Judicial deference to agency legal interpretations – the Chevron doctrine

1. Judicial deference to agency legal interpretations – the Chevron doctrine When a court reviews an agency’s construction of a statute that it administers, courts ask: • Has Congress spoken to the precise issue? If Congress’s intent on the precise question at issue is unambiguously clear, court and the agency must give effect to that intent. • If Congress’s intent was clear and the agency has not given it effect, the regulation is invalid • If Congress’s intent was clear and the agency has given it effect, the regulation is fine. • If Congress’s intent is not clear, see Step 2. • If the statute is silent or ambiguous to the precise question at issue, the court should defer to the agency’s construction as long as it is “permissible” or “reasonable.” • Step 2 analysis can be pretty deferential. Step 1 becomes an important battle ground.

2. Has Congress clearly spoken? Possible approaches to statutory interpretation at Step 1 • After using every interpretative device at your disposal, and after exhausting all of your best interpretative efforts, an answer emerges as correct with some or a high level of confidence. Tools include: • Text of statutory provision • Context of language w/in statutory section, entire statute, other statutes • Purpose of the statute • Legislative history – committee reports, findings, etc. • Canons of Construction (none of which you are expected to know for this class) • External sources (dictionaries, regulatory background, etc.) • Social, economic policy, etc. • After a relatively cursory examination of the statute, an answer emerges as obvious. • Courts use some of the above tools - mainly statutory text & structure (often w/ the help of dictionaries).

3. MCI Telecomm v. AT&T (p. 889) • Comm. Act, Sec. 203(a)communications common carriers must file tariff charges with FCC • Sec. 203(b)allows FCC to “modify any requirement” made under sec. 203 • FCC policy made filing requirement for MCI (a non-dominant carrier) optional. ATT challenged FCC’s authority to have a permissive detariffing policy under Section 203. FCC claimed Sec. 203 allowed it to modify the tariff requirement. • Why would Congress have a tariff filing requirement? Why would FCC later exempt small carriers? Why would customers care about it? • Applying Chevron: • Precise question at issue: What does “modify any requirement” mean? • How does SCT majority approach/decide whether Sec. 203 clearly spoke to the question at issue? What does that mean for the agency’s interpretation? • How does the dissent approach/resolve the precise question at issue? What would that mean for the agency’s interpretation?

4. Babbitt v. Sweet Home Chapter . . . (p. 169) • ESA Sec. 9(a)(1)(B) – it is unlawful for anyone to “take [endangered species] within the US or its territorial sea” • ESA Sec. 3(19) – “Take” means “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect. . . .” • Loggers/landowners challenged reg defining “harm” to include “significant habitat modification or degradation where it actually kills or injures wildlife by impairing essential behavioral patterns . . .” • Precise question at issue: Is Secy’s interpretation of “harm” to include habitat modification that does not deliberately kill/harm animals within the meaning of the statute? • How did majority approach whether the ESA clearly defined “harm”? What does it ultimately conclude re the “clarity” with which Congress spoke? • How did the dissent approach deciding that issue? What does it ultimately conclude re the clarity with which Congress spoke?

5. FDA v. Brown & Williamson Tobacco (p. 171) • Issue – To what extent does the FDCA allow the FDA to regulate tobacco products? • FDA had issued regulations preventing marketing of tobacco to minors claiming that nicotine/cigarettes were drugs/drug delivery devices regulable under its authority pursuant to the FDCA • Is the FDA’s interpretation plausible? • How does FDCA define ‘drug’ & ‘device’? Is a cigarette a “drug” delivery “device”? • On what sources does the majority rely to determine that the FDCA clearly does NOT give the FDA authority to regulate tobacco? • Compare to Justice Breyer’s approach:

6. Mass. v. EPA (p. 181) • CAA § 202(a)(1) – EPA administrator shall “by regulation” prescribe… standards applicable to “emission of any air pollutant” from new motor vehicles that “in his judgment cause … air pollution, which may be reasonably anticipated to endanger public health or welfare [includes weather or climate]” • CAA § 7602(g) “air pollutant” is “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive... substance or matter which is emitted into or otherwise enters the ambient air.” • Precise Issue – Does the statute authorize EPA to regulate greenhouse gases? • Or possibly Are greenhouse cases “air pollutants” within the meaning of the statute?

7. Mass. v. EPA (p. 181), continued • Majority - Chevron Step 1 • Relies on statutory text– definition of “air pollutant” • Greenhouse gases CLEARLY fall within that definition (matter emitted into ambient air) & statute says EPA shall regulate “any air pollutant” if conditions met. • EPA’s claim of no jurisdiction does not give effect to the statute’s intent • Scalia – Chevron Step 1 • Also uses statutory text– definition of “air pollutant” includes other language too. Gases must be an “air pollution agent” and matter emitted into ambient air. • Term “air pollution” is ambiguous; SCT should accept EPA’s definition (only “impurities” near earth surface that create dirty air) because it’s reasonable

8. Mass. v. EPA & implicit delegations of “issues of great economic/political importance” • EPA argues that it lacks the authority to regulate greenhouse gases based on Brown & Williamson. • Why? • Why doesn’t that argument work as well as it did in Brown & Williamson?

9. Chevron deference – a possible summary up to this point and some relationships to history • Chevron Step 1 – primary issue is one of statutory interpretation • Justices disagreed over interpretive methodology & on the ultimate conclusion (i.e., whether the statutes clearly spoke to an issue) • BUT in these cases SCT engaged in independent review at step 1 (much like Hearst & pure legal questions) • Only if the statute did not clearly speak to the issue did justices defer to agency • Some additional thoughts on Chevron Step 1 • SCT may use a canon of construction NOT to give agencies implicit interpretive authority over questions of great “economic and political” significance • For a while people thought Mass v. EPA/B&W were also about SCT’s desire to independently review agencies’ claims about the scope of their jurisdiction • BUT Arlington v. FCC (2013), made clear that Chevron deference extends to agency interpretations of ambiguous statutes involving scope of agency jurisdiction