculate cost per hire is: Ad Spend / Hires = Advertising Cost Per Hire.
An even more accurate metric is All-In Cost Per Hire, which takes into account the cost of:
All salaries involved in recruiting, screening, and onboarding
MVRs, PSPs, background checks, drug screens, and any other screening tools you use
Advertising
It looks like this: Salaries + Screening Costs + Ad Spend = All-In Cost Per Hire.
Why is it important? This is the ultimate recruiting metric because it tells you how effective and efficient you are at bringing new drivers into your company. It’s a pretty simple concept: Spend the least amount possible to hit your hiring goals. Tracking cost per hire helps you measure your recruitment effectiveness and determine where to spend your dollars.
How do you track it? Advertising Cost Per Hire: Enter your ad spend by source in A-Suite each month, and it will calculate Cost Per Hire for you. It’s so important that A-Suite will email it to you each month.
How can you improve it? The first step is proper messaging. The second step is being efficient with your leads, auto-rejecting unqualified candidates, and speeding up the hiring process — see days to hire, below.
What’s the benchmark? A finger-to-the-wind benchmark for advertising cost per hire is $750, but your mileage may vary depending on the competitiveness of your market. The goal is always to drive it as low as possible. That’s why it’s so important to begin measuring it for yourself.
2: Lead-to-Hire Conversion Rate
What is it? At AvatarFleet, we consider a lead to be a candidate who submitted an initial interest form on your candidate landing page or from an external source like Indeed or Facebook. The lead-to-hire conversion rate is: Number of Hires / Number of Leads, expressed as a percentage.
Why is it important? Drivers are a revenue center for your company. The more folks you have to choose from, the better chances you have of hitting your targets. A healthy lead flow means you’re able to stay staffed up. A good lead-to-hire conversion rate means you’re attracting the right candidates and onboarding them effectively.
How can you improve it? While lead volume is important, we’re all about quality over quantity because your time is money. That’s where the conversion rate comes into play.
What’s the benchmark? Benchmark figures vary depending on your niche, location, and other factors. In terms of lead volume, around 20 leads per seat is a good rule of thumb. A baseline for the lead-to-hire conversion rate is roughly 5%. Compare your lead-to-hire percentage by source so you can monitor which advertising channels perform well for you and allocate your budget accordingly. While important, this metric is secondary to Cost Per Hire.
3: Days to Hire
What is it? Days to hire is the number of days it takes your company to hire someone after they’ve applied for the position.
Why is it important? Days to hire is important to track because speed is a major predictor of your recruiting success. A lengthy hiring process has several downsides. Drivers are judging you during the recruiting process; a long and archaic process represents what their experience will be when they join you. A slow and clunky process increases the number of candidates that ghost you. Then there are the hard costs of taking more than 30 days. You will have to run additional background checks and Motor Vehicle Records requests, and you’ll have one more month of employment verification.
How can you improve it? See where the log jam is in the hiring process, figure out what is slowing down that section of the hiring process and address the cause.
What’s the benchmark? Less than two weeks to go from lead to behind-the-wheel. Your goal should be to hire drivers as quickly as possible. There’s no reason days to hire can’t be 14 days or fewer. While candidates’ schedules don’t always align with road test schedules, if you’re measuring this in months, you’re doing something wrong.
4: Drivers in Compliance
What is it? Drivers in compliance look at whether drivers who have compliance rules assigned to them have any violations.
Why is it important? You just have to be 100% compliant. Period. As a Safety Director, you should think about how this will look if you have to go to deposition. Do you really want to stare down an attorney named “The Hammer” and tell him that you’re a safe operator even though you don’t follow federal regulations or your own safety policy?
How can you improve it? Compliance is a perfect task to automate because it’s repetitive and well-defined.
What’s the benchmark? When it comes to compliance, you must be at 100%.
Metrics Recap
We know you didn’t get into the transportation industry to crunch numbers. But as we said at the start of this article, you can’t manage what you can’t measure. Staying focused on The Core 4 will simplify your job because you’ll know what to put on the top of your to-do list. Everyone needs a number!
Tyson Fisher
While most people are talking about the U.S. Supreme Court’s presidential immunity decision, the high court’s latest term included two decisions that have stripped a significant amount of power from federal agencies, dramatically reshaping the regulatory landscape.
Those two decisions were the Loper Bright Enterprises v. Raimondo and Corner Post v. Board of Governors of the Federal Reserve System cases. Loper Bright reversed 40 years of precedent – established by something called the Chevron doctrine – that gave federal agencies the power to interpret laws. Corner Post redefined a narrow six-year window to challenge federal regulations.
Individually and taken together, the Supreme Court’s rulings on the two cases have the potential to open the floodgates to new challenges to regulations that have already gone through the judicial wringer and came out victorious.
Before going into the implications of the Supreme Court’s decisions, let’s take a look at each case.
Loper Bright and the Chevron doctrine
Perhaps one of the most consequential Supreme Court decisions during the latest term came from the Loper Bright case, which erased how certain laws have been interpreted for decades.
At the center of the Loper Bright case was the Chevron doctrine. Since 1984, that precedent gave federal agencies the power to interpret ambiguous laws granting them the authority to enact regulations.
Not all regulations are the result of a detailed directive from Congress. In some cases, federal agencies enact regulations based on their interpretation of the controlling law that gives them the authority to do so. The Chevron doctrine established a two-step guide for federal courts to follow in these cases:
- Determine if Congress directly addressed the issue at hand, and if so, whether the statute was ambiguous. If the intent is clear, the matter is resolved accordingly. If the intent is ambiguous, then go to Step 2.
- Determine if the agency’s interpretation is permissible, i.e. rational or reasonable. If so, the court must defer to the agency’s interpretation.
In 2014, the Supreme Court upheld the Environmental Protection Agency’s regulation dealing with air pollution that crosses state lines. Although Congress never explicitly directed the EPA to address such pollution, the agency interpreted broad language within the Clean Air Act to include it. Relying on the Chevron doctrine, the high court agreed and deferred to the EPA’s interpretation of the law. Consequently, the merits of the arguments against the regulation were never heard.
Now that the Chevron doctrine has been erased, challenges to federal regulations that center on vague statutes will be decided by judges, not agencies.
A district court judge can now determine if an ambiguous law gives an agency the authority to enact a regulation.
Those who supported the Chevron doctrine claimed that agencies are the experts best equipped to decide what Congress intended. For example, the EPA hires and consults with people and entities who have expert knowledge of environmental issues. Therefore, the EPA, not some random judge, can better determine why a regulation aligns with Congress’ intent.
Additionally, the pro-Chevron voices argued that Congress sometimes writes laws that are intentionally vague. It is impossible to predict the future. Consequently, agencies are given broad authority to address certain issues and to fill in the blanks as new information develops.
On the other hand, opponents argued that federal agencies are politically motivated – i.e. the interpretations of a Democrat-led EPA will vary greatly from those of a Republican-led EPA. To mitigate this problem, impartial judges should settle regulatory disputes that are a matter of law interpretation.
Corner Post and statute of limitations
Previously, anyone harmed by a regulation had six years from when the regulation was published to challenge it. Not anymore.
According to federal law, certain challenges to federal regulations had to be “filed within six years after the right of action first accrues.” For decades, courts have interpreted this to mean the clock starts when a regulation is enacted. Plaintiffs in the Corner Post case argued it should start when a business first suffers harm from the regulation, regardless of when that occurs.
The case stemmed from a challenge to a 2011 federal regulation governing debit card swipe fees charged to merchants. Based on the statute of limitations, any challenge to that regulation had to occur before 2017. However, Corner Post, a truck stop, did not open for business until 2018. The company challenged the debit card fee regulation in 2021, arguing that the six-year clock started when it was first harmed by the rule, not when it was published.
Advocates supporting the clock starting at the time of enactment argued this gives businesses, industries and society as a whole a level of finality and certainty. By having a clear endpoint, affected parties of a regulation will know to adjust accordingly. Without a clear deadline, the certainty required for businesses to plan for the future goes out the window.
Opponents argued that the narrow time limit deprives new entities of their day in court. Furthermore, someone may not realize harm from a regulation until long after it was enacted.
The Supreme Court sided with Corner Post. Consequently, certain challenges to federal regulations now can be filed virtually whenever.
Effects of Supreme Court decisions
The above Supreme Court rulings sent shockwaves through the legal and regulatory communities, setting the stage for a “tsunami of lawsuits against agencies.”
Here is what the rulings will not do: automatically undo any regulations.
During a House Oversight Committee hearing on Wednesday, July 10, Rep. Lauren Boebert, R-Colo., grilled EPA Administrator Michael Regan about regulations passed under the Chevron doctrine. She erroneously claimed the recent Supreme Court ruling deemed those rules unconstitutional and that they therefore should be repealed.
Wrong.
However, the Supreme Court has opened the door for challenges of regulations to be resurrected. When those challenges are filed, the court will no longer automatically defer to the agency’s interpretation. Rather, a federal judge will decide if a law authorizes the regulation in question based on a litany of factors, which may include an agency’s interpretation.
Simply put: Regulations that have successfully passed the Chevron hurdle can be challenged again. This may or may not result in a different outcome. Results likely will vary. In the meantime, all existing Chevron-approved regulations are considered constitutional until a federal judge rules otherwise. Chief Justice John Roberts explicitly stated that in the majority opinion.
Due to the Corner Post decision, there could be a rush of challenges to regulations that previously were off-limits due to the six-year statute of limitations. In theory, anyone could start a business with the sole intent to start the clock on a challenge of an old rule. Again, this doesn’t guarantee a reversal, as courts may end up reaching the same conclusion – just through a different avenue.
The two Supreme Court decisions combined likely will overwhelm the federal district court dockets with fresh challenges to old rules.
Justice Ketanji Brown Jackson warned just that in her Corner Post dissent.
“At the end of a momentous term, this much is clear: The tsunami of lawsuits against agencies that the court’s holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the federal government,” Jackson wrote.
In the meantime, the Loper Bright decision may force Congress to write clearer laws. At the very least, federal agencies will need to be more careful in how they justify regulations.
In the short term, new challenges will arise. What the long-term implications will be is up in the air. Some rules may be overturned. Others may be affirmed.
The wheels of justice turn ever so slowly. It likely will be several years before the effects of the new regulatory landscape are realized.
Click on link below to see video.
https://youtu.be/_D5ZSV13U-E
(This is interesting, FMCSA stated when the ELD regulation was put into effect that CMV accidents would be reduced. This statement was not true, but FMCSA would like to include pre-2000 engines into the ELD requirements.)
