With friends like these: the trouble with Auer deference.

• Author: Mensher, Daniel

1. INTRODUCTION II. THE MANY DOCTRINES OF DEFERENCE A. Agency Interpretations B. Development of Deference to Agency Statutory Interpretations C. Development of Deference to Agency Regulatory Interpretations III. WHAT TO DO WITH AUER IV. THEORIES OF DEFERENCE V. A NEW WAY TO SEE DEFERENCE TO STATUTORY INTERPRETATIONS VI. REPLACING AUER A. Decker and the Trouble with Surprise B. SmithKline Beacham--Heads You Win, Tails I Lose C. Waters of the United States Guidance VII. CONCLUSION I. INTRODUCTION

   Of the issues raised by the Supreme Court's recent decision in Decker v. Northwest Environmental Defense Center ("Decker"), (1) the one that elicited the most excited commentary--other than, perhaps, the Chief Justice's use of the contraction "don't" (2) was the Court's decision to give controlling weight to the Environmental Protection Agency's (EPA) interpretation, offered in the agency's amicus brief, of its regulations. (3) No doubt it was the withering attack Justice Scalia aimed at this so-called "Auer deference" (4) and the Chief Justice's invitation for future parties to seek to overturn Auer v. Robbins (Auer), (5) that piqued the interest in this issue. (6) But, it is also the starkness of the facts in Decker that makes the issue of deference to agency interpretations of regulations so compelling. Although the deference doctrine has been part of Supreme Court jurisprudence for nearly seventy years, rarely has the power of Auer deference been so clearly displayed. Decker should be a call for courts to revisit and revise their approach to deferring to agency interpretations of regulations.

   In Decker, an environmental group brought suit against several logging companies and the State of Oregon under the Clean Water Act (CWA) (7) for their unpermitted discharges of polluted stormwater from logging roads. (8) Under the CWA, stormwater "discharge associated .with industrial activity" is illegal unless authorized by a permit. (9) In its "Industrial Stormwater Rule," EPA defined the scope of "industrial activity" that would be subject to the permit requirement. (10) That rule explicitly included the "logging" industry in the list of sectors falling within the CWA's regulatory ambit. (11) The rule also clarified that "industrial activity" extended beyond the sites of activities themselves and included access roads associated with those activities. (12) NEDC argued that, pursuant to these regulations, discharges of stormwater from the extensive drainage systems of logging roads required permits. (13)

   Three months after NEDC filed its complaint, EPA submitted an amicus brief in support of the defendants' motion to dismiss, arguing that its rule did not cover stormwater from logging operations. (14) The agency argued that, despite the fact that the rule identified logging as a regulated industrial sector, the agency actually meant only to include facilities--such as lumber mills--not the actual logging operations at issue in the case. (15)

   Although this was the first time EPA had ever articulated this construction of its regulation, the majority of the Court deferred to EPA's interpretation with little apparent hesitation. (16) Under the Auer doctrine, the Court deferred because EPA's interpretation of its rule was not "plainly erroneous." (17) Justice Scalia, alone in dissent, argued that the regulation plainly applied to "logging" and "tree cutting," and thus the rule was clear and the defendants were liable for discharging industrial stormwater without a permit. (18) Deferring to EPA's interpretation, Scalia explained, was simply wrong. (19) In so doing, Justice Scalia took aim at Auer itself, arguing that, in effect, Auer deference allows agencies not just to write federal law via regulations, but also to stand in the federal courts' shoes and interpret what those regulations mean. (20) By allowing an agency to write and interpret federal law, he argued, Auer contravenes the separation of powers enshrined in the Constitution and undermines democratic governance. (21) In an odd four-paragraph concurrence, the Chief Justice and Justice Alito also expressed their willingness to overturn Auer but chose to wait for a case in which the issue was more fully briefed. (22)

   Auer deference, also known as Seminole Rock deference, (23) has existed for nearly seventy years. (24) In that time, few courts or scholars have questioned its wisdom. (25) Indeed, its application often seems like common sense. (26) But in Decker, the doctrine's power and unfairness are displayed in full force. NEDC brought a lawsuit based on a plain reading of the regulatory text. (27) Yet when EPA entered the case as amicus curiae, the only thing that mattered was EPA's interpretation of its regulations. (28) This case shows the overwhelming power of Auer, and it is time to explore the wisdom and foundation of the doctrine.

2. THE MANY DOCTRINES OF DEFERENCE

   The starkness of the facts in Decker suggests something is off-kilter with Auer deference. For an agency's interpretation of its own regulations to control unless "plainly erroneous"--no matter the context in which the interpretation is offered--is, indeed, a downright "indulgent" standard. (29) As Decker demonstrates, it is also unfair.

   To understand Auer deference fully and appreciate its uniqueness, it must be examined in the broader context of deference federal courts give to agency actions. Over the last seventy years, as the role of agencies in our federal government has grown, administrative law has developed into an enormous body of law. (30) In particular, since the Supreme Court decided Skidmore v. Swift & Co. ("Skidmore") (31) in 1944, the role of agencies in making and interpreting law has become a complex and critical part of federal law. (32) The level of deference a court assigns to agency interpretations is often, as it was in Decker, the deciding factor in litigation. (33)

   But the doctrines that govern deference to agency actions are not self-evident; there is no constitutional mandate that courts defer to agency interpretations. (34) Indeed, it is not clear from the face of the Constitution that an entity other than Congress can make laws, (35) and it appears the Constitution reserves to the courts the power to interpret those laws. (36) Yet federal agencies routinely make and interpret federal law through their delegated authority. (37) Only by reviewing the development of this jurisprudence does the Court's current approach to dealing with agency actions become understandable.

   While the narrow goal of this Article is to develop a more logical and fair way for courts to treat agency interpretations of their own rules, it ultimately suggests a slightly different way to conceptualize deference doctrines in general. Such a reconceptualization not only points the way to a new Auer standard, but also may in fact bolster the rationales for deferring to agency interpretations of statutes.

   1. Agency Interpretations

      Before delving into the history of deference, it is important to set out clearly the two types of agency interpretive actions on which this Article focuses. The first category is when an agency interprets a statute. Such statutory interpretation can come in various forms, including regulations derived from notice and comment rulemaking, adjudications, and informal opinion letters or memoranda. (38) In whatever form it takes, the agency is offering its interpretation of a federal statute. The second category of agency actions is when an agency interprets a regulation. In this context, rather than interpreting statutory language written by Congress, the agency is interpreting regulatory text written or promulgated by a federal agency. Again, such interpretations can come in many different contexts, including official guidance documents, websites, or amicus briefs. (39) To keep the two contexts separate and distinct, I refer to the first as "statutory interpretation" and the second as "regulatory interpretation"

   2. Development of Deference to Agency Statutory Interpretations

      Although rarely cited, the earliest instances of judicial deference to agency interpretations of law date back to the 19th Century. (40) In 1877, for example, the Supreme Court treated the Navy's interpretation of a statute setting pay grades for naval surgeons with special respect. (41) The Court explained that "[t]he construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration, and ought not to be overruled without cogent reasons." (42) The Court justified this "respectful consideration" because "[t]he officers concerned are usually able men, and masters of the subject." (43)

      In other cases in the early 20th century the Court continued its general approach of deferring to agency statutory interpretations. (44) Importantly, these cases involved statutes that explicitly delegated authority to an agency to craft rules or regulations on particular subjects. (45) In Atchison, Topeka and Santa Fe Railway. Co. v. Scarlett (Scarlett), (46) for example, Congress specifically empowered the Interstate Commerce Commission to promulgate rules regulating railcar designs under the Federal Safety Appliance Act. (47) The Court explained that the "regulation having been made by the commission in pursuance of constitutional statutory authority, it has the same force as though prescribed in terms by the statute." (48) As a result, the Court deferred to the agency's regulation, giving it controlling weight. (49) Indeed, in these early cases, the Court offered significant latitude to agencies in crafting rules, explaining that to overturn a rule, the court must find an agency's action to "be so entirely at odds with fundamental principles of [law] as to be the expression of a whim rather than an exercise of judgment." (50) In short, a court is "not at liberty to substitute its own discretion for that of administrative officers who have kept within...