parent nodes: administrative law | agency adjudication | agency decisions of law | agency interpretations of regulation | arbitrariness review | collateral attack on state conviction | formal APA proceeding | Gonzalez v Reno | Japan Whaling Assn v American Cetacean Society | judicial foreign affairs deference | primary jurisdiction
Chevron v NRDC
administrative law
See agency decisions of law for the preliminary question ("Chevron step zero") of whether Chevron deference applies, or whether some lesser standard such as Skidmore deference applies.; see also agency interpretation of regulations.
Chevron provides a two-step test for judicial review of agency interpretations of law:Has Congress spoken to the precise question at issue, either through the text or legislative history? If yes, stop. If no, go to step 2.If the statute is silent or ambiguous with respect to the issue, is the agency’s interpretation reasonable?
*Chevron Step 1*
The first step is to ask whether Congress has expressed an intent to the precise issue. If Congress has expressed such an intent, that intent controls. Note that "intent" is a legal fiction, which can serve as a background rule against which Congress can legislate.
Note that if an agency says it is bound by the statute's meaning, and the court holds that it isn't, the court will remand to the agency, asking it to exercise its discretion under Step 1.
There's a debate in the courts about literalism on the one hand and avoiding unintended absurdity on the other. That debate is partly about (1) the risks associated with allowing judges to abandon literal meaning in cases when they think the outcome is absurd, which could ntroduce more uncertainty into the system, and (2) about the legislatures and their incentives if we allow agencies to depart from non-literal meanings. The potential benefits are the same, but the risks of agency non-literalism may be different from judicial non-literalism, since administrators are technocratic experts. Compare the de minimis exception in [Public Citizen v Young]. Also entrenched is the view that, unless Congress has expressly negated the agency's desire to consider costs, it is allowed to consider costs.
Sunstein: See administrative agencies as today's common-law courts. At least across a certain domain, the argument goes, the administrative "common-law courts" should have more authority than older real common-law courts, because of their technocratic ability.
*Relevant factors in the Chevron Step 1 include:*
- The Court will use "traditional tools of statutory construction" to ask whether "Congress had an intention on the precise question of issue." [INS v Cardoza Fonseca] (holding that the INS could not interpret "well-founded fear of persecution" and "clear probability of persecution" to both mean "more likely or not," given their different language and placement in the statute).
- The structure of a statute can imply the intent of Congress [Babbitt v Sweet Home] (pointing out that because agency could grant permit for otherwise forbidden "taking" under ESA if the taking was "incidental," then presumably incidental "taking" was otherwise forbidden under the act)
- If the Court feels it can discern an intent from the literal meaning of the text, that meaning controls. [Babbitt v Sweet Home] ("take" in Endangered Species Act, which was part of a list of forbidden actions including "hunt, trap, kill," etc., could be read to include "adverse modification of habitat")
- The Court may also use legislative history to determine the intent of Congress. See [Dole v United Steelworkers] (using history in part to argue that OMB approval required under Paperwork Reduction Act did not apply to requests for information from third parties); [Babbitt v Sweet Home] (legislative history showed that "take" involved "harassment, intentional or not")
- The Court may use a canon of construction may be used, either to trump or be trumped by Chevron. - De minimis exceptions must be allowed [Public Citizen v Young] (reading statute that required FDA to ban food coloring that "induce(s) cancer in man or animal" to allow FDA to exempt food additives that posed only a one in a million risk of inducing cancer)
- Courts should avoid absurd results (Holy Trinity)
- Courts should interpret statutes to avoid retroactivity [Bowen v Georgetown Univ Hospital]
- Courts should interpret statutes to avoid constitutional difficulty [Kent v Dulles] (interpreting statute governing passports not to allow government to refuse passports to Communists, given that travel was a fundamental right and "if (Congressional power to restrict rights) is delegated, the standards must be adequate to pass scrutiny by the accepted tests"0
- Generally, canons of construction should apply to the extent that they further Congressional intent [Public Citizen v Young] (arguing that a de minimis exemption to a statute requiring the FDA to ban food coloring that "induce(s) cancer" would help "implement() the statutory command")
-It may be the case (but it's not at all clear) that Chevron deference is not available to make major or fundamental changes to the status quo- See [MCI v AT and T] (FCC could not use provision that allowed it to "modify any requirement" to apply a requirement for telephone companies to file rates to AT&T but not MCI, on the grounds that "modify" must be taken to mean "moderate change")
- [FDA v Brown and Williamson] (restricting FDA to attempt regulation of cigarettes, based of series of other statutes regulating tobacco and Congress' failure to give FDA explicit authority to regulate tobacco)
- But see [Massachusetts v EPA] (requiring EPA to make major change by regulating greenhouse gases)
- Note the obvious difficulty for a court in deciding whether a change would be "major"
-Deference may be less appropriate where an agency's political policy conflicts with or undermines its policy expertise [Massachusetts v EPA] (arguing that EPA did not follow sufficient procedure/show sufficient expertise in refusing to make rules on climate change)
-An interpretation need not be longstanding or consistent with prior doctrine in order to receive deference-But a longstanding interpretation may receive "particular deference" [Barnhart v Walton]
-Chevron trumps stare decisis if the judicial precedent held a prior precedent as a reasonable interpretation (so that the agency can change its interpretation)
Chevron Step 2
Step 2 asks whether the agency's interpretation is "reasonable" or "permissible." Note the similarity with—and as some argue, the equivalence to—the arbitrary or capricious standard of hard look review. Note that the Supreme Court has never rejected an agency decision of law as unreasonable under Step 2.
Some lower courts may transform a step 2 problem into a step 1 problem and reject the agency action on that basis. See, for example, [Ohio v Dept of Interior] (rejecting agency's interpretation of CERCLA, which requires the Dept to "identify the best available procedures to determine (environmental) damages" and "take into consideration factors including, but not limited to, replacement value, use value, and ability of the ecosystem or resource to recover." to value natural habitats by the lesser of their use value or replacement value on the grounds that there can be some interim loss of value when the land is "used," that humans value land and nonhuman animals in a way that is not exhausted by a contingent valuation, and that valuing land).
Note that step 2 analysis for "reasonableness," like the analysis that appears to have happened in [Ohio v Dept of Interior], is very similar to the hard look test for whether an action is arbitrary or capricious.