Pub. 7 2017 Issue 1

19 MINING FOCUS DENISE DRAGOO | 801.257.1998 | DDRAGOO@SWLAW.COM GATEWAY TOWER WEST | 15 WEST SOUTH TEMPLE | SUITE 1200 | SALT LAKE CITY, UT 84101 DENVER | LAS VEGAS | LOS ANGELES | LOS CABOS | ORANGE COUNTY | PHOENIX | RENO | SALT LAKE CITY | TUCSON www.swlaw.com Understanding what makes you unique. ® Because not all solutions are black and white. TM Celebrating 25 Years of Service in Utah that a statutory or regulatory provision relevant to its decision contains a gap or ambiguity, the court shall not interpret that gap or ambiguity as an implicit delegation to the agency of legislative rule making authority and shall not rely on such gap or ambiguity as a justification either for interpreting agency authority expansively or for deferring to the agency’s interpretation on the question of law. Notwithstanding any other provision of law, this subsection shall apply in any action for judicial review of agency action authorized under any provision of law. No law may exempt any such civil action from the application of this section except by specific reference to this section. Thus, the Act recognizes that ambiguities exist in federal statutes; indeed, it appears to recognize that those ambiguities are often intentional. But, instead of relying on administrative experts to resolve those ambiguities, the Act directs the courts to consider the legal ambiguities de novo – that is, to consider them as if no one else had done so previously. Effectively, this would place the courts in the position of actively making law because they would have to “circumscribe” precise requirements that Congress itself failed to provide. As noted by Justice Scalia, it was to avoid this situation that the Supreme Court enunciated the Chevron deference standard 33 years ago, and has repeatedly upheld it over the intervening years. To date, the Senate has not acted on the Act, other than to refer it to committee on January 12. Perhaps, the Senate should amend the language of the Act, rather than to adopt it. As is, the Act is more a sledge-hammer than a scalpel. In an effort to correct the problems with agency deference, the Act also destroys all that is useful about deference. Perhaps, the Senate should take guidance from the Supreme Court’s recent agency deference decisions, and should pare back the excesses of agency deference, while leaving the core intact. For instance, some reasonable limitations that Congress might enact, while preserving the core of agency deference, are: • Require that the courts weigh the credibility of agency experts, and of any other experts who may be challenging an agency decision. In this regard, if an agency does not provide compelling expert opinion, why should the agency receive deference? • Require that courts only grant agency deference in areas of actual agency expertise. Thus, if the EPA decides to regulate the electrical energy grid, should it receive deference? X Stephen W. Smithson is an attorney in the Salt Lake City office of Snell & Wilmer. He has 25 years of experience practicing environmental and natural resources law, with a particular interest in air issues.