Current trends in judicial review of environmental agency action.

• Author: O'Scannlain, Diarmuid F.

A Supreme Court Justice once began a lecture on administrative law with this apt observation: "Administrative law is not for sissies--so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture."(1)

1. INTRODUCTION

   Today we address an issue---judicial review of administrative action--that, dull or not, continues to grab the attention of the courts and commentators. The debate, for reasons I shall discuss, is especially important to the environmental law practitioner, in whose field many battles over the appropriate scope of judicial review are being fought.

   The broad topic on which I am to comment--Current Trends in Judicial Review--covers a multitude of issues, far more, I am afraid, than to which a forty-five minute lecture can do justice. I speak, of course, only for myself and not for my court. My focus today will be on trends in judicial review of environmental agency interpretations of law post-Chevron.(2) The cynic might deem this an impossible task at the outset: according to some legal scholars this area of jurisprudence is so confused that there exist no identifiable trends. I, for one, do not share that view. By analyzing a few carefully selected cases, I hope to illustrate, if nothing else, the key concepts that drive judicial review in this area today.

2. AVAILABILITY OF JUDICIAL REVIEW

   While I will focus my remarks on trends in actual substantive judicial review, we should keep in mind that recent trends in the threshold matter of the availability of judicial review are all equally important.

   We could examine at length, for example, recent trends in judicial interpretation of the statutory preclusion exemption of the Administrative Procedure Act (APA).(3) Or, we could examine standing, focusing on the Supreme Court's decision in Lujan v. Defenders of Wildlife,(4) or on recent trends in the interpretation of citizen suit provisions.(5) At yet another level, we could examine trends toward expansion of the APA exception to judicial review for agency action that is "committed to agency discretion by law."(6)

   Rather than focus on the availability of judicial review, I would like to concentrate on recent trends in the actual substantive review of agency interpretations of environmental statutes.

   1. Substantive Review of Environmental Agency Action

   Our starting point is Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.(7) Chevron is regarded as "one of the most important administrative law decisions in recent memory,"(8) and "one of the very few defining cases in the last twenty years of American public law."(9)

   1. Chevron: A Two-Step Approach

      Justice Stevens, writing for the unanimous Chevron court, adopted a two-step analytical approach to judicial deference to agency interpretations of law:

      First, always, is the question whether Congress has directly spoken to the

      precise question at issue. If the intent of Congress is clear, that is the

      end of the matter; for the court, as well as the agency, must give effect

      to the unambiguously expressed intent of Congress.(10)

      Failing that, the analysis moves to step two:

      If, however, the court determines Congress has not directly addressed the

      precise question at issue, the court does not simply impose its own

      construction on the statute, as would be necessary in the absence of an

      administrative interpretation. Rather, if the statute is silent or

      ambiguous with respect to the specific issue, the question for the court is

      whether the agency's answer is based on a permissible construction of the

      statute.(11)

      Chevron itself provides a good example of how the two-step analysis applies. The environmental statute at issue in Chevron regulated "stationary sources" of air pollution.(12) Under regulations of the Environmental Protection Agency (EPA), a plant having several pollution-emitting devices, such as a factory with several smokestacks, would qualify as one stationary source.(13)

      Applying step one of the analysis, the Supreme Court decided that the term "stationary source" was ambiguous.(14) The statute defined "stationary source" as "any building, structure, facility, or installation," but did not specify how to count plants with several sources of pollution.(15) Moving to step two, the Court decided that EPA's definition of "stationary source" was reasonable under the statute. The Court thus deferred to EPA's interpretation.(16)

   2. Chevron's Theoretical Underpinnings

      Why, one might ask, should the Court have deferred to an agency's interpretation of a term that Congress had defined by statute? Is it not, in the words of Chief Justice Marshall, "emphatically the province and duty of the judicial department to say what the law is"?(17)

      I would like to pause, at least briefly, on this question. The Chevron analysis has been, and continues to be, widely criticized as ambiguous, inconsistent, and confusing.(18) If our task is to identify judicial trends in its application in the environmental arena, we need to take a preliminary step back and briefly consider Chevron's theoretical underpinnings.

      One Supreme Court Justice has observed that "[i]t is not immediately apparent why a court should ever accept the judgment of an executive agency on,a question of law."(19) Cases and commentators have suggested several theoretical justifications for deferring to reasonable administrative interpretations. One justification, on a practical level, is that agencies often have an "intense familiarity with the history and purposes of the legislation at issue."(20) This is hardly a valid justification, however, if it is the constitutional duty of the courts to say what the law is.

      Some, including independent prosecutor and former District of Columbia Circuit Judge Kenneth Starr, have suggested that Chevron is grounded in the principle of separation of powers.(21) The essence of the argument is that democratically accountable officials of the executive branch have the power to set policy, not judges.(22) As then-Judge Starr commented in 1986,

      Chevron vindicates the appropriate and traditional function of judicial

      review. It confirms the judiciary's historic role of declaring what the law

      is, but prevents the judiciary from going beyond that venerable, legitimate

      role and straying into the forbidden ground of overseeing administrative

      agencies. . . . [T]hat role is allotted to the political branches, those

      directly accountable to the people.(23)

      Stated differently, when the "`traditional tools of statutory construction'" cannot resolve an ambiguity left by Congress, "the resolution of that ambiguity necessarily involves policy judgment," which, in the words of Associate Justice Antonin Scalia, is "not for the courts but for the political branches."(24)

      I tend to agree with Justice Scalia that this separation of powers justification is not wholly persuasive. The "`traditional tools of statutory construction'" assuredly include consideration and evaluation of competing policies, as, for example, when a court chooses a particular statutory construction because the alternative would produce "`absurd'" results.(25) The reason courts defer to the agency's interpretation cannot merely be that courts lack "constitutional competence to consider and evaluate policy."(26)

      I find that the most compelling theoretical justification for Chevron is that, as stated in the words of the First and District of Columbia Circuits, "[t]he extent to which courts should defer to agency interpretations of law is ultimately `a function of Congress's intent on the subject as revealed in the particular statutory scheme at issue.'"(27) As explained by Justice Scalia, whose expertise in this area is well known, where "Congress intend[s] a particular result, but is not clear about it," we have a pure question of law for the courts to resolve; where, however, "Congress ha[s] no particular intent on the subject, but [means] to leave its resolution to the agency," the only question of law for the courts to resolve is "whether the agency has acted within the scope of its discretion--i.e., whether its resolution of the ambiguity is reasonable."(28) I am inclined to concur in Justice Scalia's endorsement of this justification. As I had occasion to comment in two Clean Water Act(29) cases, "[p]laced between the express intent of Congress and the recalcitrance of the Agency, the proper role of the court . . . must be to remind the Agency that its duty is to apply the existing law,"(30) but deference is appropriate "where the Agency's decision on the meaning or reach of the [statute] involves reconciling conflicting policies committed to the Agency's care and expertise under the [statute]" by Congress.(31)

      Thus, the preliminary question of how we even justify Chevron provides a very important backdrop against which to perform our survey of cases, and ultimately to glean some trends in judicial review. The fundamental issue, we will see, underlying most cases I will address, is what exactly does it take to satisfy the first step of Chevron--that is, when is a statute ambiguous? Justice Scalia predicted in 1989 that "[i]t is here . . . that the future battles over acceptance of agency interpretations of law will be fought."(32) That prophecy has already been realized, and then some, both in the courts and in the law reviews.

   3. Textualism Versus Intentionalism

      The biggest battle in the unresolved war over Chevron ambiguity involves statutory interpretation--in the words of the scholars, the battle of textualism versus intentionalism. Intentionalism, as they call it, "refers to the use of a variety of tools, including legislative purpose and legislative history, in an effort to determine the intent of the legislature when it included a particular word or phrase in a statute."(33) Textualism, on the other hand, "refers to the use of a different set of tools, including dictionary definitions, rules of grammar, and canons of construction, in an effort to derive...