Notice & Comment

Ninth Circuit Review-Reviewed: A Spectrum of Modesty in Article III Policymaking, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.”

In this month’s post, the common thread among the controversies is that they all implicate how courts can render administrative policy by interpreting texts that carry the force of law. In this realm, courts are bound primarily by themselves, which is why I’ve organized the cases below into three categories of decreasing judicial modesty.

Perhaps Too Modest: Declining to Resolve “Purely” Legal Questions in Szonyi v. Whitaker

Mr. Istvan Szonri, a lawful permanent resident, pled guilty to multiple sex crimes under the California Penal Code. Based on these violations, the Board of Immigration Appeals concluded that Szonyi was removable because his offenses did not arise out of a “single scheme of criminal misconduct,” as this statutory phrase is currently interpreted by BIA. In 1959, however, the Ninth Circuit had reached a conflicting interpretation of the same statutory provision, which the court reaffirmed most recently in 1991. In Szonyi v. Whitaker, Szonyi argued that the court’s interpretation should override the agency’s interpretation.

Notwithstanding that the statutory provision in Szonyi falls squarely within the judiciary’s range of expertise, the Ninth Circuit panel declined to give priority to its own construction. The panel noted that its precedent “was decided before Chevron, so we did not…have reason to apply the Chevron framework and did not specifically comment on the ambiguity of the statutory text under Chevron step one.” Having concluded that the statute was, in fact, ambiguous, the court deferred to the agency. In dismissing its own interpretation, the court relied on the Supreme Court’s decision in Brand X, which held that the judiciary’s interpretation trumps the agency’s only if the court’s “construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”

Although current Supreme Court precedent unmistakably justifies the panel’s reasoning, it is possible that the court was being modest to a fault when it refrained from adopting its own “best” reading of a “purely” legal question of the sort at issue in Szony­i. Certainly at least one Supreme Court justice thinks so. In a celebrated 2016 concurrence involving a remarkably similar controversy as in Szonyi, then-judge Neil Gorsuch expressed a deep-seated disagreement with the Brand X reasoning that an agency’s reading of an ambiguous statute supersedes an interpretation previously reached by Article III courts. There are, of course, other indications that the current Court might have been taken a less modest approach than the Ninth Circuit panel in Szonyi.

Likely Too Immodest: Resolution of “Mixed” Legal Questions in LULAC v. Wheeler

In stark contrast to the court’s modesty in Szonyi, consider next the late 2018 decision in LULAC v Wheeler, which the Ninth Circuit last month agreed to rehear en banc.

The controversy in LULAC pertained to chlorpyrifos, which is the most widely used conventional insecticide in the country. In September 2007, environmental groups submitted a petition to the EPA, claiming that chlorpyrifos is un-“safe” under applicable statutes, and demanding that the agency pull the insecticide from the market. In November 2015, the EPA proposed to grant the groups’ petition. The agency, however, failed to finalize its proposal before the White House changed hands from the Obama administration to the Trump administration. In early 2017, under new political management, the EPA denied the environmental groups’ petition. On the same day they sought an administrative appeal, the environmental groups sought judicial review.

Before the Ninth Circuit, the government rested its entire defense on a jurisdictional claim involving an alleged statutory requirement for exhaustion of administrative appeals. A split panel disagreed and concluded that the case was indeed ripe. As the EPA had presented no arguments in defense of its decision, the court decided that the agency forfeited any merits-based argument. Nevertheless, the majority panel briefly reviewed the substance of the EPA’s 2017 denial of the environmental groups’ petition, which, in turn, was premised on the uncertainty as to the health effects of chlorpyrifos. Long story short: the court gave greater credence to the agency’s 2015 proposal and 2016 risk assessment than it did to the agency’s 2017 final determination. According to the majority panel, no matter how “desirable it may be for [the] EPA to consult [scientific advisors] and even to revise its conclusion in the future, that is no reason for acting against its own science findings in the meantime.” Based on these conclusions, the court granted the petition for review and remanded to the EPA with directions to revoke all tolerances and cancel all registrations for chlorpyrifos within 60 days.

Setting aside the jurisdictional claims, the split panel’s order on the merits is troubling on many fronts.

Unlike the “purely” legal provisions at issue in Szonyi, the statutes at hand in LULAC reflect quintessential “mixed” questions of law and fact, which is generally the preserve of agencies, not courts. The statutes expressly call for the EPA administrator to make a highly technical determination whether a given insecticide is “safe.” Moreover, the relevant law plainly imparts significant latitude to the administrator, who must possess a “reasonable certainty” the insecticide poses no harm. Phrases like “reasonable” are tell-tale signs that Congress is imparting capacious discretion.

I’ve been following the chlorpyrifos debate, and, without question, the administrative record demonstrates scientific uncertainty. As the agency conceded in its 2016 risk reassessment, “the [Science Advisory Panel] …appears to have rejected…the approach the EPA put forward in its [2015] proposed rule.” Indeed, the advisory panel never had an opportunity to vet the agency’s 2016 risk reassessment, because the clock ran out on the Obama administration. Regardless one’s values, it is indisputable that the latest scientific input to the agency reflected substantial uncertainty surrounding the health effects of chlorpyrifos.

To my eyes, the evident uncertainty regarding the health effects of chlorpyrifos represents precisely the sort of “special case” especially conducive to “a modest judicial posture,” as argued by Prof. Adrian Vermeule in Law’s Abnegation. As the most widely used insecticide, chlorpyrifos is an important component of the agriculture industry and, ultimately, the food supply. It follows that undue regulation may have harmful practical effects that could be worse than the purported direct harms. In this context, there is a strong case for deference, or “thin rationality review” in Vermeule’s words, because such decisions are better left to comparatively expert and politically accountable agencies. On this note, it’s worth observing that the agency’s 2017 determination is arguably more politically accountable than its 2016 reassessment, as the former took place at the end of a president’s second term, while the latter occurred during a president’s first term.

Given the high stakes, the technical nature of the subject-matter, and the direct delegation to the EPA of an obviously “mixed” legal determination, it’s a fair question whether the court unnecessarily usurped the EPA’s policymaking function as assigned by Congress. Short of pulling from shelves the most commonly used insecticide in America, the court could have ordered the government to file a brief on the merits within days. Or the court could have exercised its discretion to allow the environmental groups’ administrative appeal to finish, and thereby complete the administrative record. Or the court could have ordered the government to produce a timeline for convening a science advisory panel. To prevent the agency from dragging its feet, the court could have applied the oft-used TRAC doctrine for judging whether agency action is unreasonably delayed. My point is that there are many judicial outcomes that are averse to the agency, but which are far more modest than what the panel did in LULAC. In light of these concerns, I welcome the Ninth Circuit’s decision to rehear the panel’s split decision before the full court.

Surely Too Immodest: Contemplating Constitutional Construction That Would Compel Judicial Creation and Management of Nationwide Economic Regulation in Juliana v. US

In 2015, a group of children filed suit in a federal district court in Oregon, Juliana v. US, alleging that the federal government, by failing to sufficiently regulate greenhouse gases, infringed on the kids’ putative constitutional right to a climate unaffected by anthropogenic global warming. After denying the federal government’s motions to dismiss and summary judgment, the case was set to go to trial before Judge Ann Aiken in October 2018. After twice denying government petitions to stay the case, the matter is now again before the Ninth Circuit on interlocutory appeal, at the strong suggestion of the Supreme Court. Expedited briefing took place last month.

For my part, I’m struck by the evident willingness of jurists within the Ninth Circuit to entertain this case, despite its far-reaching implications and obvious justiciability concerns. For almost three years, U.S. Oregon District Judge Aiken and two Ninth Circuit panels have contemplated having a single federal district court require the executive branch to stop global climate change. Of course, any such remedy would be untethered from the scores of enabling statutes that regulate the fossil fuel industry. By allowing this case to proceed this far, these courts countenance the creation and management of an Article III regulatory regime for the entire national economy.

The judicial immodesty evident among judges within the Ninth Circuit in Juliana v. US stands in stark contrast to a February order by U.S. Eastern District of Pennsylvania Judge Paul Diamond, in which he dismissed a near-identical suit.  Judge Diamond held that the Constitution does not guarantee children a right to a “life-sustaining climate system.” After disavowing both “the authority [and] the inclination to assume control of the Executive Branch,” Judge Diamond concluded that climate change regulation “is a policy debate best left to the political process.”

With all due respect to judicial and learned opinions to the contrary, I think Judge Diamond gets it right.


William Yeatman is a research fellow at the Cato Institute’s Levy Center for Constitutional Studies.

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