The Supreme Court’s Most Important Environmental Law Decision in 35 Years

Posted on July 30, 2019 by Robert Brubaker

As our esteemed colleague John Cruden is fond of saying, administrative law is a subset of environmental law.  My vote for the most important Supreme Court environmental law decision in 35 years goes to the administrative law case (involving not environmental rules but the interpretation of a Department of Veterans Affairs rule) handed down on June 26, Kisor v. Wilkie.

I believe Kisor will prove to be the watershed case that that marks a consensus on shifting core principles of administrative law for decades to come.  To me, it continues what I saw as Justice Scalia's project to reform reflexive deference to agency “interpretations” (with the GHG Tailoring Rule case, UARG v. EPA, being a notable milestone, and probably also the thinking behind his final vote, on the extraordinary Clean Power Plan stay).  What are the odds that Auer v. Robbins is the unnamed case that Justice Thomas was referring to in his humorous anecdote at former Justice Scalia’s memorial about “Nino’s” outrage at “one of the worst ever” decisions of the Court (that Nino wrote)?   

Kisor goes a long way toward fulfilling Justice Kennedy's 2018 recommendation in his final opinion (Pereira v. Sessions) to reconsider "the premises that underlie Chevron and how courts have implemented that decision."  And, it further cements Justice Kagan's observation, in her 2015 Scalia Lecture at Harvard that "we're all textualists now."  It clearly articulates and shines a bright and permanent light on the concern about administrative agencies pushing too far at times in combining the power to make, interpret, change, administer, and enforce binding law, with too little independent judicial oversight.

The four separate opinions in Kisor distinguish judicial review of agency interpretations of their own rules (Auer deference) from agency interpretations of statutes (Chevron deference), but there are some inevitable parallels.  Kisor establishes a three-step analysis for agency interpretations of its own rules: 1) is the rule genuinely ambiguous? 2) if so, is the agency’s interpretation of the genuine ambiguity reasonable? and 3) even if an agency interpretation of a genuine ambiguity is reasonable, is it of a “character and context” that justifies deference?  Step 1 is strikingly similar to the pre-Chevron deference analysis under Skidmore (acceptance of an agency’s interpretation is commensurate with its “persuasive power”).  As Justice Kagan put it: “serious application of these tools [of construction, such as text, structure, history] therefore has use when a regulation turns out to be truly ambiguous.  The text, structure, history and so forth at least establish the outer bounds of permissible interpretation.”  Steps two and three of the Kisor framework add specificity and rigor to the judicial inquiry not spelled out in Skidmore.  Importantly, Kisor casts a highly skeptical eye on agency interpretations that circumvent appropriate procedural safeguards, or veer outside the lane of the agency’s expertise, or conflict with a prior agency construction.

It is significant that Kisor is authored by Justice Kagan, and joined by Justices Ginsburg, Breyer (noted for his command of administrative law), and Sotomayor, and joined in part by Chief Justice Roberts.  This is not a majority that can be characterized as anti-administrative state or as sponsors of a partisan Republican or conservative agenda.  Chief Justice Roberts wrote a short concurring opinion, expressing his view that the “distance between the majority and Justice Gorsuch is not as great as it may initially appear” because the majority’s catalog of the “prerequisites for, and limitations on” Auer deference has much in common with Justice Gorsuch’s list of the reasons that a court might be persuaded to adopt an agency’s interpretation.  Justice Gorsuch wrote a 42-page concurring opinion, joined by Justice Thomas and in parts by Justices Kavanaugh and Alito, touring the history of the Court’s deference jurisprudence and expressing a preference for overruling Auer and reverting to Skidmore deference.  Justice Kavanaugh wrote a concurring opinion, joined by Justice Alito, opining that “rigorously applying footnote 9” in Chevron (exhorting courts to “exhaust all the ‘traditional tools’ of construction” before concluding that an agency rule is ambiguous) should lead “in most cases to the same destination” as Justice Kagan’s majority opinion and eliminate any basis “to put a thumb on the scale in favor an agency” interpretation.

The boundaries on administrative powers and discretion are placed by Kisor in the hands of the judiciary, with paramount responsibility to judge conscientiously based on a searching and independent inquiry into the relevant legal and factual circumstances involved, and not based on some dogmatic, oversimplified, or wooden formula.  Deference cabined by a diligent judiciary is better than deference too readily or haphazardly granted or denied.  Justice Kagan's detailed instructions ("we mean it" she wrote) to judges handling administrative interpretation cases may well do more good for the opponents of Auer deference than an outright overruling of Auer.  If the Auer precedent had been overruled, instead of being "restated" and "somewhat expanded on," there would be more uncertainty and inconsistency, over a longer period of time, about exactly what replaces Auer deference.  The implicit call to legislators and administrators to pay better attention to the text and clarity of the laws they write is constructive too.  Good work Justice Kagan.

Where Is Gundy v. United States?

Posted on May 30, 2019 by Lisa Heinzerling

In the first week of October, the justices heard argument in Gundy v. United States, in which a convicted sex offender argues that the Sex Offender Registration and Notification Act (SORNA) violates the nondelegation doctrine by giving the Attorney General untrammeled authority to decide whether the law's registration requirements, backed by criminal penalties, apply at all to offenders convicted before the statute was enacted. Gundy is the only case from the Court's October argument session left to be decided.

Around the time of the oral argument in Gundy, I heard several Court watchers predict that the case would be decided easily, and against Gundy, through a narrowing interpretation that would avoid any serious nondelegation issue. The government had argued that the Attorney General's discretion could be limited by finding that "the text and context" of SORNA convey an instruction to the Attorney General to "specify the applicability of SORNA's registration requirements to pre-Act offenders 'to the maximum extent he finds to be feasible.'" Such guidance from Congress would easily satisfy the Court's existing jurisprudence on nondelegation.

As time passes, however, this seemingly straightforward resolution of Gundy seems ever less probable. One problem for the government is that the limiting principle it asserted – "to the maximum extent he finds to be feasible" – does not appear in the statute. Conservative justices wedded to textualism may be hesitant to read into the statute a limitation the text does not identify.

Moreover, the justices have already passed up a chance to interpret SORNA narrowly to avoid the very challenge they now face. In 2013, in Reynolds v. United States, the Court found that SORNA's registration requirements did not apply to pre-Act offenders until the Attorney General said they did. Chief Justice Roberts, who at oral argument had asked counsel for the government whether delegating this degree of authority would create a nondelegation problem, joined Justice Breyer's majority opinion without comment. By interpreting SORNA to require action from the Attorney General before the law's registration requirements may apply to pre-Act offenders, the Court in Reynolds created the constitutional conflict it now confronts.

Another worrisome sign for the government is that four of the Court's current justices have in recent years expressed constitutional anxieties about Congress's broad delegations of power to administrative agencies. Gundy may give them the chance to revive or even expand a constitutional doctrine that has not been used to invalidate a federal statute since 1935.

If the Court invalidates SORNA as an unconstitutional delegation of legislative authority, the consequences could be gigantic. A reawakened nondelegation doctrine could run like a scythe through the scores of statutes – including, of course, environmental statutes – that grant broad authority to administrative agencies. Operating that destructive instrument would be the least politically accountable of all the branches of government.

The Court could try to limit a decision invalidating SORNA, based on such factors as the criminal context; the worrisome power of the Attorney General as both prosecutor and quasi-legislator; and the backward-looking nature of the application of registration requirements to pre-Act offenders. Even a limited invalidation, however, would mark a significant turning point in administrative law, with destabilizing consequences for federal environmental programs. The longer we wait for the Court's decision, the more likely it is that the justices are grappling with the most fundamental questions raised by this case.

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NOTE: A version of this post was published by ACSblog in September 2018.