This post was originally published on Legal Planet. Reprinted with permission.
The U.S. Supreme Court is currently considering whether to overrule the Chevron doctrine. Chevron requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute. We should know by the end of next month whether the current conservative super-majority on the Court will overrule Chevron.
In the meantime, it’s illuminating to put the current dispute in the context of the last 80 years of judicial doctrine regarding deference to agencies on issues of law. As this timeline shows, the Supreme Court’s engagement with this issue has been long and complex.
1944
Skidmore v. Swift & Co. decided by Supreme Court. The Court holds that the agency’s decisions “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance” in interpreting statutes. The degree of deference to the agency’s view will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”
1945
Court considers deference to agency interpretations of its own regulations in Bowles v. Seminole Rock & Sand Co. The agency’s view has “controlling weight unless it is plainly erroneous or inconsistent with the regulation.”
1974
Bumpers Amendment introduced in Senate, intended to eliminate judicial deference to agencies on questions of law.
1979
Bumpers Amendment passes Senate, is strongly opposed by Carter administration, dies in House.
1982
Modified Bumpers Amendment passes Senate, dies in House.
1984
Chevron, USA v. NRDC articulates the Chevron doctrine, under which a court must defer to an agency’s reasonable interpretation of an ambiguous statute.
1997
Auer v. Robbins reaffirms the Seminole Rock rule that courts must accept an agency’s interpretation of its own regulation unless the interpretation is plainly erroneous. Justice Scalia writes the opinion for a unanimous Court.
2000
Supreme Court decides FDA v. Brown & Williamson Tobacco, declining to exercise Chevron deference when a regulation involves an issue of exceptional importance.
2001
United States v. Mead Corp. holds that Chevron deference applies only to agency actions having the force of law. All other agency interpretations of statutes are subject to Skidmore deference.
2006
Gonzales v. Oregon declines to give Auer deference when a regulation merely tracks the statutory language.
2009
In National Cable & Telecommunications v. Brand X, the majority opinion by Justice Thomas applies Chevron deference, even though the agency’s position had flip-flopped.
2013
City of Arlington v. FCC holds, in an opinion by Justice Scalia, that Chevron deference applies even to issues of whether the agency has any jurisdiction over a matter. Notably, Chief Justice Roberts and Justices Alito and Kennedy dissent, the first real crack in the Court’s acceptance of Chevron.
2020
In Kisor v. Wilkie, the Court rebuffs a call to overrule Auer. The plurality opinion by Justice Kagan recalibrates Auer, limiting deference to cases when a court has exhausted all traditional tools of interpretation and limiting deference to interpretations based on an agency’s authoritative, expert judgment. Chief Justice Roberts concurs with the recalibrated test, making a majority for that part of Kagan’s opinion.
2024
The Supreme Court considers whether to overrule Chevron in two cases, Relentless v. Dept. of Commerce and Loper Bright Enterprises v. Raimondo.
Stay tuned for further developments.
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Daniel Farber | May 2, 2024
The U.S. Supreme Court is currently considering whether to overrule the Chevron doctrine. Chevron requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute. We should know by the end of next month whether the current conservative super-majority on the Court will overrule Chevron. In the meantime, it’s illuminating to put the current dispute in the context of the last 80 years of judicial doctrine regarding deference to agencies on issues of law. As this timeline shows, the Supreme Court’s engagement with this issue has been long and complex.
Federico Holm | May 1, 2024
Since the passage of landmark legislation like the Inflation Reduction Act and the Bipartisan Infrastructure Law during the Biden administration, we’ve repeatedly heard that we’re at a critical junction: There is a need to expand and accelerate environmental, climate, and clean energy policy implementation and opportunities to do so, but the pathway toward this goal will be plagued by significant delays. The National Environmental Policy Act (NEPA) has become a common scapegoat in this fight, with critics charging that the sometimes lengthy and complicated environmental review process NEPA requires is the main thing holding up decarbonization and the clean energy transition. This has led to calls from across the political spectrum for “reforming” the statute. This assumption, however, misrepresents what happens on the ground.
Daniel Farber | April 29, 2024
The bad news is that we’re not yet on track to avoid dangerous climate change. But there’s also good news: We’ve taken important steps that will ease further progress. We should resist the allure of easy optimism, given the scale of the challenges. Neither should we wallow in despair. There’s a good basis for hope.
Daniel Farber | April 25, 2024
The U.S. Environmental Protection Agency (EPA) has issued a cluster of new rules designed to limit carbon emissions from power generators. Once upon a time, the presumption would have been that the rules would quietly go into effect, until someday a court rules on their validity. These days, we can expect a lot of action to begin almost right away.
Daniel Farber | March 28, 2024
In West Virginia v. EPA, the U.S. Supreme Court struck down the Obama-era Clean Power Plan. The heart of the ruling was that the U.S. Environmental Protection Agency (EPA) had engaged in a power grab, basing an unprecedented expansion of its regulatory authority on an obscure provision of the statute. Conservative groups have claimed since then that virtually every government regulation raises a major question. But the doctrine cannot be read that broadly. In particular, the doctrine does not apply to the emission standards for cars that EPA issued last week. As EPA explains in its prologue to the rule, the car standard is very different from the Clean Power Plan.
Sophie Loeb | March 27, 2024
Today, the Center for Progressive Reform is publishing a new policy brief. Missing the Mark: How North Carolina’s Decarbonization Efforts Fall Short and How to Fix Them examines the pitfalls of North Carolina’s decarbonization plan (known as the Carbon Plan and developed by Duke Energy) and alternative models to address those shortcomings.
Daniel Farber | March 26, 2024
The Chevron doctrine requires judges to defer to an agency’s interpretation of a statute if that interpretation is reasonable. The State Farm case, which is much less widely known, requires courts to defer to an agency’s expert judgment unless its reasoning has ignored contrary evidence or has a logical hole. As you probably already know, two cases now before the Court will probably result in abandoning or revamping Chevron. But the “abortion pill” case that will be argued today will test the Court’s adherence to State Farm. Will the conservative Justices stand by State Farm even when doing so expands access to abortion?
Federico Holm | March 25, 2024
My colleagues at the Center for Progressive Reform and I recently published a report and interactive map examining how local ordinances that restrict clean energy development can impose major obstacles in our efforts toward a just clean energy transition. Among the many important findings in our report, we highlighted the high degree of variability that exists between states in the way large-scale clean energy generation is regulated. In some cases, like Illinois and Michigan, governments have empowered state authorities to override local siting measures; other states have given local governments more decision-making powers to decide if and how renewable infrastructure can be built. Among the latter is Ohio.
Victor Flatt | March 14, 2024
Last week, the U.S. Securities and Exchange Commission (SEC) released its long-awaited final rule requiring publicly traded companies to report certain climate risks and greenhouse gas emissions as part of their financial risk disclosures.