Are We Facing the Decline of Chevron Deference and an Article III Renaissance?

No one knows yet precisely what Bannon’s “deconstruction” phrase means, but a concurrence to the D.C. Circuit’s decision this week in Waterkeeper Alliance v. EPA indicates that courts may soon play a greater role in statutory interpretation. The court said specifically that “[a]n Article III renaissance is emerging against the judicial abdication performed” under the authority of Chevron, USA, Inc. v. NRDC, Inc., which holds that a “reasonable agency interpretation [of a statute within the agency’s jurisdiction] prevails.”

Waterkeeper Alliance addressed a situation in which the Environmental Protection Agency (EPA) interpreted the relevant statutes in one way, but the court had another perspective. The case addressed a 2008 EPA rule that generally exempted farms from federal reporting requirements for air from animal waste even though the relevant statutes, Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) had reporting mandates. The EPA had proposed exempting all farms from reporting air releases from animal wastes, based on its determination that notifications would “serve no regulatory purpose, because it would be ‘impractical or unlikely’” that the EPA would respond to the information. In the EPA rulemaking and before the court, commenters – some of whom later became petitioners – hinged their arguments on the informational benefits the statutes provided to them and how the information furthered the purposes of the statutes.

The D.C. Circuit majority vacated the EPA’s final rule for three related reasons: 1) that neither CERCLA nor EPCRA delegated broad authority to the EPA; 2) that the EPA could not use efficiencies “to ignore the statute whenever it decides that reporting requirements aren’t worth the trouble”; and finally, 3) that the agency was not permitted to set aside reporting requirements based on finding the reporting was not relevant to the EPA. This opinion comes as no surprise to those who regularly follow administrative practice.

But the concurrence by Judge Janice Rogers Brown goes one step further and makes two noteworthy points:

1. It emphasizes that – absent ambiguity in the statute – agencies have no discretion to engage in regulatory gap-filling.
2. It uses the “Article III renaissance” language quoted above to emphasize that courts should reassert their primary role in statutory interpretation where there is no statutory ambiguity.

Judge Brown cites the following passage from the Tenth Circuit’s 2016 decision in Guiterrez-Brizuela v. Lynch. That opinion (authored by then-judge, now U.S. Supreme Court justice, Neil Gorsuch) states: “For whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law.”

There’s a possibility that, with Gorsuch’s elevation, the “Article III renaissance” may be gaining support. Does a “judicial renaissance” mean agency decline? Stay tuned for more observations about the decline in Chevron deference and the “deconstruction of the administrative state.”