In early June, in Boca Chica, Texas, the shuttle Starshipfrom Elon Musk’s space exploration company SpaceX, was taking off for the fourth time — a test presented as a remarkable advancement for civilian space exploration. A mission of primary necessity given the current state of the world, no doubt.
A few hours after the test, reported the New York Times Earlier this month, U.S. Fish and Wildlife Service personnel were busy mopping up the damage around the area. Rock debris and dust, scorched earth, chemical spills—all the damage left behind on land that’s also home to many fragile and endangered species. Who would have thought that launching the largest space shuttle ever built wouldn’t be a welcome change for the neighborhood and the ecosystems?
SpaceX’s experiments have put the US agencies responsible for aviation and wildlife — the Federal Aviation Administration (FAA) and the Fish and Wildlife Service — under fire. In December 2023, environmental groups filed a lawsuit against the two agencies under the National Environmental Policy Act (NEPA), the major law governing environmental protection in the United States, claiming that they failed to conduct a full review of the environmental impacts of SpaceX’s activities before giving the green light. The successive authorizations given to Elon Musk’s company to use the land designated for its launches as so many “sacrificial zones” are being challenged.
Of course, there were other observers who complained that the agencies had been too intrusive in SpaceX’s launch preparations. In this regard, Texas Republican Senator Ted Cruz complained during Senate Commerce Committee hearings last December that the FAA and the Fish and Wildlife Service had only thrown obstacles in SpaceX’s way and had unduly complicated the process.
Hatred of the administrative state is a favourite theme of conservative political forces – which have just won a considerable victory in this area.
I mentioned this to you recently, while examining the series of spectacular decisions signed by the Supreme Court of the United States just before its summer recess. Rendered in the wake of this, Loper Bright v. Raimondoa decision of administrative law that is not sexy for the headlines, had the effect of an earthquake on the judicial system and the administrative apparatus.
This decision invalidates the judgment Chevronwhich, since the 1980s, gave regulatory agencies the prerogative to interpret the provisions of the laws they enforce. To put it briefly, with Chevronthe courts had established that when there was a vagueness, a contradictory interpretation, that provided by the agencies themselves took precedence. The reason? The agencies have expertise that the courts do not have, in the regulatory field that concerns them.
Dramatic turn of events: the Court affirmed in Loper that it is in fact up to judges to decide on conflicts of interpretation. Justice Clarence Thomas thus writes pompously that the interpretation of laws constitutes after all “the particular province” of the courts. Loper still admits certain exceptions, notably in situations where legislators have taken care to include in the law that the task of interpretation falls to the agency concerned – something which the text of the decision does not necessarily view favorably.
This is a real earthquake for institutions. In her dissent, Justice Elena Kagan stressed the importance of Chevron within the judicial system: ” [Chevron] has been applied in thousands of court decisions. It has become a pillar of modern government, supporting regulatory efforts of all types—to name a few, keeping air and water clean, food and medicine safe, and financial markets honest.”
Regulatory agencies, which apparently did not exercise excessive control over even the most extravagant and superfluous activities – such as the launch of a narcissistic billionaire’s civilian rocket – have thus lost considerable power to act.
In the wake of LoperStanford University environmental law professor Deborah Sivas pointed out that this weakening of the power of regulatory agencies could help temper the influence of lobbyists and the business sector on some agencies closely linked to economic development. The U.S. Forest Service or the Bureau of Land Management, for example, which are now controlled by extractive companies. These agencies, she added, frequently used Chevron to influence the regulatory framework in favor of the industry. There is undoubtedly a bit of this in the ease with which Elon Musk was able to launch his rocket.
Except that with Loperthe reverse is also true: disgruntled businesses, or any other interest group (religious, for example), will now enjoy an expanded opportunity to challenge the limits imposed on them — even when it comes to protecting the public or the environment. This concerns us too, especially in environmental matters. Air pollution, greenhouse gas emissions, the large-scale consequences of ecosystem degradation, all of this does not stop at the border. This does not bode well for the future.