Guest Post (Jennifer Polovetsky): “Is Judicial Deference to Government Agency Decisions in Eminent Domain Cases at Risk?”

Since 1984, when the U.S. Supreme Court decided the Chevron U.S.A., v. Natural Resources Defense Council case, it has been well-settled law that the judiciary must defer to agency determinations in connection with the interpretation of a statute when the law was ambiguous or unclear (so long as the agency’s interpretation was reasonable and not arbitrary or capricious). See Chevron, 468 U.S. 837 (1984). The Chevron standard has been applied across the board in many legal cases since then.

On June 28, 2024, however, SCOTUS overruled Chevron in the consolidated cases of Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce, and held that Chevron was inconsistent with both the constitutional obligation of courts to say what the law is and with the Administrative Procedure Act. Loper Bright Enterprises v Raimondo, 144 S Ct 2244 [2024]. The Loper court held that the stare decisis factors did not support retaining Chevron, and SCOTUS further held that going forward, courts “must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”

What does Chevron being overruled mean with respect to the courts deferring to a government agency’s determination that an eminent domain property acquisition qualifies as a “public use”? See Chevron, 468 U.S. 837. Well, that remains to be seen. As of now, under the 2005 SCOTUS decision in Kelo v. City of New London, 545 U.S. 469 (2005), the law of the land remains the same: Courts must defer to the government’s determination that an eminent domain seizure of property satisfies the “public use” requirement of the Fifth Amendment takings clause. See U.S. Const. Amend. V. Specifically, SCOTUS held the following in Kelo:

“[T]his ‘court long ago rejected any literal requirement that condemned property be put into use for the ... public.’ Id., at 244. Rather, it has embraced the broader and more natural interpretation of public use as ‘public purpose.’ [Citations omitted.] Without exception, the court has defined that concept broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power.” Berman, 348 U. S. 26; Midkiff, 467 U. S. 229; Ruckelshaus v. Monsanto Co., 467 U. S. 986. Pp. 6–13. Kelo, 545 U.S. 469.

Now that the SCOTUS decision in Loper has essentially ended judicial deference to agency decisions, a new eminent domain challenge seeking a similar result may soon reach SCOTUS—straight from New York. See Loper Bright Enterprises v Raimondo, 144 S Ct 2244. The case, called Brinkmann v. Town of Southold, New York, 96...