Who Governs Infrastructure Now?

United States infrastructure policy is shaped by many actors, including legislators, administrative agencies, and courts. In 2024, the U.S. Supreme Court overturned “Chevron deference,” shifting authority from administrative agencies, such as the Environmental Protection Agency (EPA) and Federal Communications Commission (FCC), toward courts.

In 1984, the U.S. Supreme Court issued a landmark ruling in Chevron U.S.A., Inc. v. Natural Resources Defense Council. The Court ruled that the judiciary should defer to the EPA’s “reasonable” interpretation of ambiguities in the Clean Air Act. This impacted the construction of power plant infrastructure. The ruling established the legal doctrine of Chevron deference.

The ruling in Chevron established that courts should defer to relevant administrative agencies to interpret federal statutes if two requirements were met. Chevron was the most-cited precedent in administrative law in the four decades following the decision.

Courts conducted the “Chevron test” as follows: First, the court had to determine whether the statute was ambiguous. If it determined it was not, then the court and agency both had to operate as instructed in the statute by legislators. If there was ambiguity, then the court moved on to step two. The court would then consider if the agency’s interpretation was “reasonable.” If it deemed that it was, the court would defer to the agency. This is called “Chevron deference.”

This was controversial, because it allowed greater authority and impact by agencies than many believed was appropriate or envisioned within the constitutional framework. An agency could avoid checks and balances by issuing a rule and defining compliance with it, rather than a court checking/balancing the compliance. Critics contend this slowed certain infrastructure development and otherwise hamstrung private industry over primarily environmental rules.

In 2024, the Supreme Court overturned Chevron in Loper Bright Enterprises v. Raimondo. This case involved a lawsuit by fishing companies against the National Marine Fisheries Service (under the Department of Commerce, led by Gina Raimondo). They alleged that NMFS policy requiring them to cover inspection costs was not supported by the relevant law, the Magnuson-Stevens Fishery Conservation and Management Act. When a lower court granted Chevron deference to the NMFS, the companies challenged Chevron deference itself in an appeal to the Supreme Court.

The Court rejected Chevron deference, holding that courts should not defer their judgment to administrative agencies and instead make their own independent interpretations of the law. The Court ruled that the 1946 Administrative Procedure Act required that courts interpret statutes fully and independently, and that statutory ambiguity was not sufficient for deference. Courts now have restored authority to evaluate whether administrative agencies have operated within the bounds of statutes, checking their power.

While this ruling was a major shift, the Court expressly declined to invalidate previous rulings made using the precedent in Chevron. Furthermore, courts can still consider agency interpretations. The Court’s decision overrules Chevron in the sense that deference to agencies was rejected as a “universal” legal doctrine.

Some legal scholars, such as Notre Dame law professor Emily Bremer, have argued that the Loper Bright ruling was more of a symbolic measure by the Supreme Court and not a complete reversal of precedent. Chevron deference was a legal doctrine, not a law that granted agencies unlimited interpretive authority. Legal scholars have speculated that the Court was urging lower courts to utilize their constitutional judicial power more aggressively, as well as urging Congress to resolve known ambiguities in its laws.

Critics of the Loper Bright decision such as Sen. Elizabeth Warren (D-MA) have argued that the decision will benefit corporations at the expense of the American people. She proposed a bill to codify the principle of Chevron deference into law, empowering executive agencies. Republicans such as Sen. Mitch McConnell (R-KY) have praised the decision of the conservative-majority Court for reducing the regulatory state.

The new precedent in Loper Bright has already been utilized in deciding recent infrastructure cases, such as in Ohio Telecom Association v. FCC (2025). The FCC attempted to classify internet broadband providers as telecommunications services, mandating that they follow net neutrality. The FCC claimed they were enforcing the Communications Act of 1934 and the Telecommunications Act of 1996. However, the Sixth Circuit found that the statutes did not support the reclassification, nor did they specifically give the FCC the power to regulate net neutrality. The appeals court found that the FCC was overstepping its authority with its interpretation of the ambiguity and struck down the FCC policy. Under the Chevron precedent, the Sixth Circuit might have deferred to the FCC to interpret the ambiguity.

The United States continues to develop its modern infrastructure such as nuclear power plants, solar and wind farms, and AI data centers. The regulation of these industries is a hot-button issue. After the end of Chevron deference, Congress is incentivized to specify the powers of federal agencies through statutes that resolve existing ambiguities. If a gridlocked Congress cannot or chooses not to pass such laws, much infrastructure policy in these crucial fields could be decided by courts. These courts will interpret ambiguous laws and consider the arguments of agencies while not deferring to them.

Written by Vincent Stone, Public Policy Intern