Notice & Comment

Does Auer/Chevron Deference Apply to State Agency Interpretations of Federal Law?

In Grand Canyon Trust v. Energy Fuels Resources (U.S.A.) Inc., Judge Waddoups of the U.S. District Court for the District of Utah concluded that a state agency is entitled to “some deference” as to an interpretation by the Utah Department of Air Quality (DAQ) of the Clean Air Act and its implementing regulations.

Here’s the key part of the opinion (starting at page 30, footnote omitted):

Whether a state agency is entitled to deference when administering federal law is not well settled. According to the Tenth Circuit, a “state agency’s determination of procedural and substantive compliance with federal law is not entitled to the deference afforded a federal agency.” AMISUB (PSL), Inc. v. Colo. Dep’t of Soc. Servs., 879 F.2d 789, 796 (10th Cir. 1989) (reviewing de novo the state of Colorado’s Medicaid plan for consistency with the Federal Medicaid Act and relevant federal regulations) (citing Turner v. Perales, 869 F.2d 140, 141–42 (2d Cir. 1989), which distinguished Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843–44 (1984)). But the Tenth Circuit’s conclusion does not preclude all deference to state agencies, and other circuits have concluded that state agencies’ regulatory decisions may, nonetheless, merit some deference where the agency is administering federal statutes and regulations upon an express delegation from Congress as long as the agency’s interpretation or application is otherwise consistent with federal law. See, e.g., Ariz. v. City of Tucson, 761 F.3d 1005, 1014–15 (9th Cir. 2014) (concluding that the relevant state agency was owed “some deference” regarding the environmental issues in a CERCLA consent decree but not in interpreting CERCLA’s mandate); City of Bangor v. Citizens Commc’ns Co., 532 F.3d 70, 94 (1st Cir. 2008) (noting that “Federal courts generally defer to a state agency’s interpretation of those statutes it is charged with enforcing, but not to its interpretation of federal statutes it is not charged with enforcing”); Bldg. Trades Employers’ Educ. Ass’n v. McGowan, 311 F.3d 501, 507 (2nd Cir. 2002) (observing that no deference is owed to state agency’s interpretations of federal laws the agency is not charged with enforcing, implying that some deference is owed where the agency has been charged by Congress or a federal agency with enforcement); Ritter v. Cecil Cty. Office of Housing & Cmty. Dev., 33 F.3d 323, 328 (4th Cir. 1994) (concluding that a state agency charged with administering the federal Section 8 housing program pursuant to congressional authorization should be accorded deference because the agency’s regulation was not inconsistent with federal law and “a court may not substitute its own interpretation for the agency’s if the agency’s interpretation is reasonable”).

This is so because the state agency has at least some expertise and Congress likely intended to draw on that expertise when permitting delegation to a state agency. See City of Tucson, 761 F.3d at 1014–15 (“[W]here state agencies have some environmental expertise they are entitled to ‘some deference’ with regard to questions concerning their area of expertise.”); City of Bangor, 532 F.3d at 94 (granting some deference to a state agency’s decision to enter a consent decree in a CERCLA enforcement action because “the state agency has some expertise,” but noting the deference is less than the EPA would receive); League to Save Lake Tahoe v.Trounday, 598 F.2d 1164, 1174 (9th Cir. 1979) (concluding that it was proper to defer to the state agency’s permitting decision pursuant to the Nevada State Implementation Plan mandated by the Clean Air Act); Voigt v. Coyote Creek Mining Co., LLC, No. 1:15-CV-00109, 2016 WL 3920045, at *31 (D. N.D. July 15, 2016) (deferring to the state agency’s application of federal law “to the particular circumstances of th[e] case” in issuing a minor source permit under the CAA); Nw. Envtl. Def. Ctr. v. Cascade Kelly Holdings LLC, 155 F. Supp. 3d 1100, 1124–25 (D. Or. 2016) (deferring to a state agency implementing the Clean Air Act and the Oregon SIP because Congress directly contemplated state involvement and the state agency had environmental expertise).

The Supreme Court’s view of the EPA’s role in overseeing state agencies’ administration of the Clean Air Act supports some deference to DAQ. See Alaska Dep’t of Envtl. Conservation v. Envtl. Prot. Agency, 540 U.S. 461, 490–91 (2004). In Alaska Department of Environmental Conservation v. EPA, the Court instructed that the EPA should not “step in” and involve itself in state administration of the CAA unless the “state agency’s” application of the relevant standard is “not based on a reasoned analysis.” Id. at 490 (citation and quotation marks omitted). It continued that, while the EPA serves a “limited but vital role in enforcing [CAA standards],” the statutory “scheme . . . places primary responsibilities and authority with the States, backed by the Federal Government.” Id. at 491 (citation and quotation marks omitted); see also League to Save Lake Tahoe, 598 F.2d 1164, 1174 n.11 (9th Cir. 1979) (“In its findings in Subchapter I of the Act, Congress explicitly stated that ‘the prevention and control of air pollution at its source is the primary responsibility of States and local governments.’” (quoting 42 U.S.C. § 7401(a)(3)). Here, DAQ is entitled to some deference because it is applying federal regulations pursuant to Congress’s express authorization in a manner that is not inconsistent with federal law and is reasonable.

FWIW, it appears that the state agency interpretation is essentially of the EPA’s implementing regulations and not of the Clean Air Act itself. So this case isn’t really about Chevron deference to an administrative interpretation of a federal statute. Yet the district court makes no mention of Auer deference to an agency’s regulatory interpretation. This failure to engage with Auer deference probably still makes sense as Auer commands judicial deference to a federal agency’s interpretation of its own regulation.

[Update: Of course, Will Yeatman had a smart post on this blog last year that discusses the Supreme Court’s decision in Alaska Department of Environmental Conservation v. EPA, on which the district court here relies, in much greater detail.]

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