Amicus Curiae Brief — James L. Kisor, Petitioner v. Robert Wilkie, Secretary of Veterans Affairs

Supreme Court briefJan 31, 2019

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No. 18-15

In The Supreme Court of the United States

__________________________________

JAMES L. KISOR,

Petitioner,

ROBERT L. WILKIE, SECRETARY OF VETERANS AFFAIRS,

Respondent.

__________________________________

On Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

__________________________________

BRIEF OF AMICUS CURIAE

UTILITY AIR REGULATORY GROUP

IN SUPPORT OF PETITIONER

__________________________________

Nash E. Long, III

HUNTON ANDREWS KURTH LLP

Bank of America Plaza,

Suite 3500

101 South Tryon Street

Charlotte, NC 28280

(704) 378-4700

Elbert Lin

Counsel of Record

HUNTON ANDREWS KURTH LLP

951 East Byrd Street,

East Tower

Richmond, VA 23219

elin@HuntonAK.com

(804) 788-7202

F. William Brownell

Henry V. Nickel

HUNTON ANDREWS KURTH LLP

2200 Pennsylvania Ave., N.W.

Washington, DC 20037

(202) 955-1500

January 31, 2019

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF CONTENTS .............................................. i

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT................................................................ 4

Congress gives Executive Branch

agencies the power to bind regulated

parties by implementing laws, not by

interpreting them........................................... 4

II.

This Court’s application of Chevron

deference reflects the distinction

between implementation of law and

interpretation of law ...................................... 7

III. Auer ignores the line between

interpretation and legislative

rulemaking ................................................... 11

IV. Overruling Auer does not require

overruling Chevron ...................................... 19

CONCLUSION .......................................................... 22

TABLE OF AUTHORITIES

Page

Federal Cases:

Auer v. Robbins, 519 U.S. 452 (1997) ......................... 2

Bowen v. Georgetown Univ. Hosp., 488 U.S.

204 (1988) ............................................................. 22

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) ........................ passim

Christensen v. Harris Cty., 529 U.S. 576

(2000) ................................................................ 9, 16

City of Arlington v. FCC, 569 U.S. 290 (2013) ......... 10

CSX Transp., Inc. v. Ala. Dep’t of Revenue,

562 U.S. 277 (2011) .............................................. 10

Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597

(2013) .................................................................. 5, 6

ExxonMobil Pipeline Co. v. U.S. Dep’t of

Transp., 867 F.3d 564 (5th Cir. 2017) ........... 16, 17

Gonzales v. Oregon, 546 U.S. 243 (2006) .............. 9, 17

Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144 (1991) ............ 9, 20, 21

Michigan v. EPA, 135 S. Ct. 2699 (2015) ... 8, 9, 10, 16

Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29 (1983)........................ 19

iii

Nationwide Mut. Ins. Co. v. Darden, 503 U.S.

318 (1992) ............................................................. 21

Perez v. Mortg. Bankers Ass’n, 135 S. Ct.

1199 (2015) ................................................... 5, 6, 18

Prill v. Nat’l Labor Relations Bd., 755 F.2d

941 (D.C. Cir. 1985) ............................................. 19

SEC v. Chenery Corp., 332 U.S. 194 (1947) ............... 5

Strickland v. Comm’r, Me. Dep’t of Human

Servs., 48 F.3d 12 (1st Cir. 1995) ........................ 10

Tenn. Valley Auth. v. Hill, 437 U.S. 153

(1978) .................................................................... 20

Thomas Jefferson Univ. v. Shalala, 512 U.S.

504 (1994) ............................................................. 22

United States v. Ameren Missouri, No. 4:11

CV 77 RWS, 2016 WL 728234 (E.D. Mo.

Feb. 24, 2016) ....................................................... 16

United States v. DTE Energy Co., 711 F.3d

643 (6th Cir. 2013) ................................... 13, 14, 15

United States v. DTE Energy Co., 845 F.3d

735 (6th Cir.), cert. denied, 138 S. Ct. 555

(2017) .............................................................. 14, 15

United States v. Duke Energy Corp., 981 F.

Supp. 2d 435 (M.D.N.C. 2013) ............................. 16

United States v. Mead Corp., 533 U.S. 218

(2001) .................................................................... 21

Federal Statutes:

5 U.S.C. §§ 500 et seq. ................................................. 7

5 U.S.C. § 551(4) .......................................... 4, 5, 21, 22

5 U.S.C. § 553(b)(A) ..................................................... 6

5 U.S.C. § 706 ............................................................ 18

5 U.S.C. § 706(2)(A) ............................................... 7, 19

42 U.S.C. § 7411(a)(2) ............................................... 11

42 U.S.C. § 7411(a)(4) ............................................... 11

42 U.S.C. § 7412(n)(1)(A) ............................................ 9

42 U.S.C. § 7413 ........................................................ 11

42 U.S.C. § 7601(a) ................................................ 5, 11

Federal Regulations:

38 C.F.R. § 3.156(c)(1) ............................................... 12

40 C.F.R. § 52.21(a)(2)(iv)(a) ..................................... 12

40 C.F.R. § 52.21(b)(41)............................................. 12

40 C.F.R. § 52.21(b)(41)(ii)(a).................................... 12

40 C.F.R. § 52.21(b)(41)(ii)(c) .................................... 12

40 C.F.R. § 52.21(r)(6)(ii) .......................................... 13

40 C.F.R. § 52.21(r)(6)(iii) ......................................... 13

40 C.F.R. § 52.21(r)(6)(iv).......................................... 13

Federal Register:

57 Fed. Reg. 32,314 (July 21, 1992) .......................... 14

63 Fed. Reg. 39,857 (July 24, 1998) .......................... 13

Other Authorities:

Attorney General’s Manual on the Administrative Procedure Act (1947) ................................. 8

Black’s Law Dictionary (10th ed. 2014).................. 3, 5

Manning, John F., Constitutional Structure

and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L.

Rev. 612 (1996)................................... 17, 18, 21, 22

Opening Br. for Pl.-Appellant United States,

United States v. DTE Energy Co., 845

F.3d 735 (6th Cir. 2017) (No. 14-2274),

2014 WL 7405049................................................. 15

INTEREST OF AMICUS CURIAE

The Utility Air Regulatory Group (UARG) is an

ad hoc unincorporated association of individual electric generating companies and industry groups.1 The

members of UARG own and operate power plants

and other facilities that generate electricity for residential, commercial, industrial, and institutional

customers throughout the country. These facilities

are extensively regulated under legislative rules

promulgated by the U.S. Environmental Protection

Agency (EPA) under the Clean Air Act (CAA).

UARG’s purpose is to participate on behalf of its

members collectively in CAA proceedings, including

rulemakings, that affect the interests of electric generators, and in litigation relating to those proceedings.

The members of UARG rely on compliance with

the regulatory requirements established by EPA in

legislative rules under the CAA to ensure that their

actions and operations do not subject them to liability. The appropriate role of courts and Executive

Branch agencies with respect to the interpretation

and implementation of legislative rules is important

to the members of UARG. Members of UARG have a

1 All parties consented to the filing of this brief.

No counsel for

a party authored this brief in whole or in part, and no such

counsel or a party made a monetary contribution intended to

fund the preparation or submission of this brief. No person

other than UARG, its members, or their counsel made a monetary contribution intended to fund its preparation or submission.

particular interest in the validity of Auer v. Robbins,

519 U.S. 452 (1997), because, as demonstrated below,

it has been cited by EPA as authority to narrow

broadly-written legislative rules and retroactively

impose civil liability in the billions of dollars, all under the guise of “interpreting” ambiguous rules.

SUMMARY OF ARGUMENT

Auer should be overruled because, unlike Chevron

deference properly applied, Auer deference intrudes

on the judiciary’s Article III power to interpret the

laws. Whatever other problems Chevron deference

may have, correctly applied Chevron respects the

constitutional line between interpretation and implementation of the laws. When Congress passes a

statute, its binding meaning should be determined

exclusively by judicial interpretation. The responsibility of Executive Branch administrative agencies is

to implement statutes. That means agencies have

discretion, where Congress has left gaps for agencies

to fill, to establish policy consistent with statutory

decisional standards and in compliance with statutorily prescribed procedures. A correct application of

Chevron respects this difference between interpretation and implementation; it reserves to the judiciary

the interpretation of statutory text, while giving deference only to agency rules and adjudicatory decisions that exercise delegated policy-making authority

falling within the statutory bounds declared by the

judiciary.

Auer deference, in contrast, fails to respect the

distinction between implementation and interpreta-

tion because it gives binding deference to an agency’s

interpretation of ambiguous rules that carry the

force of law. An “ambiguous” regulation is one where

the language allows for more than one possible

meaning. Black’s Law Dictionary 97 (10th ed. 2014).

That may be the case where there is regulatory silence on a particular question, where unclear regulatory terms have several plausible readings, or where

broad language suggests intent to permit a range of

outcomes. Auer is problematic in each of those cases,

as it gives agencies the power to issue interpretations of the law that bind the judiciary.

This brief focuses on the particular problems with

Auer in the third case: where the regulatory language suggests an intent to permit a range of outcomes consistent with the text. Good reasons may

exist for an agency to write such a rule. For example, such rules can provide regulated parties flexibility in choosing how to comply, given the particular

facts and circumstances that may arise. To specify

one outcome from among a range of permissible outcomes is not just a purported exercise of interpretation but also is a new policy judgment to depart from

the flexibility provided. In that case, Auer deference

not only gives agencies the judicial power of binding

interpretation, but it also authorizes unlawful implementation. Both results are wrong. Auer has

been used to allow an agency to issue interpretations

of rules that are given binding effect (violating the

separation of powers) and to implement new policy,

or change existing policy, through interpretive rules

(violating the Administrative Procedure Act (APA)).

Overruling Auer is demanded by the checks and balances established by the Constitution, would honor

the intent of Congress concerning the role of agencies

under the APA, and would be consistent with decisions of this Court concerning the proper application

of deference to agency discretionary policy-making.

ARGUMENT

The Court should overrule Auer for all the reasons stated in Petitioner’s brief, but also because it

blurs the distinction between interpretation and implementation of law. In particular, where rules are

written to allow a range of permissible policy options,

Auer improperly authorizes agencies to narrow those

rules through interpretive statements that evade notice and comment rulemaking requirements. This

brief elaborates on that problem and discusses one

real-world example.

Congress gives Executive Branch agencies the power to bind regulated parties

by implementing laws, not by interpreting them.

A critical distinction exists between implementation of the law and interpretation of the law. When

Congress expressly charges an agency with execution

of a statute, it delegates to that agency Congress’s

own authority to fill the policy gaps left in the statutory scheme, subject to certain statutory procedures

and standards governing the exercise of that policy

discretion. The agency may decide these unresolved

matters by promulgating a legislative rule, which

has the force and effect of law. See 5 U.S.C. § 551(4)

(defining “rule” as a “statement of general or particular applicability and future effect” that is designed to

“implement, interpret, or prescribe law or policy”);

Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1203

(2015) (“Rules issued through the notice-andcomment process are often referred to as ‘legislative

rules’ because they have the ‘force and effect of

law.’”); SEC v. Chenery Corp., 332 U.S. 194, 202

(1947) (“The function of filling in the interstices of

the Act should be performed, as much as possible,

through th[e] quasi-legislative promulgation of rules

. . . .”). Where authorized by statute, the agency may

also develop policy through case-by-case adjudication.2

Interpretation of legal texts, on the other hand, is

distinct from making gap-filling policy judgments.

Interpretation is an act of construction—a means of

resolving ambiguity in what has already been decided. See, e.g., Black’s Law Dictionary 943 (10th ed.

2014) (defining “interpret” as “[t]o ascertain the

meaning and significance of thoughts expressed in

words”); cf. Perez, 135 S. Ct. at 1207-08 (distinguishing the act of interpreting a regulation from the act

of amending it). The purpose of interpretation is not

“to make the regulatory program work in a fashion

that the current leadership of the agency deems effective.” Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597,

2 Sometimes, Congress specifies the manner in which the agen-

cy may establish policy. In the case of the CAA, for example,

Congress specified that the agency establish policy through

programmatic rules. See 42 U.S.C. § 7601(a).

618 (2013) (Scalia, J., concurring in part and dissenting in part). That “is the purpose of rulemaking.” Id.

Rather, “the purpose of interpretation is to determine the fair meaning of the rule”—i.e., “[n]ot to

make policy, but to determine what policy has been

made.” Id. (emphasis added). Interpretation is the

job of the courts. Whatever might be said about

Congress’s power to delegate its own policy-making

authority to administrative agencies that implement

the laws, it certainly cannot delegate to agencies the

courts’ power to make binding interpretation of the

laws.

The APA reflects this division of responsibility by

distinguishing between legislative and interpretive

rules. The APA requires notice and comment procedures for issuing legislative rules that implement a

statute and have the force of law, but it excludes

from those requirements interpretive rules that offer

the agency’s view on the meaning of a statute or regulation. 5 U.S.C. § 553(b)(A). See Perez, 135 S. Ct.

at 1204 (“Interpretive rules do not have the force and

effect of law and are not accorded that weight in the

adjudicatory process.”) (internal quotation marks

omitted). An agency may issue interpretations “to

advise the public by explaining its interpretation of

the law,” but an agency may not “bind the public by

making law” without going through notice and comment rulemaking. Id. at 1211 (Scalia, J., concurring

in the judgment).

II.

This Court’s application of Chevron deference reflects the distinction between

implementation of law and interpretation

of law.

Where an agency purports to fill statutory policy

gaps through legislative rulemaking, courts are

tasked with reviewing the substance of that legislative rule using the two-step inquiry articulated in

Chevron. Properly understood, Chevron instructs

that if the statute resolves the matter, then the court

is to treat the issue as a question of interpretation

and not give any deference to an agency’s different

interpretation in the rule. Chevron, U.S.A., Inc. v.

Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43

(1984). But if the court determines that Congress

delegated to the agency the policy-making authority

to resolve the precise question at issue, resolution of

the issue is left to agency implementation (consistent

with any statutory decisional criteria identified by

the court). The question then becomes whether the

agency’s resolution of that question “is a reasonable

policy choice for the agency to make.” Id. at 845. In

other words, a policy choice authorized by statute

will be upheld if not arbitrary and capricious, an

abuse of discretion, or otherwise contrary to law. See

5 U.S.C. § 706(2)(A).3

In addition to this substantive review of the agency’s policy

decision, the agency action must conform with the procedural

requirements of the APA, 5 U.S.C. §§ 500 et seq.

Chevron deference is not to be accorded to a legal

interpretation of a statute provided by an agency.

Rather, it applies only to agency action implementing a policy decision delegated to it by Congress.

Where “the regulatory scheme is technical and complex, the agency considered the matter in a detailed

and reasoned fashion, and the decision involves reconciling conflicting policies,” the Court will not second-guess “the wisdom of the agency’s policy” if the

resulting agency rule makes “a reasonable choice

within a gap left open by Congress.” Chevron, 467

U.S. at 865-66. See also Michigan v. EPA, 135 S. Ct.

2699, 2718 (2015) (Kagan, J., dissenting) (Chevron

applies “in the context of implementing policy decisions in a technical and complex arena”).

Though he has other criticisms of the case, Justice Thomas has well explained how Chevron can

properly distinguish between implementation and

interpretation. “[A]gencies ‘interpreting’ ambiguous

statutes typically are not engaged in acts of interpretation at all.” Id. at 2712-13 (Thomas, J., concurring). “Instead, as Chevron itself acknowledged, they

are engaged in the ‘formulation of policy.’” Id. at

2713. Indeed, that has long been the view of the Executive Branch. See Attorney General’s Manual on

the Administrative Procedure Act 13-14 (1947)

(rulemaking “is primarily concerned with policy considerations”).

This distinction between implementation of policy

and interpretation of law is borne out in numerous

cases where this Court refused to extend Chevron

deference. E.g., Gonzales v. Oregon, 546 U.S. 243,

255-56 (2006); Christensen v. Harris Cty., 529 U.S.

576, 587 (2000) (refusing to apply Chevron deference

to an agency opinion letter because it, “like interpretations contained in policy statements, agency manuals, and enforcement guidelines,” lacks the force of

law); Martin v. Occupational Safety & Health Review

Comm’n, 499 U.S. 144, 157 (1991) (interpretive rules

and enforcement guidelines are “not entitled to the

same deference as norms that derive from the exercise of the Secretary’s delegated lawmaking powers”).

In Michigan, for example, this Court rejected as

improper “interpretation” an agency’s attempt to

narrow, rather than simply implement, a manifestly

broad statutory provision. 135 S. Ct. at 2708. Congress had directed EPA to regulate emissions of hazardous air pollutants from power plants if the agency

finds such regulation “appropriate and necessary.”

42 U.S.C. § 7412(n)(1)(A). “Appropriate,” the Court

held, is a “broad and all-encompassing term,” which

naturally includes consideration of all relevant factors. Michigan, 135 S. Ct. at 2707 (internal quotation marks omitted); id. at 2709 (“broad reference to

appropriateness encompasses multiple relevant factors (which include but are not limited to cost)”).

Although this formulation “leaves agencies with flexibility” in deciding how they will weigh relevant factors in determining whether regulation is “appropriate,” id. at 2707, agencies “may not entirely fail to

consider an important aspect of the problem,” id. (internal quotation marks omitted). In implementing

this provision, EPA had refused to consider cost. But

because Congress intentionally wrote the provision

expansively to require consideration of all relevant

factors, and cost is a relevant factor, “‘[t]hat congressional election settles this case.’” Id. at 2710 (quoting CSX Transp., Inc. v. Ala. Dep’t of Revenue, 562

U.S. 277, 296 (2011)). Chevron did not give the

agency license to undo that congressional election by

purporting to narrowly interpret, rather than simply

implement, the statutory instruction. Id. at 2707.

Chevron was never intended to lead to a wholesale abandonment by the courts of their ultimate authority and responsibility to interpret statutes. See

Chevron, 467 U.S. at 843 n.9 (courts should employ

all the “traditional tools of statutory construction” to

resolve any statutory ambiguity). “[B]efore a court

may grant [Chevron] deference, it must on its own

decide whether Congress—the branch vested with

lawmaking authority under the Constitution—has in

fact delegated to the agency lawmaking power over

the ambiguity at issue.” City of Arlington v. FCC, 569

U.S. 290, 317 (2013) (Roberts, C.J., dissenting) (emphasis added).

Nevertheless, many lower court judges have erroneously interpreted Chevron to require judicial deference to an agency’s interpretation of a statute

whenever the statute is deemed to be ambiguous. In

these cases, judicial review ends with the courts declaring that the agency interpretation is “permissible.” See, e.g., Strickland v. Comm’r, Me. Dep’t of

Human Servs., 48 F.3d 12, 17 (1st Cir. 1995). This

application of Chevron raises the same separation of

powers problems regarding interpretation as are

raised by Auer. It is also a view of Chevron deference

that is contradicted by the Chevron Court’s careful

distinction between the judiciary’s responsibility to

interpret a statute and an agency’s policymaking responsibility under a statute as construed by the

courts.

III.

Auer ignores the line between interpretation and legislative rulemaking.

Petitioner’s brief fully illustrates the many legal

and practical infirmities of Auer deference, but this

brief focuses on one in particular: the application of

Auer to broad language in an agency regulation that,

after applying the tools of textual construction, still

allows for many possible outcomes. By allowing an

agency via “interpretation” to specify only one of

many permissible outcomes and give that interpretation binding effect, Auer ignores the distinction between interpretation and implementation.

One stark example is EPA’s “New Source Review”

(NSR) regulations under the CAA, which define

when “modifications” to an existing source make it a

“new” source. Under the CAA, new sources of air

emissions must obtain certain permits prior to construction. A company that violates these requirements is subject to civil and criminal penalties. 42

U.S.C. § 7413. Under the statute, new sources include both brand new sources and existing sources

that undergo “modification.” Id. § 7411(a)(2), (4).

The CAA directs EPA to define “modification”

through legislative rulemaking. Id. § 7601(a).

The NSR rules defining a “modification” offer

general guidance and no methodology for determining whether a modification has occurred. Largely

mirroring the statutory language, the NSR rules define a “modification” as: “[A] project [that]. . . causes

. . . a significant emissions increase . . . . The project

is not a major modification if it does not cause a significant

emissions

increase.”

C.F.R.

§ 52.21(a)(2)(iv)(a).

Because permits for modifications must be obtained prior to construction, the NSR regulations require that an operator must determine preconstruction whether a project would cause a “significant emissions increase” by predicting postconstruction emissions. The rules require operators

to make these predictions based on “consider[ation]

[of] all relevant information.” Id. § 52.21(b)(41)(ii)(a)

(emphasis added). The rules also require that the

operator exclude from this projection emissions unrelated to the project, including those due to “demand

growth.” Id. § 52.21(b)(41)(ii)(c). The regulations do

not confine the scope of “relevant information,” do

not provide criteria for determining when emissions

are “unrelated” to a project and must be excluded,

and do not provide any methodology for making projections. Id. § 52.21(b)(41).4

The directive for an operator to consider “all relevant information” in the NSR rules, 40 C.F.R. § 52.21(b)(41)(ii)(a), parallels the rule concerning “relevant” records in the case at bar, 38

C.F.R. § 3.156(c)(1). In both cases, the rules are equally broad;

Furthermore, the regulations do not require that

EPA verify emission projections, that an operator

wait for any response before beginning construction,

or that projections be treated as enforceable limits.

Id. § 52.21(r)(6)(ii). Rather, as EPA explained, the

modification determination is:

self-implementing and self-policing. Because

there is no specific test available for determining whether an emissions increase indeed results from an independent factor such

as demand growth, versus factors relating to

the change at the unit, each company . . .

adopts its own interpretation. Interpretations may vary from source to source, as well

as from what a permitting agency would accept as appropriate.

63 Fed. Reg. 39,857, 39,861 (July 24, 1998).

In order to verify pre-construction emission projections, the NSR rules require instead that operators maintain a record of post-construction emissions

of any NSR regulated pollutant and report those

emissions to the relevant regulatory authority annually. 40 C.F.R. § 52.21(r)(6)(iii)-(iv). See United

States v. DTE Energy Co., 711 F.3d 643, 649 (6th Cir.

2013) (“DTE I”) (NSR rules are “project-and-report

scheme” relying upon operator application of the

regulations, rather than “prior approval scheme” re-

in neither case do the regulations attempt to narrow or confine

“relevant.”

lying upon agency application of the regulations).

As EPA explained, the post-construction monitoring

and reporting “provide[s] a reasonable means of determining whether a significant increase . . . resulting from a proposed change . . . occurs within the 5

years [or 10 years] following the change.” 57 Fed.

Reg. 32,314, 32,325 (July 21, 1992).

In the face of this broad regulatory language creating a flexible self-implementing program, EPA’s

Enforcement Office has initiated enforcement cases

over the past two decades by claiming Auer deference

for its post-hoc selection of a specific methodology for

making pre-construction emission projections.

“[D]espite the fact that the rules delegate calculation

of the prediction to the operator . . . and contain no

requirement that the operator obtain []EPA review

or approval,” EPA in these cases “deems both the operator’s prediction and reality meaningless.” United

States v. DTE Energy Co., 845 F.3d 735, 743 (6th

Cir.), cert. denied, 138 S. Ct. 555 (2017) (“DTE II”)

(Batchelder, J., concurring in the judgment). In so

doing, EPA’s Enforcement Office has attempted to

narrow the meaning of “relevant information” to that

which fits its enforcement theories.

In the DTE litigation, for example, the EPA Enforcement Office relied on a methodology for preconstruction projections that was offered after construction was completed. This methodology “projected” increases in emissions, while the operator’s preconstruction projections and the actual post-

construction emissions showed decreases.

711 F.3d at 648.

DTE I,

Following dismissal of the enforcement action by

the district court, EPA appealed to the Sixth Circuit,

arguing that Auer required deference to its projection

methodology. Opening Br. for Pl.-Appellant United

States at 21, 57, United States v. DTE Energy Co.,

845 F.3d 735 (6th Cir. 2017) (No. 14-2274), 2014 WL

7405049. A fractured panel of the Sixth Circuit reversed, issuing three separate opinions. DTE II, 845

F.3d at 736-41, 741-45, 745-56. As Judge Batchelder

explained, the approach advanced by EPA’s Enforcement Office allowed EPA to rely upon “its own

expert’s preconstruction predictions,” using an unpublished projection methodology, in an attempt “to

force DTE to get [an NSR] construction permit (or to

punish DTE for failing to get [an NSR] permit), even

if []EPA’s disagreement is based on debatable scientific or technical reasons and even if actual events

have proven []EPA’s expert’s prediction wrong.” Id.

at 744 (Batchelder, J., concurring in the judgment).

The Government’s position in the DTE litigation

plainly illustrates how EPA in an enforcement action

has attempted to use Auer to narrow, and amend

through purported interpretation, a regulatory regime designed to be flexible. On their face, the NSR

rules do not specify any methodology for preconstruction projections. At the time of their adoption, EPA expressly recognized that the rules allowed

a multiplicity of approaches. And recognizing this

potential for different approaches to projecting future

emissions, EPA made post-construction reporting of

actual emissions the basis for NSR enforcement and

compliance, avoiding debates over preconstruction

projection methodologies. Yet EPA has sought to

turn the regulatory flexibility created by the use of

broadly-worded provisions into an ambiguity to be

resolved under Auer. See also, e.g., United States v.

Ameren Missouri, No. 4:11 CV 77 RWS, 2016 WL

728234, at *16 n.22 (E.D. Mo. Feb. 24, 2016) (holding

that Government’s interpretation of NSR regulations

gets Auer deference); United States v. Duke Energy

Corp., 981 F. Supp. 2d 435, 463 (M.D.N.C. 2013)

(same).

Where the tools of textual construction lead to the

conclusion that a rule’s language allows a range of

different methods for compliance, the agency should

not be permitted to revisit that policy judgment by

limiting the rule to one exclusive method and then

demand Auer deference to this “interpretation.” This

is true whether the law exists as statute, see Michigan, 135 S. Ct. at 2707, or whether it exists as legislative rule. See Christensen, 529 U.S. at 588 (to defer to an agency interpretation that eliminates flexibility built into the regulation “would be to permit

the agency, under the guise of interpreting a regulation, to create de facto a new regulation”). The elimination of flexibility enshrined in the regulations

represents a new policy choice and thus requires the

agency to employ the same procedures used to produce the prior decision: notice and comment rulemaking. See, e.g., ExxonMobil Pipeline Co. v. U.S.

Dep’t of Transp., 867 F.3d 564, 575-78 (5th Cir. 2017)

(vacating portions of agency enforcement order that

attempted to second-guess a regulated party, where

the underlying regulation required that the party only consider various factors and did not specify the result).

The Court applied these principles in Gonzales v.

Oregon, where the Court refused to give Auer deference to the Attorney General’s attempt to narrow the

meaning of a broadly worded rule through interpretation. 546 U.S. 243 (2006). The Attorney General

announced that broad regulatory language defining

lawful conduct could be narrowed through interpretation to exclude a specific type of conduct. Id. at

253-54. The Court rejected the Government’s argument for deference to what was actually an attempt

at implementing a new policy judgment. Id. at 256.

Because the regulatory language “gives no indication

how to decide this issue, the Attorney General’s effort to decide it now [via the interpretive rule] cannot

be considered an interpretation of the regulation.”

Id. at 257. In short, interpretation cannot substitute

for the decision-making process established by the

APA for formulating binding rules. Filling gaps or

narrowing a broad regulation requires new rulemaking.

Because Auer deference has allowed agencies to

work substantive policy changes by narrowly “interpreting” broad regulatory language that allows many

possible outcomes, it should be overruled. See John

F. Manning, Constitutional Structure and Judicial

Deference to Agency Interpretations of Agency Rules,

96 Colum. L. Rev. 612, 638 (1996) (identifying the

“separation of lawmaking from law-exposition” as a

“crucial constitutional commitment” that Seminole

Rock deference contradicts). Once an agency makes

a decision and implements that policy choice through

rulemaking, binding interpretation of that law lies

with the courts alone. See, e.g., 5 U.S.C. § 706

(“[T]he reviewing court shall . . . interpret constitutional and statutory provisions, and determine the

meaning or applicability of the terms of an agency

action.”); Perez, 135 S. Ct. at 1211 (Scalia, J., concurring in the judgment) (the APA “contemplates that

courts, not agencies, will authoritatively resolve ambiguities in statutes and regulations”).

For legislative rules that regulate conduct, the

courts should simply employ the tools of textual construction and enforce rules according to their terms.

The judiciary’s interpretive function is first to determine whether the rule’s language speaks with only one plausible meaning or is ambiguous. In the latter case, the judiciary should apply canons of construction to resolve or to narrow the scope of any

ambiguity. Cf. Chevron, 467 U.S. at 843 n. 9 (requiring courts to apply the tools of statutory construction

to narrow or resolve ambiguity at step one). Where

ambiguity nevertheless remains, the courts must

recognize that the rule as written allows a range of

outcomes. This result preserves the courts’ constitutional responsibility to “say what the law is,” respects the constitutional role of the Executive

Branch agencies to implement policy under decision-

al standards established by Congress, and assures

compliance with the APA.

IV.

Overruling Auer does not require overruling Chevron.

To overrule Auer does not require also overruling

Chevron, if the latter is properly understood and applied. First, whatever other constitutional issues

Chevron may raise, it does not intrude on the judiciary’s power of interpretation in the same way as Auer. See Chevron, 467 U.S. at 865-66. In its first step,

Chevron requires courts to exercise their traditional

role of interpreting statutes to determine the degree

to which Congress has already addressed the question at issue. Id. at 845. This includes determining

the scope of policy discretion provided the agency to

address an unresolved issue. See, e.g., Prill v. Nat’l

Labor Relations Bd., 755 F.2d 941, 956-57 (D.C. Cir.

1985) (setting aside agency action taken on the basis

of the agency’s incorrect view of the scope of its discretion under the statute); cf. Motor Vehicle Mfrs.

Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

42 (1983) (agency rule must be “within the scope of

the authority delegated to the agency by statute”).

In its second step, Chevron requires courts to decide

whether the agency action resolving the issue represents “a reasonable policy choice for the agency to

make,” Chevron, 467 U.S. at 845—in other words, is

the result arbitrary and capricious, an abuse of discretion, or contrary to law. 5 U.S.C. § 706(2)(A).

This is consistent with separation between the judi-

ciary and the political branches, as Chevron itself

explained:

[A]n agency to which Congress has delegated

policy-making responsibilities may, within

the limits of that delegation, properly rely

upon the incumbent administration’s views

of wise policy to inform its judgments. While

agencies are not directly accountable to the

people, the Chief Executive is, and it is entirely appropriate for this political branch of

the Government to make such policy choices—resolving the competing interests which

Congress itself either inadvertently did not

resolve, or intentionally left to be resolved by

the agency charged with the administration

of the statute in light of everyday realities.

. . . The responsibilities for assessing the

wisdom of such policy choices and resolving

the struggle between competing views of the

public interest are not judicial ones: “Our

Constitution vests such responsibilities in

the political branches.”

Chevron, 467 U.S. at 865-66 (quoting Tenn. Valley

Auth. v. Hill, 437 U.S. 153, 195 (1978)). Auer, on the

other hand, directly intrudes on the judiciary’s power

of interpretation, as explained above.5

5 To the extent that any legal justification has been supplied for

Auer, it is the faulty premise that Congress has delegated to the

agency authority to construe its own regulations. See, e.g.,

Martin, 499 U.S. at 151 (“we presume that the power authorita-

Second, overruling Auer is consistent with the animating purpose of Chevron: encouraging the development of policy through notice-and-comment rulemaking. Chevron deference is premised on Congress’s delegation of authority to an agency to give

content to ambiguous statutory language through

legislative rules. See United States v. Mead Corp.,

533 U.S. 218, 226 (2001).

Notice-and-comment

rulemaking, when properly followed, ensures that

the agency proposes how it is implementing the statute, explains its rationale, considers public comments, and then promulgates the new legislative rule

with prospective effect. 5 U.S.C. § 551(4). Chevron

deference thereby serves the due process objectives of

giving notice of the law to those who must comply

and of constraining those who must enforce it. See

Manning, 96 Colum. L. Rev. at 623-27, 638-39, 66062.

Application of Auer to allow an agency to make a

significant change in the meaning of a regulation

years after the rule was promulgated, as was done in

the NSR context, represents the antithesis of Chevron deference. Chevron deference anticipates that

agencies will resolve policy delegations after providing notice and an opportunity to be heard, and that

tively to interpret its own regulations is a component of the

agency’s delegated lawmaking powers”). But Congress cannot

delegate what it does not possess. “[T]he Constitution invests

the Judiciary, not the Legislature, with the final power to construe the law.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S.

318, 325 (1992).

the agency’s resolution will be subject to meaningful

judicial review. Deference to shifting agency interpretations of a regulation promotes just the opposite

result: vague regulations that have no fixed meaning. Id. at 655-60; Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 525 (1994) (Thomas, J., dissenting).

This carries the risk of unfair and retroactive application of new regulatory mandates to activities completed long ago, raises due process concerns and is in

direct contravention of the statutory requirement

that a rule be “an agency statement of general or

particular applicability and future effect.” 5 U.S.C.

§ 551(4) (emphasis added).