Judicial Review of Agency Legal Interpretations – Pre-APA approaches

1. Judicial Review of Agency Legal Interpretations – Pre-APA approaches • Note increased tension over deference to be given agency interpretations of law after the New Deal: • Amer. Trucking – interpretation of statutes “exclusively a judicial function” • Nitrogen Products/Gray – SCT gave deference to contemporaneous agency interpretation of meaning of a statute that the agency was charged w/ implementing • Hearst - why two different standards of judicial review? • SCT engaged in independent (de novo) review of the meaning of the statutory term “employee” (i.e., doesn’t encompass the common law meaning) • SCT gave substantial deference to the NLRB’s application of the definition of employee to “newsboys” • Skidmore • What kind of deference does the SCT give the W&H Administrator’s Interpretive Bulletin (which interprets the term “working time” in the FLSA”? • Why is this deference different than in Hearst?

2. APA § 706 – Judicial Review of Agency Legal Interpretations • Section 706 – “To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, . . .” • Makes clear that courts have final authority re interpretation of law • Consistent w/ Marbury (as book points out) • But it doesn’t actually set forth a standard of review: • Are courts supposed to review de novo? • Was the APA simply designed to incorporate the common law approach (which was relatively amorphous and “multi-factored” as Skidmore and Hearst show)? • Does Chevron answer any of these questions?

3. Chevron v. NRDC – the facts • 1977 amdts to CAA imposed more stringent air quality requirements on states that had failed to reduce pollution levels below certain ambient standards in “non-attainment” areas • CAA required permits for construction/operation of “new/modified stationary sources of pollution.” • State could issue permit only if the proposed source met the new stringent requirements. EPA initially interpreted “stationary source” to include all individual pieces of pollution-emitting equipment within a plant • In a later rulemaking proceeding, EPA changed its position to use a “bubble” approach, which defined “stationary source” as the entire plant rather than an individual facility within a plant. • This change allowed plants to alter portions of their operation (as opposed to the whole operation) without getting a permit per 1977 amendments. • NRDC (environmental organization) sued, claiming that the agency’s new regulations violated the Clean Air Act.

4. Chevron – the test & it’s application • When a court reviews an agency’s construction of a statute which it administers • Has Congress spoken to the precise issue? If the intent of Congress regarding the precise question at issue is unambiguously clear, the court and the agency must give effect to that intent. • 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.” • Application • How does the Court apply prong 1? • How does it identify the issue to be resolved? • Does it believe Congress has unambiguously spoken to that issue? • Where does the Court look to answer that question? • At prong 2, is the agency’s interpretation reasonable? What factors does the Court consider?

5. What is the purpose of Chevron deference and is it a good idea? • Why does the Court defer to agency legal conclusions when the statute is ambiguous? • Is such a delegation consistent with the notion that judges “say what the law is”? What reasons for and against such deference are there?

6. NO CLASS – Tuesday, September 28TH MAKEUP TO BE SCHEDULED