Suhasini Ghosh

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The work of federal administrative agencies has significant societal influence.[1] These agencies are “prime instruments for effectuation of governmental policies and programs, regulatory and non-regulatory.”[2] Because of this substantial power, “[c]ontrol, review and improvement of the agency process have become increasingly major concerns of the legal system generally, and of administrative law particularly.”[3] The Administrative Procedure Act (APA) regulates the procedural processes federal agencies must comply with.[4] Historically, as the amount of federal agencies increased, the need for standardization and a method to guarantee “administrative impartiality” arose.[5]

In reviewing an issue of law, a court will typically review administrative law with the de novo standard of review.[6] However, courts have developed judicial deference principles such as Chevron and Auer deference.[7] Chevron deference permits a court to defer “to an agency’s interpretation of a statute the agency administers if the interpretation is reasonable.”[8] Auer deference is the principle that a federal court will defer to an agency’s interpretation of their own regulation, unless the interpretation is “plainly erroneous or inconsistent with the regulation.”[9] This note focuses on analyzing Auer deference.

 In recent years, many legal experts and courts have questioned the application of Auer deference.[10] As the impact and presence of administrative agencies has grown over the years, so has the influence of Auer.[11] The Supreme Court decided Kisor v. Wilkie in June 2019.[12] The only question presented in Kisor was whether Auer deference should be upheld.[13] In a 5-4 decision, the Court sustained Auer.[14] Justice Kagan wrote for the majority.[15] Her opinion narrows Auer deference and expresses reasons to support the principle’s preservation.[16]

Courts have already applied Auer deference in many environmental cases.[17] Thus, it is important to ask how Auer influences environmental law and whether eliminating it would have a beneficial or negative impact on the environment. This Note tracks a few of those environmental cases and determines the patterns to when courts have used the principle. Furthermore, this Note predicts how these patterns will change with the new limits the Supreme Court has put on Auer deference. Lastly, this Note addresses the implications for environmental cases if the Court overturns Auer in the future.

Part I introduces the topic of administrative law and deference principles. This section also includes a discussion of a few of the major deference principles that exist aside from Auer. The section discusses the importance and impact these deference doctrines have had on administrative law at large. The last part of Part I focuses on the Supreme Court case that created Auer deference and analyzes how Kisor narrows Auer. Part II examines two cases involving environmental law that have applied Auer deference and one case where the Court considered and decided against applying Auer. The section tracks patterns of decisions made in these environmental cases and will take note of the similarities and differences of when the Court applied Auer. The analysis also compares these past cases to Kisor. Part III provides a set of predictions concerning Auer deference. It includes an examination of the circumstances needed to overrule Auer and why. Additionally, the section evaluates the potential overall impact on environmental law if the Court decides to overrule Auer deference in the future. 

 

[1] Lee Modjeska, Admin. Law Practice and Procedure § 1:1 (2019).

[2] Id.

[3] Id.

[4] Id. § 1:2.

[5] Id.

[6] Robert A. Long, Jr., Bus. & Com. Litig. Fed. Courts § 139:32 (2018).

[7] Id.

[8] Id.

[9] Auer v. Robbins, 519 U.S. 452, 461 (1997).

[10] Erica J. Shell, The Final Auer: How Weakening the Deference Doctrine May Impact Environmental Law, 45 Envtl. L. Rep. News & Analysis 10954, 10954 (2015).

[11] Id.

[12] Kisor v. Wilkie, 139 S. Ct. 2400 (2019).

[13] Id. at 2408.

[14] Id.

[15] Id.

[16] Id.

[17] See, e.g., Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 557 U.S. 261 (2009) (providing one example where the Court granted Auer to an agency in an environmental case); see also Decker v. Northwest Environmental Defense Center, 568 U.S. 597 (2013) (explaining why the Court granted the EPA deference for its interpretation of its own regulation).