The EPA in the age of chevron deference ambiguity and decline

• Pages: 269-301
• Date: 01 January 2024
• Published date: 01 January 2024
• Author: Alyssa Greenstein
• Subject Matter: Derecho Civil

The EPA in the Age of Chevron Deference Ambiguity

and Decline

ALYSSA GREENSTEIN*

ABSTRACT

In 1984, the Supreme Court decided Chevron, U.S.A. Inc. v. Natural Resources

Defense Council, Inc., dramatically changing the trajectory of administrative law

for decades to come. However, in recent years the Chevron doctrine has been on

the decline. The Supreme Court has not referenced Chevron by name in an opinion

since 2016. However, the Supreme Court has not yet overruled Chevron, even

when it has had the chance to in recent terms. Instead, the Court has remained

silent, leaving agencies hanging in the balance. This Note aims to answer questions

arising from the current state of Chevron ambiguity and decline with a particular

focus on the EPA. The Note will address whether the Supreme Court’s shift regard-

ing Chevron affects how the EPA drafts briefs and promulgates rules and what the

EPA should do in the future in anticipation of further Chevron decline, especially

at the Supreme Court. The Supreme Court off‌icially overruled Chevron in Loper

Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce

in June 2024, after substantive work on this Note was complete.

This Note begins to answer these questions through a qualitative analysis of

both case examples and EPA rules. The Note will provide background in Part I

about both the success and recent decline of the Chevron doctrine generally, and

more specif‌ically within the EPA. Part II will analyze how both litigation and

rulemaking at the EPA have potentially changed with regard to Chevron since the

last time the Court found Chevron deference in 2016. Part III argues that the

EPA should continue to make changes to its rule drafting and proposes potential

substantive and procedural changes that the agency should make at the drafting

phase if its goal is to make aggressive agency actions that survive judicial review.

The Note concludes with a look ahead to the future in a post-Chevron world.

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270

I. The History of Chevron in Courts and at the EPA . . . . . . . . . . . . . . . . . 271

* Georgetown Law, J.D. 2024; George Washington University, B.S. December 2020. The author

would like to thank Professor Victoria Nourse for her helpful feedback, thoughtful comments, and

revisions throughout the writing process. © 2024, Alyssa Greenstein.

269

A. Background on Chevron Deference . . . . . . . . . . . . . . . . . . . . . . . 272

1. The Rise and the Fall of Chevron Deference. . . . . . . . . . . . . . . 272

2. Chevron Deference at the Supreme Court Today . . . . . . . . . . . 274

B. Chevron Deference and the EPA . . . . . . . . . . . . . . . . . . . . . . . . . 279

II. How the EPA has Adjusted to the Decline of Chevron .............. 280

A. How the EPA’s Briefs have Changed Over Time . . . . . . . . . . . . . . 280

1. Clean Air Act § 209 California Waiver . . . . . . . . . . . . . . . . . . . 281

a. The 2013 Waiver ............................. 282

b. Withdrawal of the 2013 Waiver ................... 283

c. Ohio v. EPA and Restoration of the 2013 Waiver ...... 284

2. Clean Air Act § 211 .................................. 286

a. Hermes Consolidated, LLC v. EPA . . . . . . . . . . . . . . . . 287

b. Sinclair Wyoming Ref‌ining Company v. EPA . . . . . . . . 287

c. HollyFrontier Cheyenne Ref‌ining, LLC v. Renewable

Fuels Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288

i. The Tenth Circuit Decision . . . . . . . . . . . . . . . . . . 289

ii. HollyFrontier at the Supreme Court . . . . . . . . . . . . 290

B. How Rulemaking has Changed: the Recent Silence on Chevron . . . 291

1. EPA Rules During the Obama Administration ............. 293

2. EPA Rules During the Biden Administration .............. 294

III. How the EPA Should Draft Rules Going Forward . . . . . . . . . . . . . . . . . 295

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301

INTRODUCTION

In 1984, the Supreme Court decided Chevron, U.S.A. Inc. v. Natural Resources

Defense Council, Inc., dramatically changing the trajectory of administrative law

for decades to come.

1

By the 1990s, the familiar Chevron two-step framework

was a cornerstone of administrative law doctrine, one which agencies increas-

ingly relied on to justify courts giving deference to their actions.

2

But the domi-

nance of Chevron has come into question in recent years as the Court grows more

resistant to the administrative state, leaving agencies that rely on Chevron in

limbo.

3

See James Kunhardt & Anne Joseph O’Connell, Judicial Deference and the Future of Regulation,

BROOKINGS (Aug. 18, 2022), https://perma.cc/L2XV-SJKS.

Chevron is still good law, but how much longer will it stand a chance of

winning the day in the appellate courts? The dubious state of the Chevron doc-

trine affects agencies on the back end of their actions in litigation over such

action, but also affects the front end of agency action in rule drafting. What are

agencies doing now given the decline of Chevron? What should they do in the

future?

1. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

2. Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, 66 ADMIN. L.

REV. 253, 276 (2014) [hereinafter Merrill].

3.

270 THE GEORGETOWN ENVTL. LAW REVIEW [Vol. 36:269

With particular focus on the Environmental Protection Agency (EPA), this

Note sheds light on these questions by analyzing the rise and fall of Chevron def-

erence, exploring where Chevron stands now, and looking to its future. Part I pro-

vides background about both the success and recent decline of the Chevron

doctrine generally, and more specif‌ically within the EPA. Part II analyzes how lit-

igation and rulemaking at the EPA have changed since the last time the Court

granted Chevron deference in 2016. First, Part II.A uses two case studies of § 209

of the Clean Air Act (CAA) and § 211 of the CAA to highlight how the EPA’s lit-

igation strategy has changed as the Court’s adherence to the Chevron doctrine

has diminished. Part II.B shows how the EPA’s rulemaking has changed thus far

as Chevron deference dwindles. Part III posits potential substantive and proce-

dural changes that the EPA should make at the rule drafting phase to rely less on

Chevron so that the agency’s actions are both challenged less and more likely to

survive judicial review. Part IV concludes, explaining that if the EPA wants

aggressive agency action to survive judicial review in the future, it should con-

sider making changes—like the ones presented in this Note—to its rule drafting

process.

I. THE HISTORY OF CHEVRON IN COURTS AND AT THE EPA

Chevron, decided in 1984, announced a new two-step framework for granting

deference to an agency’s action when the agency interprets its governing statute.

4

Under this framework, courts f‌irst ask at Chevron step one “whether Congress

has directly spoken to the precise question at issue.”

5

“If the intent of Congress is

clear,” then the inquiry stops there, and the agency “must give effect to the unam-

biguously expressed intent of Congress.”

6

However, if a court determines that the

statute is ambiguous, then it must move on to step two and ask whether the

agency has reasonably interpreted the statute.

7

“[A] court may not substitute its

own construction of a statutory provision for a reasonable interpretation made by

the administrator of an agency” at step two.

8

In the years following Chevron, the

two-step doctrine expanded exponentially, becoming a hallmark of administra-

tive law that many governmental agencies, including the EPA, have continuously

relied on to justify their rulemaking and adjudicatory actions.

9

4. Chevron, 467 U.S. at 842–44.

5. Id. at 842.

6. Id. at 843.

7. Id.

8. Id. at 844.

9. See Kunhardt & O’Connell, supra note 3 (f‌inding that many Obama-era EPA rules cite heavily to

Chevron, whereas Chevron has only been mentioned in three EPA rules during the f‌irst two years of the

Biden administration); see also Stephen M. Johnson, The Brand X Effect: Declining Chevron Deference

for EPA and Increased Success for Environmental Groups in the 21st Century, 69 CASE W. RES. L. REV.

65, 67, 69, 83–85 (2018) (citing empirical studies that found a high success rate for the EPA in Chevron

cases in the 1990s).

2024] CHEVRON DEFERENCE AMBIGUITY AND DECLINE 271