Gardner: Judicial deference and the Clean Power Plan

By R. William Gardner

Gardner

In 1989, Justice Antonin Scalia was invited to give a lecture at the Duke University Law School entitled, “Judicial Deference to Administrative Interpretations of Law.” Never one to mince words, he began his speech by declaring, “Administrative law is not for sissies — so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture. There will be a quiz afterwards.” Well, this article at least omits the quiz.

Justice Scalia’s long and momentous career on the U.S. Supreme Court gave us innumerable important decisions (and scathing dissents) that have shaped the intersection of administrative and environmental law. He was appointed to the Supreme Court in 1986, just two terms after the court unanimously decided the seminal administrative law case Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). That case adopted a two-step analytical framework to address when an administrative agency’s interpretation of a statute was entitled to deference. Under step one, if congressional intent is clear from a statute, that ends the inquiry, and the court (and the agency) must give effect to that clear intent. Under step two, if a statute is ambiguous, the court must uphold an agency’s “permissible construction” of that statute.

Chevron and the EPA

Throughout the years, Justice Scalia found himself on both sides of the Chevron divide. In Massachusetts v. EPA, he dissented from the court’s decision that the U.S. Environmental Protection Agency was required to regulate greenhouse gases if they endangered public health or welfare, and he argued the majority should have deferred to EPA’s decision not to regulate greenhouse gases under Chevron’s step two. 549 U.S. 497, 558 (2007). In contrast, one legal commentator has noted, “There are only three cases in which the Supreme Court has ever held that [an agency’s] interpretation of an ambiguous statute was unreasonable, all three written by Scalia: Whitman v. American Trucking, [Utility Air Regulatory Group] v. EPA, and Michigan v. EPA. In all three cases, the ‘unreasonable’ agency was EPA.” Justice Scalia and Environmental Law, Legal Planet (Feb. 15, 2016).

Whether or not you agree with Justice Scalia’s opinions, they demonstrate that he — perhaps more than other members of the court — was willing to couch his decision-making within the Chevron framework even when it was inconvenient to do so because step two is such a deferential standard. Perhaps the greatest Chevron dodge in recent memory was Chief Justice John Roberts’ opinion in King v. Burwell, the Obamacare decision. 135 S. Ct. 2480 (2015). In that case, the court found Chevron was inapplicable to the IRS regulations under appeal because Chevron “is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps” and this was an “extraordinary case” where Congress had not “intended such an implicit delegation.” Id. at 2488–89 (2015) (citations and internal quotations omitted). Justice Scalia’s dissent, however, zeroed in on Chevron’s step one: “Statutory design and purpose matter only to the extent they help clarify an otherwise ambiguous provision. Could anyone maintain with a straight face that [the statute at issue] is unclear?” Id. at 2502 (Scalia, J., dissenting).

The Clean Power Plan post-Scalia

The next big battle over Chevron deference and environmental law in the Supreme Court is likely to be West Virginia v. EPA, the appeal by 27 states and countless industry groups of EPA’s controversial carbon emission reduction rule, called the “Clean Power Plan.” EPA has argued that Section 111(d) of the Clean Air Act unambiguously authorizes the agency to regulate carbon emissions, and that even if there is ambiguity, EPA’s interpretation of the statute is reasonable.

But on Feb. 9, the Supreme Court, joined by Justice Scalia, issued an order staying the Clean Power Plan before any decision on the merits had been made in the D.C. Circuit. In its brief opposing the stay, EPA had argued such an order was unprecedented and that the court had never “granted a stay of a generally-applicable regulation pending initial judicial review in the court of appeals.” The court did not say why it was granting the stay, but it was clearly a significant win for opponents of the regulation and a sign of how the court might ultimately rule.

Yet, Justice Scalia’s death just four days later may be a complete game-changer, not only for the ultimate fate of the president’s marquee environmental regulation, but also for the analytical framework the court uses to evaluate the Clean Power Plan’s legality. Chief Justice Roberts may find the Clean Power Plan’s impact on the nation’s energy infrastructure and the greater economy is another “extraordinary case” where Chevron is inapplicable. And Justice Clarence Thomas, as recently as 2015 in his concurrence in Michigan v. EPA, has called for the wholesale rejection of the “potentially unconstitutional delegations we have come to countenance in the name of Chevron deference.” 135 S.Ct. 2699, 2713 (2015) (Thomas, J., concurring).

Despite Justice Thomas’ protestations, it seems highly unlikely that Chevron is going away anytime soon, but the doctrine is re-evaluated with such frequency and in such important cases, as it will be with the Clean Power Plan, that what it looks like next term, let alone 10 or 20 terms from now is unclear. Grappling with Chevron was obviously important to the late Justice Scalia, so out of deference I will end with a quote to his final thought in that same Duke University speech:

“I tend to think, however, that in the long run Chevron will endure and be given its full scope — not so much because it represents a rule that is easier to follow and thus easier to predict (though that is true enough), but because it more accurately reflects the reality of government, and thus more adequately serves its needs.”•

• R. William Gardner is an attorney in Taft Stettinius & Hollister’s environmental practice group. He can be reached at [email protected]. The opinions expressed are those of the author.