The Final Auer: How Weakening the Deference Doctrine May Impact Environmental Law

• Date: 01 October 2015

45 ELR 10954 ENVIRONMENTAL LAW REPORTER 10-2015

The Final Auer:

How Weakening

the Deference

Doctrine

May Impact

Environmental

Law

by Erica J. Shell

Erica J. Shell is a 2015 graduate of Wayne State University

Law School. While at Wayne State, she served as brief writer

and oralist on the ABA National Appellate Advocacy team

and the Jerey G. Miller Pace National Environmental

Moot Court team. At Pace, the Wayne State team was

awarded the David Sive Award for best overall brief. Ms.

Shell also served as the Managing Editor of Wayne State’s

. is Article won Honorable

Mention in the 2014-2015 Beveridge & Diamond

Constitutional Environmental Law Writing Competition.

Summary

roughout the past decade, the United States

Supreme Court has questioned the constitutionality

of aording deference to a federal agency’s interpre-

tation of its own regulations. is level of deference

originated with the Court’s 1945 opinion in Bowles

., and in 1997, the Court

reinvigorated Seminole Rock in Auer v. Robbins. e

impact of “Auer deference” has continued to grow

with the expansion of the administrative state. But the

intersection of a Supreme Court in ux with a presi-

dential administration that has proposed major new

environmental regulations may yet pose an opportu-

nity for the Court to revisit this fundamental doctrine

in administrative law.

I. Introduction

e status of judicial deference to an agency’s interpretation

of its own regulations has been in persistent u x since the

U.S. Supreme Court’s 1997 decision in Auer v. Robbins.1

Discontent stems in large part from two primary constitu-

tional defects in the deference doctrine: an absence of ade-

quate notice to regulated parties; and the exercise of both

legislative and judicial f unctions by administrative agen-

cies. Several current members of the Cour t have expressed

a desire to revisit Auer deference. e next decade could

see a variety of political changes as well as changes in the

Court’s composition, which could present an opportunity

to signicantly upend the landscape of environmental law.

New environmental regulations could set the stage for

a monumental change. e U.S. Environmental Protec-

tion Agency’s (EPA’s) current regulatory initiatives include

greenhouse gas emissions from mobile and stationary

sources, primarily under the Clean Air Act (CAA).2 With-

out Auer deference, EPA would likely have to satisfy the

more stringent requirements for Skidmore3 or Chevron4 def-

erence. Five current Justices have expressed some desire to

revisit Auer deference. Although the Court identies t hree

common justications for Auer deference, those pragmatic

justications cannot overcome Auer’s inherent constitu-

tional deciencies.

Part II of this Article explores the origins of Auer defer-

ence in Supreme Court precedent predating the Admin-

istrative Procedure Act (APA),5 principal ly Bowles v.

.,6 as well as criticism of the doc-

trine that predates its expansion in Auer. It also introduces

Auer and expands on contemporary criticisms of Auer by

the Supreme Court. Part III examines the Court’s most

recent relevant decision, Perez v. Mortgage Bankers Ass’n,7

where the Court addresses past criticism of deference doc-

trine. At the same time, the concurring Justices, Antonin

Scalia and Clarence omas, continued to emphasize their

desire to revisit Auer deference.8 Part IV explores several

implications for environmental litigation, EPA rulemak-

ing, and the APA generally. Part V concludes by identify-

ing considerations for future environmental regulation and

summarizing potential outcomes.

1. 519 U.S. 452 (1997).

2. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618. See U.S. EPA,

Regulatory Initiatives, http://www.epa.gov/climatechange/EPAactivities/

regulatory-initiatives.html (last visited Mar. 25, 2015).

3. Skidmore v. Swift & Co., 323 U.S. 134 (1944).

4. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 14

ELR 20507 (1984).

5. 5 U.S.C. §§500-559.

6. 325 U.S. 410 (1945).

7. 135 S. Ct. 1199, 1215, 45 ELR 20050 (2015).

8. See 135 S. Ct. at 1211 (Scalia, J., concurring in the judgment) and 1212

(omas, J., concurring in the judgment).

Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.