This note examines the motivations, biases and expectations of the major institutional players in the Chevron debate, ranging from OMB, to the academic community to federal litigators to legal practitioners and ultimately judges. The Chevron Debate concerns Chevron Deference which is a result of a Supreme Court ruling which declared that when courts review actions taken by federal regulators the courts should defer to the views of the regulators if the underlying statute is ambiguous and if the position of the regulator is reasonable.
Regarding the outcome of the aforementioned debate on Chevron sponsored by the Environmental Law Institute, the Center for Regulatory Effectiveness concludes that whereas the Administrative Law Bar examines governance issues through the lens of the Administrative Procedure Act, the Environmental Law Bar often views them through the lens of one or more of the underlying environmental statutes which results in the former usually presenting insightful views while the latter, in some instances, presenting self-righteous views which do not advance their position–a finding not applicable to the remarks of Professor Farber as set forth in the aforementioned debate.
As a basis for comparison consider, for example, the essence of the arguments in this article on Chevron which was written by two academicians who specialize in Administrative Law, the arguments in an article on Deference prepared by experts affiliated with the tax bar and those in an article on Chevron by a practitioner of Administrative Law. Lastly here is an article published by a leading administrative law academician whose arguments are virtually banished from the analyses published by members of the environmental bar.
Early exposure to the issue by the environmental bar does not connote ownership and responsible parties therein should both disclose and address conflicts with prevailing statutes, a topic which based on our review is seldom discussed in the literature, why? Analyses should also address the due process concerns associated with a blind implementation of Chevron.
Furthermore, if deference is to be accorded to agency interpretations should that decree come from the courts or the Congress? To this end, the zenith of environmental regulation was the decade between the early seventies and the early eighties which was marked by the absence of Chevron; how would have Chevron improved the resultant outcomes? In any event there is far from complete agreement that Chevron deference is the salvation of the administrative state.
The White House Office of Management and Budget, based on proposals from EPA, not only opined that the EPA Bubble Rule (the subject of the litigation which lead to Chevron deference) complied with Executive Order 12291 but also made clear that the EPA concept of a bubble was an integral part of the President’s regulatory reform program thereby providing encouragement for a robust legal defense by the Department of Justice. Since OMB’s endpoint of interest was preservation of the bubble, would OMB have encouraged Chevron deference given its oversight responsibilities set forth in Executive Order 12291 and subsequently its expanded oversight authorities as set forth in the Data Quality Act?
Cogent authors make a clear distinction between “what is” and “what should be”giving full recognition to the fact that the APA states: ” the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions….”.
It should be noted that some administrative law scholars believe that the substantial recognition accorded to Chevron in judicial proceedings carries over to agency rulemaking because attorneys no longer dominate the decision process since the governing question is no longer a binary choice of what is legal or not but instead the determination as to what “reasonable” policy can be tailored to fit into a Chevron deference. Other administrative law scholars are supportive of the Chevron deference because they believe most citizens have far greater access to federal regulators than they do the courts if they wish to obtain relief from a burdensome regulation.
Notwithstanding the impartiality of many in the administrative law bar there is a need for it to enhance the presence of administrative law in the management of the administrative state due to the constantly increasing level of adjudication in the agencies relative to the courts. This observation places into question the tunnel vision of those in the administrative law bar who emphasize course work related to judicial review relative to course work on compliance, centralized regulatory review and benefit-cost analysis.
The bottom line is that attorneys in the environmental bar believe that the heart of environmental law in particular and administrative law in general revolves around Chevron deference. On the other hand many attorneys in the administrative law bar, while divided over the merits of Chevron deference, take a less parochial stance by recognizing that the Republic will survive with or without a Chevron deference.
Most importantly, whether or not Chevron Deference is to continue, or not, is not a legal issue; instead it is a fundamental issue of public policy and should not be relegated to the catacombs of administrative procedure. The American public should not standby while the legal profession, be they environmental or administrative law attorneys, makes the call on this important issue. The public can be involved in this issue in any number of ways, by contacting:
(1) the attorney general within the state they reside and the National Association of Attorney Generals,
(2) local and national members of the press asking them to cover the issue,
(3) Members of Congress,
(4) US Department of Justice: Office of Legal Counsel, Office of Legal Policy,
(5) Office of Information and Regulatory Affairs (OIRA) located in the White House Office of Management and Budget,
(6) American Political Science Association, and
(7) social media.