Yesterday the Supreme Court ruled in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council that the United States EPA and the Army Corps of Engineers could interpret the Clean Water Act to exempt water pollution sources from pollution control requirements if the pollution was accompanied by fill material.
This legal feat was accomplished because the Clean Water Act divides jurisdiction between the Corps for “fill” material and the EPA for pollutants. This division ostensibly gives each agency control of its own area of expertise, the Corps dredging and filling and the EPA pollutants that could harm human health or the environment generally. The problem comes when, as in this case, “fill” material contains significant amounts of pollution. Who then should regulate? I believe a straightforward reading of the intent of the legislation indicates that generally the Corps should only regulate fill that might contain de minimis amounts of pollution, as otherwise the “fill” exception could swallow the whole pollutant regulatory apparatus. Prior to this case, the Corps had never asserted jurisdiction over fill material whose primary purpose wasn’t fill. However, during the Bush administration, the agencies came to a written understanding that at this particular mine in Alaska, the release of fill laced with extensive pollutants into a lake would not be regulated by the EPA or be subject to strict pollution controls, and that the EPA would instead regulate the releases from that lake. The Supreme Court majority opinion upheld this action.
As bad as this decision is for the environment, the damage from any similar future scenarios could be contained, either by the agencies undergoing a more formal rulemaking, or, preferably, Congress addressing any ambiguity legislatively. The damage done to administrative law jurisprudence, though, is far more dangerous. The majority (Roberts, Kennedy, Alito, Thomas, Scalia, and Breyer) decided to “defer” to the agencies' decision to act in this way rather than examine the law on their own. This deference, which would usually only come when the agency has undergone a procedure with public input that alters a legal regime, has not been granted by the court for less formal procedures since at least 1984, on the theory that the court cannot abdicate its responsibility to interpret the law. Though the majority opinion states that it is not giving the strong deference, known as Chevron deference, in this case, in fact, they are - a point noted proudly by Justice Scalia in his concurring opinion:
One must conclude, then, that if today’s opinion is not according the agencies’ reasonable and authoritative interpretation of the Clean Water Act Chevron deference, it is according some new type of deference—perhaps to be called in the future Coeur Alaska deference—which is identical to Chevron deference except for the name.
(See p.39 of the opinion PDF.)
This greatly increases the power of the executive branch to make policy at the expense of Congress. While Presidential administrations may make excellent policy decisions and may do so while trying to follow the intent of the law, the executive branch is more shielded from public accountability, particularly in a situation such as this, when they undertake actions with no real public input at all, a main reason for the Chevron distinction.
Following the Bush administration's extreme interpretations of Chevron, the D.C. Circuit has recently moved away from automatically affording Chevron deference in environmental cases, signaling that it will not always assume that the agency is acting in the public interest. In this week's case, the Supreme Court goes in the opposite direction. The justices in this majority could be accused of misconstruing administrative law, but whether intentional or not, they are working a big change in administrative law with bad policy results. Like Justice Scalia, they should just admit to the fact so we as the public know what we are dealing with.