Chevron Step 1 – Has Congress clearly spoken to the precise issue at question?

1. Chevron Step 1 – Has Congress clearly spoken to the precise issue at question? • Step 1 primarily involves fights over statutory interpretation – 2 general approaches • Throw everything you have at the statute and eventually emerge with what you think is the right answer. Clear = right • After a relatively quick examination of the statute, eventually emerge with an obvious answer. Clear = obvious • Cases: • MCI & Sweet Home – straightforward judicial fights over prong 1 interpretation • Brown & Williamson – seems a perfect candidate for “clear = obvious” approach at prong 1. But SCT rules a seemingly clear statute does NOT give FDA power to regulate tobacco. • Is SCT’s decision not to find an implicit delegation of power to the FDA based on the “economic and political” importance of tobacco?

2. 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 more specifically “Are greenhouse gases ‘air pollutants’ within the meaning of the statute?”

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

4. 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 in Brown & Williamson?

5. 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 all cases SCT engaged in independent review of the statute at step 1 (much like Hearst approach to pure legal questions) • Only if the statute did not clearly speak to the issuedid justices defer to agency(similar deference to 2nd question in Hearst) • 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

6. Chevron Step 2 – application issues Step 2 - If statute is silent/ambiguous re the precise question, court should defer to the agency’s construction if it is “permissible” or “reasonable.” • SCT has made little headway in defining “reasonable” or “permissible”& lower courts approach “permissible” with different senses of meaning. • Although they want to be somewhat deferential to agency due to its enhanced institutional competence, Step 2 requires at least a minimal explanation of the regulation’s permissibility • Some courts merely require the explanation be “within the outer bounds of reasonableness.” • BUT Chevron itself seemed to be more rigorous: • Discussed that EPA reviewed question for a long time, set forth reasons for using new definition and why dual definition wasn’t as good, how new reg would still accomplish the purposes of the Act

7. The possible, emerging relationship between Chevron step 2 and “hard look” review • Judulang v. Holder, 132 S. Ct. 476 (2011), SCT intimated that ChevronStep-2 reasonableness analysis and “hard look” review are essentially the same thing: Were we to [analyze this case under Chevron rather than “hard look” review], our analysis would be the same, because under Chevron step two, we ask whether an agency interpretation is “‘arbitrary or capricious in substance.’” • SCT has not explicitly applied “hard look” review at step-2 but some lower courts have & Chevron’s explanation of why the EPA’s reg passed step-2 seemed more like “hard look” review than the ‘deference’ (“permissibility” analysis) many associate with Chevron. • The trend may be toward explicitly linking the two reviews. • Continued trend might strengthen (i.e., make less deferential) the review that many courts use at step 2 – or it could weaken “hard look” review.

8. Moving on to whether and in what situations Chevron should apply at all Does Chevron deference apply to all agency interpretations of law? No: By its own terms Chevron required deference only to an “agency’s construction of a statute which it administers.” There are many interpretations that do not meet these criteria.

9. Examples of agency interpretations of law where the Chevron two-step approach does not apply: • Agency interprets the Constitution to allow a statutory delegation of powers. • Agency interprets an 8th Circuit judicial opinion to allow it to grant a permit waiver in an environmental adjudication. • Agency interprets the APA to allow it to forego notice and comment rulemaking. • Agency interprets its own rules to allow it to grant a permit waiver in an environmental adjudication.

10. When does an agency administer a statute so that Chevron should apply? • An agency administers a statute when that statute is so much a part of the agency’s mission that it can be said to be the agency’s special responsibility. • Having to interpret a statute while performing its duties, does NOT rise to the agency’s “special responsibility” • agencies interpret lots of statutes • A statute that clearly gives an agency the power to (1) make rules implementing the statute or (2) to engage in adjudicatory or enforcement authority under the statute clearly is part of an agency’s special responsibility • Note how multiple agencies sharing authority over a regulatory scheme can complicate the issue – p. 178-79 n.6

11. Chevronanalysis – Adding Step 0 • Even if Chevron typically would apply – i.e., the agency is interpreting a statute that it administers – are there times when the courts should not use Chevron analysis because of the nature of the interpretation? • In other words: • Mustthe agency’s interpretation take a particular form in order to trigger the Chevron 2-step inquiry? • This is where Christensen/Mead are relevant

12. Christensen & Mead (pp. 187/188) – a summary • If the agency’s interpretation of the statute comes in the form of “force of law” interpretations (usually rulemaking or binding adjudications), courts should use traditional Chevron 2-step approach • BUT when the interpretation comes in the form of “shadow” law (e.g., policy manual, opinion letter, guidance documents) courts usually should not use traditional 2-step Chevron analysis • What kind of deference do shadow law interpretations get (assuming that the statute is ambiguous)? • Why should it matter whether an interpretation has the “force of law” or is a “shadow” law method of interpretation?

13. When do agency interpretations have the “force of law”? • Christensen “Force of law” = interpretations via rulemakings or binding adjudications; “shadow law” encompasses other interpretive vehicles • Mead– added a slight twist Agency interpretations get Chevron deference “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority. ...Delegation of such authority may be shown in a variety of ways, as by an agency’s power to engage in adjudication or notice & comment rulemaking, or by some other comparable indication of congressional intent.” • This inquiry is harder – instead of looking for safe harbors (rulemaking/adjudications), courts must determine if Congress intended shadow law interpretation to have the force of law. • Why weren’t the classification letters in Mead entitled to Chevron deference?

14. Chevron vs. Mead/Skidmoredeference – the differences • Chevron • Court gives deference to agency because the agency has been impliedly delegated interpretive authority through an ambiguous statute and has exercised that authority through the delegated means (usually a rule/order) • Deference given so long as interpretation is “reasonable/permissible” – agency usually wins but must provide an explanation of sorts • Mead/Skidmore • Court defers to agency interpretation made through informal/shadow law means because court thinks the interpretation is pretty good evidence the agency is right NOT because agency has implied interpretive authority • Skidmore factors – is agency interpretation persuasive? • Is area of interpretation w/in agency’s expertise? • Is interpretation contemporaneous w/ statute’s enactment? • Is interpretation longstanding or consistent? • Is interpretation supported by reasoned analysis? • What care did agency give to interpretation?