Chevron and Auer Deference: Implications for the Administration’s Climate Change Initiative

In reference to a number of reader inquiries regarding Tozzi v HHS we offer the following:

Tozzi v HHS resulted in three key decisions:

(1) The plaintiff need not demonstrate direct causation; instead they can suffer harm through indirect causation, and

(2) The issuance of a standalone report can be a final agency action and thus judicially reviewable, and

(3) An extremely strong statement on the deference to be accorded to agency interpretations of its own regulations.

At the time of the litigation CRE was extremely interested in # 2 because it demonstrated that a report outside a regulation can, under certain circumstances, be reviewable. However it also demonstrated the high hurdles that one needs to go through to get a standalone report reviewed in the courts and thus became Exhibit 1 in the need for the Data Quality Act.

A question to be examined is whether the deference accorded to an agency interpretation of its own regulations ( Auer deference ) as set forth in Tozzi is greater than the deference accorded to its interpretation of its own legislation as set forth in Chevron. Some of our readers state that the deference accorded in Tozzi is far greater than that contained in Chevron but nonetheless will be applicable to future litigation in the DC Circuit.

Consider, for example the following statements in the opinion:

“….we agree with the district court that, given the deference owed an agency’s interpretation of its own regulations, the Secretary acted neither arbitrarily nor capriciously.”

Indeed, we give the agency’s interpretation “controlling weight.”

We wonder if this new found interest in Tozzi is related to this recent post: CRE Option for Controlling Emissions from New Coal Fired Plants in that in any resultant litigation, which would likely occur in the DC Circuit because of its jurisdiction over Clean Air Act issues, both OMB and EPA DQA regulations would not only be accorded an Auer deference but would also be buttressed by the Prime Time decision.

Bottom Line: The Administration’s Climate Change program for new coal fired plants would be virtually litigation-proof if it were to adopt the CRE option.

Background Material

Judicial Citations of Tozzi v HHS

Raul and Zampa, Deeper Judicial Scrutiny Needed for Agencies’ Use of Science, Washington Legal Foundation

Yan, Standing as a Limitation on Judicial Review of Agency Action, Ecology Law Quarterly

O’Reilly, Libels on Government Websites, Administrative Law Review

Claybrook, Prejudice, and Prejudging in Bid Protest Cases, Public Contract Law Journal

Raul and Dwyer, Regulatory Daubert, Law and Contemporary Problems

Auer Healy

McDermott EPA

ABA Deference

CRE Prime Time

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