Posted on March 22, 2017
In January, I argued that conservative opposition to the Chevron doctrine seemed inconsistent with conservative ideology and I noted, at a practical level, that opposition to Chevron does not always yield the results conservative want.
gray wolf, Canis lupus, Gary Kramer, USFWS
Earlier this month, the Court of Appeals for the District of Columbia provided more evidence supporting my thesis. The Court affirmed the decision of the Fish and Wildlife Service to delist the gray wolf as endangered in Wyoming, reversing a district court decision in so doing. Part of the case turned on whether the FWS service could approve Wyoming’s management plan, even though the plan relied on non-regulatory provisions. The Court of Appeals noted that the:
ESA provides no definition of “regulatory mechanisms,” and neither the district court nor appellees suggests why the Secretary’s interpretation is unreasonable.
Sounds like a case for Chevron deference to me – and it sounded that way to the Court as well. When the Court combined Chevron deference to agency interpretation of the statutory language with traditional arbitrary and capricious review regarding the FWS’s scientific judgment – another area where deference to the agency is obviously not a left-wing plot – affirmance of the FWS delisting decision was the result.
Maybe I’ll make this a regular feature of this blog. If I miss other cases making the conservative argument for Chevron, let me know.
Posted on March 13, 2017
Recently, our ACOEL colleague Bob Percival penned an article in which he notes that Supreme Court nominee Judge Neil Gorsuch is a leading critic of Chevron (and Auer) deference , and suggests that Judge Gorsuch’s separation of powers concerns (and those of other opponents of Chevron/Auer deference) “…are really attacks on the constitutionality of the larger administrative state.” But if Judge Gorsuch is confirmed and his views command a majority of the Court, is his skepticism about the viability of deference to agency interpretations likely to lead to a collapse of the modern administrative state? Is Judge Gorsuch really little more than a judicial extension of Steve Bannon’s and the Alt-Right’s campaign to deconstruct the administrative state and roll back the federal government to a size more appropriate to 19th Century America? I suspect not—and here’s why.
A reading of Judge Gorsuch’s opinions reveals a jurist who is not only an engaging writer, but who digs deep into the facts and details of each case before applying the law in an appeal before him. In one of the few environmental cases which Judge Gorsuch has authored, United States v. Magnesium Corp. of America, Judge Gorsuch duly applied Auer deference to uphold EPA’s interpretation of a RCRA regulation, observing that an agency’s interpretation of its own ambiguous regulation was entitled to deference.
But in other contexts, Judge Gorsuch denied Chevron deference to agency decisions that directly implicate (some might say trample upon) individual liberties and rights. Here’s an example: In 2014, the 10th Circuit took up the case of Andrew Yellowbear, who had bludgeoned to death his 22-month-old-daughter, and was serving a life term in a Wyoming prison. Mr. Yellowbear brought suit against the prison for refusing to allow him access to a sweat lodge to practice his Arapahoe religion, which he claimed violated his rights under the federal Religious Land Use and Institutionalized Persons Act of 2000. Now one might think that Judge Gorsuch, conservative fellow that he appears to be on criminal matters, would give short shrift to Mr. Yellowbear’s claims. But that is not what happened.
In Yellowbear v. Lampert, Judge Gorsuch, writing for a unanimous court, struck down the prison’s efforts (and arguments) to deny Mr. Yellowbear his religious practice. In rejecting the prison’s poorly documented claims of a “compelling governmental interest,” Judge Gorsuch wrote: “the deference this court must extend the experience and expertise of prison administrators does not extend so far that prison officials may declare a compelling governmental interest by fiat.”
Now that decision hardly seems to presage the dismantling of the administrative state, but does suggest the administrative state had better show it deserves deference.
Judge Gorsuch’s concurring opinion in Guitierrez-Brizuela v. Lynch offers a window into his views on the limits and shortcomings of Chevron deference. Among other things, Judge Gorsuch suggests that the Chevron/Auer doctrines already may have no applicability with respect to agency interpretations of criminal statutes—of which we have many in the environmental law field. Even more to the point, Judge Gorsuch questions how Chevron/Auer deference squares with the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. (“…the reviewing court shall decide all questions of law, interpret constitutional and statutory provisions and determine the meaning or applicability of the terms of an agency action.”). Judge Gorsuch questions whether Chevron, in effect, overrides the APA.
But don’t simply focus on Judge Gorsuch’s concurring opinion: look to the facts of the case, and to an earlier Gorsuch opinion. Guitierrez-Brizuela involved an attempt by the Board of Immigration Appeals (BIA) to retroactively apply a decision of the 10th Circuit deferring to BIA’s reconciliation of two statutory provisions of immigration law. In Padilla-Caldera v. Holder, the 10th Circuit had upheld BIA’s interpretation of the immigration law on Chevron deference grounds, notwithstanding that BIA’s interpretation effectively overruled an earlier 10th Circuit decision interpreting those same laws.
But in Guitierrez-Brizuela, BIA sought to accord retroactive application of the Padilla-Caldera decision in order to deport an illegal alien. Judge Gorsuch, writing for a unanimous 10th Circuit panel, concluded that the BIA cannot use Chevron deference principles to retroactively impose their interpretation of immigration law upon an illegal alien to deport him—not the kind of result which would endear Judge Gorsuch to the Alt-Right.
What resonates in Judge Gorsuch’s opinions is a reluctance to unconditionally embrace Chevron/Auer deference in order to allow administrative agencies to trample on individual liberties and rights. Is that such a bad thing? And Judge Gorsuch is not calling for an end to deference. He acknowledges that some form of deference should be given to administrative agencies, as he notes in Guitierrez-Brizuela: “Of course, courts could and would consult agency views and apply the agency’s interpretation when it accords with the best reading of a statute.”
But more fundamentally, will a reconsideration—and even a repudiation—of Chevron/Auer deference signal the end of the modern administrative state? The administrative state survived and grew comfortably for more than fifty years before Chevron was decided.
My guess is that, if the Supreme Court revisits the question of Chevron/Auer deference when (and if) Justice Gorsuch joins the Court, and if his views carry the day, we are likely to return to Skidmore deference, or to a flexible rule of deference of the kind outlined in United States v. Mead Corp, here the degree of deference varies according to an agency’s care, consistency, formality, expertness and the persuasiveness of the agency’s position.
That hardly signals the end of the administrative state as we know it.
Posted on August 4, 2016
This post started as a piece about a recent Fifth Circuit decision: Texas v. EPA. In that case, the state of Texas (and others) challenge EPA’s disapproval of Texas’s (and Oklahoma’s) plans for controlling regional haze and EPA’s decision to impose its own haze-control program instead. To make my drafting process more entertaining (and the task of posting more challenging for our official poster, Colin Gipson-Tansil), I set a goal for myself: to include within my post at least 25 valid links to others’ posts during the past year. Fortunately for me, there is almost nothing in Texas v. EPA that doesn’t link to one or more recent posts.
Jurisdiction and Venue. Many of the past year’s posts point out problems caused by the failure of the Clean Water Act to state unambiguously which federal court has jurisdiction to hear a specific challenge to an EPA action under that statute. Stoll’s 9/2/2015 post, Glick’s 10/9/2015 post, Horder’s 11/3/2015 post, Perdue’s 2/5/2016 post, and Uram’s 4/5/2016 post. Texas v. EPA demonstrates that choice-of-court problems also exist under the Clean Air Act’s judicial review provision, §307(b)(1).
Clean Air Act §307(b)(1) – said the Fifth Circuit – is a two-fold provision: first, it confers jurisdiction on the courts of appeals, and then it delineates whether the appropriate venue for challenges will be the regional circuits (if the challenged action is locally or regionally applicable) or the D.C. Circuit (if the action is nationally applicable). Believing EPA’s disapproval of its regional haze program to be locally or regionally applicable, Texas filed its challenge in the Fifth Circuit. EPA moved to dismiss or transfer the case to the D.C. Circuit based on a separate, not-as-well-known prong of §307(b)(1), which directs that a petition for review of what seems like a non-national action may be filed only in the D.C. Circuit if the action is “based on a determination of nationwide scope or effect and if in taking such action [EPA] finds and publishes that such action is based on such a determination.” After an exhaustive de novo evaluation of that portion of §307(b)(1), the Fifth Circuit determined that because the challenged EPA actions are locally or regionally applicable and because they are not based on any determinations that have nationwide scope or effect, the Fifth Circuit is the appropriate court to hear the case.
But wait. There are other link-worthy aspects of Texas v. EPA, including the following.
Explanations of Decisions to Stay Challenged Actions. During the past year, posts have discussed whether and how much a court needs to explain the basis on which it stays a challenged rule pending completion of litigation concerning that rule’s validity. Jaffe’s 2/10/2016 post, Gerrard’s 2/10/2016 post. If it is a lengthy explanation you seek for when and why a court should stay an EPA action pending completion of litigation, the Fifth Circuit provides that in Texas v. EPA.
Deference. Other recent posts have addressed when deference to an agency interpretation is – or is not – appropriate. Kovar (12/10/2015); Percival (1/27/2016); Field (2/11/2016); Haynes (2/19/2016); May (6/9/2016); Civins (7/5/2016); Jaffe (8/2/2016). In Texas, the Fifth Circuit put clear limits on deference, holding that the level of deference owed to an agency’s conclusions is “substantially diminished when the subject matter in question lies beyond the agency’s expertise.” Thus, while the Fifth Circuit was prepared to defer substantially to EPA’s views on environmental science, it declined to defer to EPA’s views on whether its actions would impair the reliability of the electricity grid. Since “EPA has no expertise on grid reliability” (that is FERC’s domain), the “deference owed to EPA’s assertions about grid reliability [is] diminished and the agency must support its arguments more thoroughly than in those areas in which it has considerable expertise and knowledge.”
That limitation on deference could have an impact on the most talked-about case by ACOEL members this past year: West Virginia v. EPA, in which more than two dozen states and many other parties challenge EPA’s Clean Power Plan. Jaffe’s 9/10/2015 post, Gerrard’s 2/10/2016 post, Jaffe’s 10/23/2015 post, Jaffe’s 12/9/2015 post, Percival’s 12/16/2015 post, Stoll’s 12/21/2015 post, Perdue’s 2/5/2016 post, Jaffe’s 2/10/2016 post, Field’s 2/11/2016 post, Session’s 2/17/2016 post, and Freeman’s 3/2/2016 post. The Fifth Circuit’s limit on deference is the basis of a recent Federal Rules of Appellate Procedure 28(j) letter sent to the D.C. Circuit by the petitioning states in West Virginia. According to those states, the Fifth Circuit’s decision in Texas v. EPA supports, among other things, the petitioning states’ argument that EPA has failed to show that the Clean Power Plan will not detrimentally affect grid reliability.
Perhaps the link in which I take the most pride, though, is this last link – to Seth Jaffe’s October 2, 2015 Brief Rant on Cost-Effectiveness Analysis. In that post, Seth argues that if the purpose of a rule is to improve visibility, EPA should use a measurement of visibility – a deciview (dv) – to assess visibility improvement. Well, in Texas v. EPA, the Fifth Circuit seemed to be heading in the direction of agreeing that in considering the cost of a regional haze program, EPA should use the $/dv metric. Alas, at the last minute, the court pulled back on a complete endorsement of the $/dv metric: because the petitioners had a “strong likelihood of establishing other flaws” in EPA’s actions, the court said it did not need to decide whether EPA “fell short of its obligation to consider the costs of its regulations” by failing to use $/dv metrics. So, Seth may have to wait a while longer before seeing a court mandate for EPA’s use of $/dv metrics to evaluate visibility improvements. I, however, achieved my goal of including a record number of links in this post.
Posted on August 27, 2012
In split decisions over a two-week period on entirely different Clean Air Act issues, three different Circuits refused to give deference to EPA interpretations.
The merits of the three decisions – concerning the latitude States have in designing "minor" new source permitting programs approvable in their State Implementation Plans, the attributes that make a source "major" for Clean Air Act permitting purposes, and the limits on EPA's authority to manage emissions transported from one State to another – are far reaching and significant on many levels. One interesting common thread underlying the merits is how the three different Circuits approached the doctrine of deference.
In Texas v. EPA, No. 10-60614 (5th Cir., Aug. 13, 2012), the Fifth Circuit vacated EPA's disapproval of a State Implementation Plan revision Texas submitted to make its Minor New Source Review rules more flexible (by using a "bubble" concept for reducing the types of minor changes needing separate preconstruction permits). The Court dismissed EPA's position that the Texas rules conflicted with EPA's policy against State Implementation Plan provisions that allow "director discretion." The majority concluded "[t]here is, in fact, no independent and authoritative standard in the CAA or its implementing regulations requiring that a state director's discretion be cabined in the way that the EPA suggests" and "[t]therefore, the EPA's insistence on some undefined limit on a director's discretion is . . . based on a standard that the CAA does not empower EPA to enforce."
In Summit Petroleum Corp. v. U.S. EPA, Nos. 09-4348 and 10-4572 (6th Cir., Aug. 7, 2012), the Sixth Circuit vacated EPA's determination that, because they are "functionally related," natural gas production wells are "adjacent" to the gas processing plant to which the output of the wells is pipelined. The practical consequence is that if the wells and the plant are "adjacent," their potential emissions would be aggregated and would exceed the threshold level requiring a Title V permit, whereas if they are not "adjacent," they would be separately subject to less onerous "minor" source permitting requirements. The Court relied upon the dictionary definition, etymology, and case law on the meaning of "adjacent" to conclude that "adjacency is purely physical and geographical." The Court wrote "we apply no deference in our review of EPA's interpretation of ['adjacent']" since the word is "unambiguous," and "we hold that the EPA has interpreted its own regulatory term in a manner unreasonably inconsistent with its plain meaning . . .."
In EME Homer City Generation v. EPA, No. 11-1302 (D.C. Cir., August 21, 2012), the D.C. Circuit vacated EPA's Cross-State Air Pollution Rule (CSAPR), also known as the Transport Rule, requiring 28 States to curtail sulfur dioxide and nitrogen oxide emissions from one State deemed by EPA to "contribute significantly to nonattainment" of National Ambient Air Quality Standards for ozone or fine particulate matter in another State, or to "interfere with maintenance" of such standards in another State. The Court held that the way in which EPA quantified allowable emissions from the various States exceeded the Agency's statutory authority, and that EPA's preemptive implementation of State Implementation Plan requirements was "incompatible with the basic text and structure of the Clean Air Act" and contrary to the "first-implementer role" reserved for the States by the Act. The Court concluded that EPA's interpretation of the "good neighbor" provision – one of more than 20 State Implementation Plan requirements in Section 110(a)(2) of the Act – offended the principle that Congress does not "hide elephants in mouseholes" (citing the Supreme Court's 2001 decision in Whitman v. American Trucking Ass'ns). EPA's interpretation of its authority to promulgate Federal Implementation Plans before giving the States an opportunity to submit State Implementation Plans after EPA determined the level of "good neighbor" emission reductions required was rejected on both step 1 and step 2 Chevron grounds.
Three swallows do not a summer make, but if Courts continue to delve more deeply into the merits of EPA decisionmaking under the Clean Air Act and similar statutes in this era of Congressional gridlock, the consequences could be profound for supporters and opponents of EPA actions.