Notice & Comment

D.C. Circuit Review – Reviewed: More Chevron Waiver (Part Two)

Last year, I wrote a post called “More Chevron Waiver.” My point was that although the D.C. Circuit has held that “an agency’s lawyers cannot forfeit the applicability of Chevron deference unless the underlying agency action fails to manifests its engagement in the kind of interpretive exercise to which review under Chevron generally applies,” the Supreme Court (per Justice Breyer) in County of Maui v. Hawaii Wildlife Fund applied Skidmore deference where “[n]either the Solicitor General nor any party has asked us to give what the Court has referred to as Chevron deference to EPA’s interpretation of the statute.” Since then, however, the D.C. Circuit has reaffirmed that “our decisions hold that Chevron deference is not subject to forfeiture based on an agency’s litigation conduct.”

Well, the Supreme Court today again suggested that Chevron deference can be waived/forfeited. As Jonathan Adler observes, in HollyFrontier Cheyenne Refining v. Renewable Fuels Association, Justice Gorsuch — joined by the Chief Justice and Justices Thomas, Breyer, Alito, and Kavanaugh — also casts some doubt on the D.C. Circuit’s rule: “With the recent change in administrations, ‘the government is not invoking Chevron.’ Brief for Federal Respondent 46–47. We therefore decline to consider whether any deference might be due its regulation.” As Adler explains:

While not part of the Court’s holding, this passage seems to indicate that a clear majority of the Court is on board with the idea that the federal government may waive Chevron deference. That is, in order for an agency to receive such deference, not only must it satisfy the various requirements suggested by Mead and related cases, but the government must also seek such deference from the courts. That the government relied upon Chevron deference below and that other litigants seek to have the Court consider Chevron is not enough.

We’ll see what happens next. For now, if you want to get up to speed on the issue, here is a link to much of the relevant scholarship; here and here are also thoughts from the formidable Kristin Hickman.

For what it is worth, I also have a new article in the Penn Law Review that touches on Chevron waiver. As I explain in The Minor Questions Doctrine, deference sometimes may create a collective-action problem, especially for “minor questions”—viz., “those bipartisan, ‘good government’ policies that do not attract much attention but that affect countless individuals in small ways.” In particular, because of deference, Congress and the White House often share the same policymaking space. “Yet if one branch acts, that decision confers positive externalities on the other branch: the non-acting branch benefits from a policy it wants without having to pay for it. When incentives are structured this way, collective-action dynamics may prevent either branch from acting.” One possible solution is a new form of Chevron waiver, in which agencies could prospectively waive deference. As my paper explains:

The idea … comes from the collective-action literature. One solution to the Chicken Game is for a player to openly and irrevocably toss aside its steering wheel. Applied to administrative law, that insight cuts in favor of allowing regulators to “turn off” Chevron. If an agency can credibly claim that it lacks authority to create a policy, then the collective-action problem disappears.

My paper also explains the downsides to this possible solution (and others).

Regardless, I suspect the Supreme Court will eventually expressly address Chevron waiver. Stay tuned.*

* The legal world is understandably focused on the Supreme Court this week — which issued two very important separation-of-powers opinions. But if you want even more “admin law” in your life, read the D.C. Circuit’s opinions this week. Judge Randolph’s concurrence in Food & Water Watch v. Department of Agriculture may be especially noteworthy. Each of the opinions, however, is worth reading. The government, for example, lost in two cases for lack of reasoned decision-making, prevailed in one based on standing, and prevailed in the other based on Chevron deference.

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