On November 10, 2015, Assistant Attorney General John C. Cruden spoke at the D.C. Bar’s Administrative Law and Agency Practice Committee’s Harold Leventhal Lecture on the enduring nature of the Chevron Doctrine. See Remarks. Assistant Attorney General Cruden’s remarks are timely, as his main focus was on the use of Chevron deference from an environmental perspective. The remarks centered on the Supreme Court’s use of the Chevron deference over the years and that this deference is not a “dead, dying, or threatened species.” Remarks p. 11. Yet, with litigation on recent EPA rules gaining steam, and the Supreme Court’s recent decision in Michigan v. EPA, it is timely to ask, not whether Chevron deference is dead, but whether Chevron deference is being reborn. 

In Chevron, U.S.A., Inc. v. NRDC, Inc., the Supreme Court set forth a two-pronged test for reviewing how an administrative agency interprets a statute enacted by Congress. The Court opined:

When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.

Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S 837, 842-43 (1984). After the Court’s decision in Chevron, Chevron deference became the linchpin of administrative law, and as Assistant Attorney General Cruden notes in his remarks, “[E]very current Supreme Court Justice has applied Chevron at some point to justify their decision.” Remarks p. 10. While Assistant Attorney General Cruden is likely correct that Chevron deference will continue to endure within our judicial system, recent precedent suggests that the Court is reevaluating just how far it is willing to allow a deference argument by an administrative agency to go.

The Supreme Court’s recent decision in Michigan v. EPA has received attention from the environmental law community due to the Court’s tongue-lashing of the EPA for its assertion that the Clean Air Act did not require the EPA to consider cost while developing the final MATS rule. The majority opinion, written by Justice Scalia, held that “EPA strayed far beyond those bounds [of reasonable interpretation] when it read § 7412(n)(1) [of the Clean Air Act] to mean that it could ignore cost when deciding whether to regulate power plants.” Michigan, et al. v. Environmental Protection Agency, et al., 135 S.Ct. 2699, 2707 (2015). In regards to Chevron deference, the majority opined that Chevron deference “allows agencies to choose among competing reasonable interpretations of a statute; it does not license interpretative gerrymanders under which an agency keeps parts of statutory context it likes while throwing away parts it does not.” Id. at 2708. Justice Thomas’ concurrence further foreshadows the potential for future reprimand of the EPA for advancing its policy positions instead of interpreting the statutory intentions of Congress. He stated, “What EPA claims for itself here is not the power to make political judgments in implementing Congress’ policies, nor even the power to make tradeoffs between competing policy goals set by Congress . . . . It is the power to decide – without any particular fidelity to the text – which policy goals EPA wishes to pursue.” Id. at 2713. This appears to be a very pointed, powerful, statement to EPA and other administrative agencies that the Court is looking to enforce the true use of Chevron deference, and not to allow this deference to become an escape mechanism by which the EPA can create and advance its own policies under the guise of statutory interpretation.

While Assistant Attorney General Cruden’s remarks on Chevron deference are timely, as litigation surrounding EPA’s Clean Power Plan and waters of the United States rules ramp up, it is not the death of Chevron deference that is on the horizon, but the potential rebirth of Chevron deference, as the Supreme Court appears armed to distinguish between an agency’s true statutory interpretation and an agency’s attempt to advance its own policies outside the bounds of Congress’ statutory intentions, that we should be watching within the coming months.