As President-elect Joe Biden and Vice President-elect Kamala D. Harris plan their administration, it is expected to take aggressive action in a number of federal environmental policy areas, particularly on climate issues. Biden’s climate agenda includes a bold pledge to achieve a U.S. goal of 100% clean energy and net-zero emissions no later than 2050.
To get there, major federal legislative and executive branch actions would likely be needed across a wide range of federal programs. The Senate may very well remain in Republican control, placing an obvious limit on the reach of Biden’s legislative efforts, even with a Democratic majority in the House.
At the same time, U.S. Supreme Court doctrine in federal administrative law and the court’s potential reappraisal of key precedents governing the modern administrative state may constrain the scope of Biden’s executive branch moves. In other words, Biden’s administration may find itself in a classic catch-22.
We examine the status and evolving trends in the Supreme Court’s review of federal administrative agency decisions included in the court’s Auer and Chevron doctrines, which provide much of the road map for how and when federal courts provide deference to agencies. The Skidmore doctrine also addresses courts’ review and treatment of less formal agency interpretations and agency documents, but provides less deference. In addition, we examine how the court may review Biden’s executive orders.
Under Auer v. Robbins, the Supreme Court held in 1997 that a federal agency is entitled to deference in interpreting its own rules if the rules are ambiguous.
Most recently, in 2019, the court in Kisor v. Wilkie reaffirmed Auer, explaining that “Auer deference retains an important role in construing agency regulations,” while noting its limits. The court explained that there must be genuine ambiguity; the court must have exhausted all of its traditional tools of construction before providing deference; and the agency rule must be reasonable.
Four justices indicated that they would have overturned Auer, including Justice Brett Kavanaugh. In a concurring opinion, Justice Neil Gorsuch argued at length why Auer should be rejected. As a preview for Chevron challenges, Gorsuch also noted that there are “serious questions” whether Chevron is constitutional and comports with the federal Administrative Procedure Act (APA).
The better-known Chevron doctrine is premised on the concept that ambiguity in a statute amounts to an implicit delegation from Congress to the agency to fill in statutory gaps with a reasonable agency interpretation.
The two-step Chevron analysis was articulated by the Supreme Court in 1984 in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. Under Chevron step one, the court must decide whether Congress expressed its intent in the statute, and if so, whether its intent is ambiguous.
If the congressional intent is clear, then the inquiry ends and agencies must perform Congress’ unambiguously expressed intent. If the intent of Congress is ambiguous or if the statute lacks direct language on the issue, then the court must determine whether the agency interpretation is based on a permissible statutory construction that is not arbitrary, capricious, or clearly contrary to the statute.
Under Chevron step two, in assessing the agency’s construction of the statute, the court must determine whether Congress’ decision to leave statutory ambiguity was done explicitly or implicitly. If the decision to leave ambiguity was explicit, then the agency’s regulations are binding unless they are arbitrary, capricious, or manifestly contrary to the statute. If the decision was implicit, the court cannot substitute is own statutory construction so long as the agency’s interpretation is reasonable.
In addition to Gorsuch, Kavanaugh has expressed skepticism toward Chevron as well. In a 2016 Harvard Law Review article, he noted Chevron “has no basis in the [APA]” and “[i]n many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.” Justice Clarence Thomas also cast doubt on Chevron in his Michigan v. EPA concurrence.
The addition of Justice Amy Coney Barrett, known as a textualist, to the court creates further uncertainty for the future of Chevron and could provide a decisive vote.
Biden Executive Orders
The current makeup of the Supreme Court—with some justices expressing skepticism as to aspects of executive branch power—also raises questions concerning potential challenges to executive orders issued by Biden and challenges to agency interpretations of them. Historically, the court has struck down executive orders it has found to be issued without proper authority.
Court challenges to Biden administration executive branch moves—where Biden would seem to have the most power to advance major environmental policy changes—could reach the Supreme Court at the exact time the court has the votes to re-evaluate key agency deference precedents.
This adds a measure of uncertainty to Biden’s environmental strategy as his transition unfolds.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Jason S. Lichtstein, a partner in Akerman LLP’s environmental practice in Tallahassee, Fla., focuses on cleanup and redevelopment of brownfields and other contaminated sites, and includes a broad range of environmental transactional, environmental regulatory compliance, and state incentives and policy matters. He is past president of the Florida Brownfields Association.
Michael J. Larson, a litigation partner in Akerman LLP’s Tallahassee, Fla., office, advises on environmental and land use law matters. He assists with the cleanup, reuse, repurposing, and redevelopment of brownfields and other contaminated or distressed properties, including addressing and developing solutions for a range of environmental issues.