Pub. 7 2017 Issue 1

18 AT THE CENTER OF UTAH INDUSTRY By Stephen W. Smithson Should Congress End Agency Deference? A t its core, agency deference – as enshrined in the United States Supreme Court’s decision, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) – is both reasonable and necessary. Indeed, in City of Arlington v. FCC, 133 S.Ct. 1863, 1868 (2013) (citations omitted), Justice Scalia explained why the Supreme Court adopted Chevron deference, and why that deference is often desired by Congress: ‘When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions.’ First, applying the ordinary tools of statutory construction, the court must determine ‘whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.’ But ‘if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.’ “Chevron is rooted in a background presumption of congressional intent: namely, ‘that Congress, when it left ambiguity in a statute’ administered by an agency, ‘understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.’ Chevron thus provides a stable background rule against which Congress can legislate: statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency. Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion. Justice Scalia believed that Congress understood that it often lacks the technical expertise to “circumscribe” precise requirements in the statutes that it enacts. Rather, Justice Scalia believed that Congress intentionally leaves ambiguities in its legislation, confident in the knowledge that administrative experts, rather than the courts, will resolve those ambiguities. Over the intervening years, the mining industry frequently has benefitted from Chevron deference. In particular, any time a mine needs to defend a permit against challenge, its interests are aligned with those of the agency that issued the permit, and it will likely use agency deference as a defense to the challenge. Without agency deference, it would be significantly more difficult to protect permits from challenge. Notwithstanding the merits of Chevron deference, agency deference also has rightfully received considerable criticism. In part, this is because courts have shown Chevron deference even where an agency’s decision-making has been less than rigorous. This had led to both complacency and smugness in agencies, as they have come to “know” that they will receive deference. In turn, this has led to the agencies sometimes cutting corners in their decision-making. More recently, however, the Supreme Court has begun to curtail the scope of Chevron deference. For instance, in Michigan v. EPA, 135 S.Ct. 2699 (2015), the Court refused to grant deference to the EPA, finding that EPA’s statutory interpretation was simply unreasonable. In light of this tension regarding the scope of agency deference, on January 11, 2017, the House of Representatives passed the “Regulatory Accountability Act of 2017.” As passed, the Act would make a number of changes to federal administrative law, including a repeal of Chevron deference. In particular, the Act would amend 5 U.S.C. § 706, by directing federal courts to: [D]ecide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies. If the reviewing court determines