Notice & Comment

With or Without Chevron Deference, Agencies Have Extensive Rulemaking Authority, by Dena Adler and Max Sarinsky

Soon after the Supreme Court decided West Virginia v. Environmental Protection Agency, we wrote a short analysis outlining the major questions doctrine as laid out by the Court. Our piece was not rocket science. We simply summarized the majority’s test for determining whether an agency’s legal interpretation triggers the doctrine.

But as we expected, many litigants opposing the Biden administration’s regulations—and, sometimes, federal trial and appellate judges—have failed to follow that test. Instead, they have attempted to wield a doctrine meant to apply only in “extraordinary” cases as a weapon to restrict agencies from even ordinary exercises of their authority. Supporters of strong public safeguards have rebutted these ubiquitous major questions arguments, including in this forum (see examples here, here, and here).

This Term, the Supreme Court is weighing another question with large implications for judicial review of agency rules in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce. Specifically, the Court appears poised to eliminate or substantially curtail Chevron deference, a doctrine that instructs courts to defer to an agency’s reasonable interpretation of ambiguous statutory language. Many expect the Court will side with the challengers. If that occurs, we anticipate that litigants opposing the Biden administration’s regulatory policies will again seek to apply the Court’s decision overly broadly in an attempt to further hogtie the executive branch from enacting significant public safeguards. But that expansive application would be inappropriate: The end of Chevron deference should not strip agencies of meaningful authority to do their jobs.

To be clear, we don’t dispute that eliminating or curtailing Chevron deference would have serious consequences. After all, thousands of decisions have relied on its deference regime. Any blow to Chevron deference will undoubtedly encourage attempts to challenge many of those settled precedents in future cases. The erosion of Chevron deference also risks frustrating congressional design in future cases, particularly for legislation enacted against Chevron’s backdrop when Congress expected agencies to have deference to reasonably interpret ambiguous laws.

But equally clear—yet sometimes overlooked—is that agencies often have other avenues to adopt ambitious rules without Chevron deference. This piece highlights several of the legal principles that will endure regardless of Chevron’s fate (or the fate of other legal-deference regimes). In so doing, we highlight where regulators, advocates, and commentators can enforce the boundaries of any decision limiting or eliminating Chevron deference and so thwart efforts to leverage the decision to cripple agency actions that do not rest on Chevron deference. Applying these principles faithfully upholds legislative grants of regulatory authority.

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The Best Statutory Reading. A Supreme Court decision eliminating or curtailing Chevron deference will presumably require judges to more frequently determine the best reading of ambiguous statutes. In cases where the best statutory reading requires or empowers an agency to set impactful regulations, curtailing Chevron would actually support ambitious rules—and even work against deregulatory efforts that are inconsistent with such a reading.

There is good reason to believe that the best reading of an ambiguous statutory provision would often be one conferring broad authority that empowers impactful rulemaking. Many statutes confer broad regulatory authority, within certain limits, for agencies to take expansive action to tackle critical social problems. Congress does not have the resources or expertise to flesh out the extensive programs operated by agencies, ranging from national security to public health to banking—and it designed many statutes with that awareness. In legislation where Congress intended such broad grants of authority, the best reading of the statute should preserve significant latitude for agencies to design rules that go beyond just filling in the details.

One can identify such instances of broad agency authority through particular provisions along with context, enacted purpose, statutory history, and legislative history. As one example, a timely question is whether the Environmental Protection Agency (EPA) can set emission limits for power plants and other stationary sources based on the pollution reductions achievable by control technology that is not yet widespread in the regulated sector. But the D.C. Circuit resolved this debate in a 1973 case predating Chevron deference, finding that EPA appropriately considered technologies that would be available in the future. The court made that finding based on its own review of the relevant statutory language as well as legislative history. The court recognized that EPA retained significant discretion to use reasonable projections in setting emissions standards. 

Of course, what constitutes the best reading of a statute requires a case-by-case analysis that does not lend itself to easy generalization. Sometimes this analysis will support ambitious regulation; other times it may not. To perform the analysis well, courts will have to review the statute without a thumb on the scale, considering all relevant canons and interpretive clues including enacted purpose and statutory context.

Statutory Discretion. Chevron deference applies to statutory interpretations of ambiguous terms. But many statutes unambiguously give agencies broad discretion to make policy decisions. A ruling that curtails Chevron should have no impact on how agencies apply their authority under those mandates, since the best reading of these statutes supports agency discretion. 

Many statutes, for instance, instruct agencies to regulate in the “public interest” or use similar language like “public convenience and necessity.” Others instruct agencies to impose standards that are “feasible,” “practicable,” or “appropriate.” Still others authorize agencies to use their discretion to balance various factors. For example, courts have long recognized that, under Section 111 of the Clean Air Act, EPA “must exercise its discretion to choose an achievable emission level which represents the best balance of economic, environmental, and energy considerations.”

These types of provisions grant broad discretion to agencies to pursue their policy objectives. That grant of Congressional discretion is distinct from judicial deference under Chevron and should not be affected by the narrowing of that doctrine.

Justice Kavanaugh has recognized this distinction in his scholarship and opinions. As he explained, statutes using broad and capacious terms enable regulators to make a “policy decision” that “courts should be leery of second-guessing.” With or without Chevron, other judges must follow this instruction.

Fact-Bound Judgments. Chevron deference is also limited to interpretations of law rather than findings of fact. Agencies’ factual findings—including those based on scientific or economic analysis—will still merit judicial respect so long as they do not violate the Administrative Procedure Act’s “arbitrary and capricious” standard.

As the Supreme Court explained in its 1983 decision in Motor Vehicle Manufacturers Association v. State Farm—a bedrock case that courts must apply regardless of what happens with Chevron—judicial review of agency factual findings is “narrow, and a court is not to substitute its judgment for that of the agency.” If the agency “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action,” a court cannot second guess the agency’s judgment. Courts will still be obligated to respect agencies’ fact-based findings under the State Farm standard regardless of what happens to Chevron deference. Accordingly, agencies’ reasonable factual findings can continue to undergird impactful or controversial agency policies.

Surely, what constitutes a legal versus a factual determination may sometimes be murky when dealing with a mixed question of law and fact. Administrative lawyers may find it helpful to review how the existing body of appellate law on the standard of review for trial-court findings already sets out this distinction. The basic inquiry is intuitive: As the Supreme Court recently explained, the legal standard for “a mixed question all depends . . . on whether answering it entails primarily legal or factual work.” In practice, this division may sometimes be challenging in the administrative law context where policy questions often intertwine legal and factual analysis. Courts should not abandon respect for agencies’ factual findings whenever a legal question is also part of the mix.

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In addition to these principles, agencies may retain authority through legal-deference regimes other than Chevron. For example, Skidmore deference predates Chevron and gives weight to agency interpretations based on their “power to persuade.” The forthcoming Supreme Court decisions may offer insight into the future role of non-Chevron deference regimes.

As these above principles illustrate, agencies retain many avenues to issue meaningful regulations in a world with or without Chevron deference. We expect that this article’s insights will be familiar to most administrative law scholars and practitioners. But given how critics of the current administration’s regulatory policies have exaggerated previous Supreme Court decisions to suit their ends, these points bear repeating.

In short, a statute’s best reading will often point to substantial agency authority. Statutory discretion is not the same as legal deference. And agency factual findings are distinct from legal judgments and are subject to limited judicial review. Eliminating or narrowing Chevron’s command to defer to agencies’ reasonable legal interpretations of ambiguous statutes should have no bearing on these principles if they are faithfully applied.

Dena Adler is a senior attorney at the Institute for Policy Integrity at New York University School of Law, where Max Sarinsky is the regulatory policy director.

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