Who You Gonna Call? Ghostbusters and the Chevron Decision

Chevron deference could have killed NYC, particularly in the world of Ghostbusters

As you commence your Halloween celebrations, there is a better than zero chance you may watch one of the greatest films of all time. With a brilliant cast and flawless execution, “Ghostbusters” debuted 40 years ago, telling the story of a group of self-serving academics forced to produce “results” in the private sector, showing the power of incentives to change human behavior. It remains a classic to this day. The same year the film was released, a court decision was made that could have jeopardized the very existence of our fictional ghost exterminators.

The film begins with a brief monologue stating their predicament, as they are being tossed out of the university for dubious behavior and performance.

Dr. Raymond Stantz: Personally, I liked the university. They gave us money and facilities, we didn't have to produce anything! You've never been out of college! You don't know what it's like out there! I've WORKED in the private sector. They expect *results*.

Our wily group of reluctant entrepreneurs wind up solving a major, burgeoning problem in NYC. Fortunately for both them and their fellow New Yorkers, their recent technological and business developments in grappling with the paranormal have coincided with a rise in the supernatural residents of the city. Talk about timing!

Their business grows as the threat of ghosts increases. Being good at what they do and being the only ones with the know-how, they provide tremendous value to the denizens of NYC. But let no good deed go unpunished. Enter the bureaucrat. Walter Peck of the EPA is dropping in to investigate what is happening in his territory. The businessmen have no time of day to offer Peck. Once spurned, he returns with greater force to exact his will. With a subpoena, police, and a serviceman from ConEd, they shut down the ghost containment vault and release the ghouls back into the city’s atmosphere.

As this is happening, our EPA agent is furious, demanding the police assist him in retribution against the Ghostbusters.

Walter Peck: Hold it! I want this man arrested! Captain, these men are in criminal violation of the Environmental Protection Act! And this explosion is a direct result of it!

The explosion of course being a direct result of his orders. And criminal violation of the act is by his interpretation.

What we witness next is basically “hell” breaking loose with NYC “headed for a disaster of biblical proportions.” Ghosts seem to be increasing in number like mogwai if they had been fed and watered after midnight.

Fortunately in the world of the film, in a grand display of genuine federalism and after listening to both sides and weighing their relative merits, the mayor overrides the federal bureaucrat. With consideration to his own incentives – in the words of Dr. Peter Venkman (Bill Murray) he “will have saved the lives of millions of registered voters” - the mayor decides to roll the dice and trust this outfit of high tech pest controllers over the relative ignorance of the bureaucratic EPA officer.

Now if this story occurred that same year later and in our real world USA, it would be clear who would call the shots. According to the Chevron deference, Peck of the EPA would be the decision maker on this one.

The Chevron deference comes from the 1984 case of Chevron USA v Natural Resources Defense Council. The Supreme Court unanimously concurred that the EPA must determine the regulatory position based on their interpretation of statute, in this case the Clean Air Act, if it can not be clearly parsed by the judge. Over the years this evolved to a near total acceptance of judicial deference to agency understanding, further fortifying the administrative state. And when judges have abdicated their responsibilities as final arbiters of the meaning of statute, the constant dilemma of “who watches the watchmen?” is only exacerbated.

Though this decision may have initially been intended to reduce the effects of activist judges and provide a greater continuity in the understanding of these bureaucratic rules, it radically failed in achieving this goal. Agency interpretations would flip flop with changes in the occupancy of the White House, making decision making on the part of businesses increasingly difficult.

Fortunately, the recent Supreme Court decision of Loper Bright Enterprises v. Raimondo has gone some distance to ameliorate this situation. Instead of deferring to a bureaucratic agency sometimes lacking in local knowledge or driven by their own political agenda, judges must not pass the buck and may rely on the expertise of private parties that are far more invested in understanding and solving the problems that they encounter on a regular basis, as well as agency opinion.

Of course, there are detractors of this recent decision. In a recent article published in “Sierra,” the magazine of the Sierra Club, it stated “(A)n analysis of more than 1,500 circuit court decisions between 2003 and 2013 found that courts applied Chevron in 77 percent of regulatory disputes, and that agencies won many more of cases than they did cases where courts did not use Chevron.” This is alleged to be an unbridled positive.

The article also quoted Justice Elena Kagan in her dissent, as she accused the “conservatives” of attempting to turn their court “into the country’s administrative czar.” But was not the purpose of the Supreme Court at least in part to provide a check on the other two branches? How can one perform judicial review without weighing in on the rules by which we must abide?

In “Ghostbusters,” Mayor Leonard "Lenny" Clotch is our placeholder for a judge deciding the best course forward, weighing what the agency has to say as well as the defendant. The theme song’s refrain of, “Who you gonna call?” brings out a resounding response of, not the government functionaries, but the businessmen. People don’t call the EPA, they call the Ghostbusters! Now judges will hopefully have the greater confidence to act like Lenny and decide in the best interest of justice, not merely accept an agency’s position.