By Grimaldi Law Offices Associate Jennifer Singh
The Chevron doctrine, a central principle of modern administrative law named for the 1984 case Chevron USA, Inc. v. Natural Resources Defense Council, stands for the proposition that when a law that a federal agency oversees is not clear, courts will generally accept the agency’s interpretations of that law as long as the interpretation is reasonable. One basis for the doctrine is the idea that agency decision makers – not judges – are in the best position to understand and interpret technical and complex minutia relating to agency decisions. Although the judicial deference established by Chevron has defined administrative law for decades, it is now vulnerable to a sea change, including scrutiny for purportedly giving federal agencies undue power and sabotaging judges’ constitutional responsibility to interpret the law.
Most recently in Kisor v. Wilkie (No. 18-15), 588 U.S. ___ (2019), the Supreme Court reviewed and narrowed a related doctrine of administrative law known as Auer deference, which came from the Supreme Court’s 1997 holding in Auer v. Robbins. Similar to Chevron, Auer deference instructs that agency interpretations of their own regulations are entitled to deference unless the interpretation is plainly inconsistent with the regulatory text. And much like Chevron, Auer deference has brought on heavy criticism from groups that believe it grants agencies too much power.
The Kisor case arose out of a dispute over benefits for a Marine who served and was later diagnosed with post-traumatic stress disorder. In short, the U.S. Department of Veterans Affairs denied Kisor’s request to make his benefits retroactive based on the Board of Veterans’ Appeals’ (“Board”) interpretation of “relevant” records. Bound by Auer to defer to the Board, the Federal Court of Appeals affirmed the Board’s interpretation and denial of retroactive benefits.
On review, the Supreme Court refused to overturn Auer deference, acknowledging that the doctrine “pervades the whole corpus of administrative law” and reversing it would “cast doubt on many settled constructions of rules.” Nevertheless, it determined that the Circuit Court was hasty in granting deference to the VA and sent the case back for additional proceedings. Going one step farther, the Supreme Court emphasized the importance of the court’s role as interpreter of laws and explicitly limited the use of Auer deference to scenarios where specific conditions are met.
While Auer deference lives on, this careful pruning by the Supreme Court could be seen as a move toward a less deferential judicial approach toward federal agencies, which could diminish agency power and transfer it to the courts. If that is the case, Chevron may well be a future target of similar efforts, which would have a widespread impact on environmental laws and their implementation. Time will tell.
Grimaldi Law Offices has been advising clients for over 20 years on chemical and product regulation. For knowledgeable advice and in-depth analysis on your chemical regulatory compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].
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