Amicus Curiae Brief — Relentless, Inc., et al., Petitioners v. Department of Commerce, et al.

No. 22-1219

In the

Supreme Court of the United States

RELENTLESS, INC., et al.,

Petitioners,

v.

DEPARTMENT OF COMMERCE, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of A ppeals for the First Circuit

BRIEF AMICUS CURIAE

OF ENVIRONMENTAL DEFENSE FUND

IN SUPPORT OF RESPONDENTS

Vickie L. Patton

Peter Zalzal

Grace M. Smith

Environmental

Defense Fund

2060 Broadway, Suite 300

Boulder, CO 80302

(303) 447-3001

Sean H. Donahue

Counsel of Record

David T. Goldberg

Megan Herzog*

Mikhaila Fogel*

Donahue & Goldberg, LLP

1008 Pennsylvania Avenue, SE

Washington, DC 20003

(202) 277-7085

sean@donahuegoldberg.com

*Supervised by partners of the

firm who are members of the

D.C. bar

Counsel for Amicus Curiae

326378

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ..........................................................2

ARGUMENT ...............................................................3

I. Petitioners’ Central Contention—That

Chevron Deference Violates Article III—Is

Manifestly Wrong .............................................4

A. The Constitution Does Not Prohibit

Judicial Deference to Administering

Agencies’ Interpretations of Ambiguous

Statutory Provisions ...................................4

B. Deference to Executive Interpretations

Promotes Judicial Independence ................8

II. Petitioners’ Due Process Argument Is

Meritless ......................................................... 10

III. Judicial Deference is Consistent with the

APA, with Pre-Chevron Caselaw, and with the

Judicial Review Statute Applicable in Chevron

Itself ................................................................ 12

CONCLUSION .......................................................... 19

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Abbott v. Abbott, 560 U.S. 1 (2010) .............................5

Alaska Dep’t of Env’t Conservation v. EPA, 540 U.S.

461 (2004) .................................................................2

Amoco Oil Co. v. EPA, 501 F.2d 722

(D.C. Cir. 1974) ...................................................... 13

Batterton v. Francis, 432 U.S. 416 (1977) ................ 14

Bowsher v. Synar, 478 U.S. 714 (1986) ......................4

Chevron USA, Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984)............................ 2, 5, 6, 7, 9, 15

City of Arlington, Tex. v. F.C.C.,

569 U.S. 290 (2013)............................................ 8, 12

City of Chicago v. EDF, 511 U.S. 328 (1994)..............1

Colgate-Palmolive-Peet Co. v. United States,

320 U.S. 422 (1943).............................................. 5, 6

Env’t Def. v. Duke Energy Corp.,

549 U.S. 561 (2007)..................................................1

EPA v. EME Homer City Generation, L.P.,

572 U.S. 489 (2014)..................................................1

Ethyl Corp. v. EPA,

541 F.2d 1 (D.C. Cir. 1976)……....................... 14, 18

FERC v. Elec. Power Supply Ass’n,

577 U.S. 260 (2016).............................................. 1, 2

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ....... 14

Haig v. Agee, 453 U.S. 280 (1981)...............................5

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) .............5

iii

Investment Co. Inst. v. Camp, 401 U.S. 617

(1971)………………………………………….14, 15, 18

Judulang v. Holder, 565 U.S. 42 (2011) .....................8

Long Island Care at Home, Ltd. v. Coke,

551 U.S. 158 (2007)................................................ 12

Lorillard v. Pons, 434 U.S. 575 (1978) ..................... 17

Massachusetts v. Morash, 490 U.S. 107 (1989) ..........7

Michigan v. EPA, 576 U.S. 743 (2015)……………….. 1

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

Auto. Ins. Co., 463 U.S. 29 (1983) ......................... 11

Pauley v. BethEnergy Mines, Inc., 501 U.S. 680

(1991) ........................................................................9

Quern v. Mandley, 436 U.S. 725 (1978) .............. 14, 15

SEC v. Chenery, 332 U.S. 194 (1947) ....................... 11

Sumitomo Shoji America, Inc. v. Avagliano,

457 U.S. 176 (1982)..................................................5

Thomas v. Union Carbide Agric. Prods. Co.,

473 U.S. 568 (1985)..................................................6

Train v. Nat. Res. Def. Council, Inc.,

421 U.S. 60 (1975)............................................ 14, 18

Udall v. Tallman, 380 U.S. 1 (1965)...........................7

Union Elec. Co. v. EPA, 427 U.S. 246 (1976) ........... 14

United States v. Mead Corp., 533 U.S. 218 (2001). ....8

United States v. Shimer,

367 U.S. 374 (1961)........................................ 5, 9, 13

Util. Air Regul. Group v. EPA,

573 U.S. 302 (2014)..................................................1

iv

Watt v. Alaska, 451 U.S. 259 (1981) ...........................7

West Virginia v. EPA, 142 S. Ct. 2587 (2022) ............1

Whitman v. Am. Trucking Ass'ns, 531 U.S. 457

(2001) ........................................................................2

Williamson v. Lee Optical, 348 U.S. 483 (1955) ....... 11

Statutes

5 U.S.C. § 553 ............................................................ 10

5 U.S.C. § 701(a) ..........................................................6

5 U.S.C. § 706 ............................................................ 12

5 U.S.C. § 706(2)(A) ................................................... 12

9 U.S.C. § 10 .......................................................... 6, 10

9 U.S.C. § 11…………………………………………..6, 10

28 U.S.C. § 2254(d)(1) ........................................... 6, 10

42 U.S.C. § 6313(a)(6)(A)(ii)(II)................................. 11

42 U.S.C. § 7411(a)(4) .................................................7

42 U.S.C. § 7607(d) .............................................. 10, 16

42 U.S.C. § 7607(d)(1) ......................................... 16, 17

42 U.S.C. § 7607(d)(1)-(8) .......................................... 16

42 U.S.C. § 7607(d)(9) ................................... 13, 16, 17

Clean Air Act Amendments of 1977, Pub. L. No.

95-95, § 305(a), 91 Stat. 772-73 (1977) ........... 16, 17

v

Other Authorities

Pages(s)

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ............... 12

Brett M. Kavanaugh, Fixing Statutory

Interpretation, 129 Harv. L. Rev. 2118 (2016) .... 7, 8

Clean Air Act Amendments of 1977: Hearing Before

the Subcommittee on Environmental Pollution of

the Committee on Environment and Public Works,

95th Cong. (1977) ................................................... 16

Frank Easterbrook, The Supreme Court, 1983

Term - Forward: The Court and the Economic

System, 98 Harv. L. Rev. 4 (1984) ...........................9

H.R. Rep. No. 95-564 (1977)...................................... 18

Kenneth Starr, Judicial Review in the PostChevron Era, 3 Yale J. on Regul. 283 (1986)...... 8, 9

Laura Dolbow, Barring Judicial Review, 77 Vand. L.

Rev. (forthcoming 2024)...........................................6

Ronald M. Levin, Judicial Review and the

Bumpers Amendment, 1979 Admin. Conf.

of U.S. 565 (1979)................................................... 15

Ronald M. Levin, Review of ‘Jurisdictional’ Issues

under the Bumpers Amendment, 1983 Duke L.J.

355 (1983) ............................................................... 15

S. 2408, 94th Cong. (1975) ........................................ 15

S. 86, 95th Cong. (1977) ............................................ 15

S. 111, 96th Cong. (1979) .......................................... 15

vi

Viet D. Dinh, Threats to Judicial Independence:

Real and Imagined, 95 Geo. L.J. 929 (2007)...........9

William F. Pedersen Jr., Formal Records and

Informal Rulemaking, 85 Yale L.J. 38

(1975)…………………………………………………..16

Constitutional Provisions

U.S. Const. art. II, § 2, cl. 1.........................................4

U.S. Const. art. II, § 3 .................................................4

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INTEREST OF AMICUS CURIAE 1

Amicus Environmental Defense Fund is a nonprofit, non-partisan, public interest organization dedicated to protecting public health, stabilizing the climate, and strengthening people’s and nature’s ability

to thrive—based on solutions firmly anchored in science, economics, and law. EDF has hundreds of thousands of members across the United States, including

members in each of the 50 states and the District of

Columbia.

As part of that work, EDF advocates for effective

and stable implementation of federal statutes such as

the Clean Air Act, Federal Food, Drug, and Cosmetic

Act, Magnuson-Stevens Fishery Conservation and

Management Act, Natural Gas Pipeline Safety Act,

Federal Power Act, and Toxic Substances Control Act.

EDF has participated in scores of administrative rulemakings and judicial review proceedings under these

and other statutes. EDF has been a party in this

Court’s leading cases interpreting federal environmental and energy statutes. See, e.g., West Virginia v.

EPA, 142 S. Ct. 2587 (2022); Michigan v. EPA, 576

U.S. 743 (2015); Util. Air Regul. Group v. EPA, 573

U.S. 302 (2014); EPA v. EME Homer City Generation,

L.P., 572 U.S. 489 (2014); Env’t Def. v. Duke Energy

Corp., 549 U.S. 561 (2007); City of Chicago v. EDF,

511 U.S. 328 (1994). And it has participated as amicus

curiae in many others. See, e.g., FERC v. Elec. Power

1 No party’s counsel authored this brief in whole or in part, and

no person or entity other than amicus curiae or its counsel contributed monetarily to the preparation or submission of this

brief.

2

Supply Ass’n, 577 U.S. 260 (2016); Alaska Dep’t of

Env’t Conservation v. EPA, 540 U.S. 461 (2004); Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001). EDF

and its members have an interest in how these vitally

important laws are administered and in ensuring that

the standards courts employ in performing their congressionally assigned task of reviewing agency decisions are principled, coherent, and consistent.

INTRODUCTION AND SUMMARY OF

ARGUMENT

In our amicus brief in Loper Bright Enterprises v.

Raimondo, No. 22-451, EDF showed that the judicial

review framework of Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), reflects Congress’s choices regarding how its enactments should be implemented; respects the distinct

constitutional status, expertise, and public responsiveness of Executive officials; and promotes stability,

uniformity, and predictability in statutory administration.

In this brief, we address the outright insubstantiality of the Relentless petitioners’ principal legal arguments for overturning Chevron—that judicial deference to administrative interpretations of statutes is

unconstitutional under Article III and the Due Process Clause, and/or that such deference violates the

Administrative Procedure Act’s standard of review

provisions. The constitutional arguments lack support

in text or history. If they were correct, rafts of precedent (much of it predating, or doctrinally unrelated to,

Chevron) would be undone, and many familiar statutes (some far afield from judicial review of agency

rules) would be upended. The APA argument lacks

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merit as an original matter of statutory construction.

But were the question closer, the sheer weight of decided cases, both before and after the APA’s enactment, would counsel overwhelmingly against a wholesale reinterpretation of the APA at this point. The history and text of the specialized Clean Air Act review

provisions applicable in Chevron confirm that the

unanimous Court was undoubtedly correct to perceive

no statutory mandate to review agency interpretations de novo.

As in Loper Bright, petitioners here make no attempt to supply a workable alternative review regime

that would honor the Legislative and Executive roles

in determining policy. Nor do they offer a stable

framework to protect the public’s interest in reliable,

predictable, and uniform administration of statutes.

Besides overturning precedent by the library shelf, a

regime that compelled judges to apply de novo review

to interpretive judgments Congress assigned to agencies would, in practice, require judges to do just what

the Chevron Court strained to prevent: substitute

their own policy preferences for those of expert, politically accountable agencies. Their desired regime

would not well serve the public or the judiciary, and

would warrant rejection even if it did not have so

many decades of settled law and such weighty reliance

interests against it.

ARGUMENT

Petitioners base their argument for overturning

Chevron primarily on a claim that Article III of the

Constitution, “reinforce[d]” by the APA, requires that

judges decide all issues of statutory interpretation de

novo, i.e., with no deference to Executive officers’

4

interpretations. See Pet. Br. 2, 3, 21-22, 23-25. Putting

aside the “convulsive shock to the legal system” (U.S.

Br. 10) that overruling Chevron on these sweeping

grounds would cause, petitioners’ arguments are manifestly wrong. They would not justify overruling Chevron even if doing so were costless.

I. PETITIONERS’ CENTRAL CONTENTION

—THAT CHEVRON DEFERENCE VIOLATES

ARTICLE III—IS MANIFESTLY WRONG

A. The Constitution Does Not Prohibit Judicial Deference to Administering Agencies’ Interpretations of Ambiguous Statutory Provisions

The contention that Chevron “violates the Constitution” (Pet. Br. 12) has no basis in text or decisions

of this Court. The Constitution’s text does not prescribe a standard for reviewing Executive Branch interpretations of law. Instead, it empowers Congress to

regulate prescribed subjects and enact laws “necessary and proper” to carrying out all federal-government powers; and enshrines the Executive’s central

place in law implementation and interpretation. See

Bowsher v. Synar, 478 U.S. 714, 733 (1986) (“Interpreting a law enacted by Congress to implement the

legislative mandate is the very essence of ‘execution’

of the law.”). 2 Nothing in the Constitution prevents

Congress from providing that the Executive’s

2 See U.S. Const. art. II, § 3 (the President shall “take Care that

the Laws be faithfully executed”); see also id. art. II, § 2, cl. 1 (the

President “may require the Opinion, in writing, of the principal

Officer in each of the executive Departments, upon any Subject

relating to the Duties of their respective Offices”).

5

interpretations of public laws be accorded weight by

courts adjudicating cases and controversies.

Nor does any decision of this Court embrace or support the theory that de novo review is constitutionally

required. Scattered instances of de novo review of Executive Branch interpretations of statutes (Pet. Br.

21-22) hardly indicate a constitutional obligation to do

so. In fact, for each example petitioners can cite, there

are many more cases confidently affirming that Executive interpretations of statutes are entitled to deference. See, e.g., United States v. Shimer, 367 U.S. 374,

381-82 (1961); Chevron, 467 U.S. at 844-46 & n.14;

U.S. Br. 22-25; Admin. & Fed. Regul. Profs. Loper

Amicus Br. 25. Accepting petitioners’ legal theories

would abrogate much more than the myriad decisions

that have relied upon Chevron itself.

The proposition that judicial deference in statutory

construction violates Article III cannot be reconciled

with the huge corpus of administrative law decisions

preceding and following Chevron, nor with the numerous specific areas in which the Court has emphasized

particular needs for deference. Abbott v. Abbott, 560

U.S. 1, 15 (2010) (noting that it is “settled” that courts

give “great weight” to “the Executive Branch's interpretation of a treaty”) (citing Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 185 (1982)); INS

v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (stating

that “judicial deference to the Executive Branch is especially appropriate in the immigration context”);

Haig v. Agee, 453 U.S. 280, 292-94 (1981) (deferring to

President’s application of statute providing for revocation of passports); Colgate-Palmolive-Peet Co. v.

United States, 320 U.S. 422, 426 (1943) (according

6

“weight” to Treasury’s interpretation of tax provision,

given Department’s “wide experience in tax matters”).

Petitioners’ theory that Article III categorically requires de novo review of legal questions would cast

doubt on a range of settled principles, from the narrow

review historically accorded under federal courts’

mandamus jurisdiction, U.S. Br. 24; to statutorily prescribed deferential review standards for topics from

post-conviction litigation, 28 U.S.C. § 2254(d)(1); to arbitral awards, 9 U.S.C. §§ 10-11; see also Thomas v.

Union Carbide Agric. Prods. Co., 473 U.S. 568, 583,

592-93 (1985) (rejecting Article III challenge to mandatory arbitration procedure with narrow judicial review of arbitral awards).

A constitutional mandate of de novo review would

appear to condemn Congress’s longstanding practice,

expressly referenced in the APA, of entirely precluding judicial review of certain Executive decisions

where “statutes preclude review” or where “agency action is committed to agency discretion by law.” 5

U.S.C. § 701(a) (noting that judicial review is not

available); see also Barnett & Walker Loper Amicus

Br. 23 (citing Laura Dolbow, Barring Judicial Review,

77 Vand. L. Rev. pt. II & app. B (forthcoming 2024)

(identifying statutory bars on judicial review)).

More fundamentally, petitioners’ legal theories

would rule out deference to administrative interpretations even when it is most clearly warranted—in instances where interpretation entails the “formulation

of policy.” Chevron, 467 U.S. at 843 (citation omitted).

Statutory delegations that implicate policy-making

are extremely common, including where Congress has

expressly assigned the agency authority to define

7

statutory terms, 3 or to adopt rules meeting an openended standard such as “reasonable,” “appropriate,”

“feasible” or “practicable.” 4 Many important statutory

terms—like “stationary source” in Chevron, 467 U.S.

at 845-53, 859-64—do not designate a unique referent

that is sufficiently specific to allow the statute to be

effectuated.

For example, for purposes of Clean Air Act permitting programs, there needs to be a metric for determining a pollution “increase[],” 42 U.S.C. § 7411(a)(4),

but neither the text alone nor traditional statutoryconstruction tools reveal which metric to use. See EDF

Loper Amicus Br. 26. In such instances, Congress has

chosen to rely upon the agency’s expert judgment. Under the longstanding judicial approach affirmed in

Chevron, judges limit their inquiry to deciding

whether the agency has stayed within the bounds of

the discretion granted by Congress—rather than, e.g.,

upholding the agency only if they, the judges, would

have arrived at precisely the same ultimate policy

choice. These policy questions are for agencies. See id.

at 25 (noting that Chevron accommodates overlap

3 See, e.g., Massachusetts v. Morash, 490 U.S. 107, 116 (1989)

(discussing an ERISA provision authorizing the Secretary of Labor to define “accounting, technical and trade terms” and noting

that Secretary’s “reasonable views [get judicial] deference”) (citing, inter alia, Chevron, 467 U.S. at 843; Watt v. Alaska, 451

U.S. 259, 272-73 (1981); Udall v. Tallman, 380 U.S. 1, 16 (1965));

see also U.S. Br. 36-37.

4 See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129

Harv. L. Rev. 2118, 2150-54 (2016) (book review).

8

between “reasonableness” and “arbitrary and capricious” review); see also Kavanaugh, 129 Harv. L. Rev.

at 2153-54 (Courts should “defer to agencies in cases

involving statutes using broad and open-ended terms

like ‘reasonable,’ ‘appropriate,’ ‘feasible,’ or ‘practicable.’ . . . Courts should defer to the agency, just as they

do when conducting deferential arbitrary and capricious review under the related reasoned decisionmaking principle of State Farm.”); Judulang v. Holder,

565 U.S. 42, 52 n.7 (2011) (referring to analysis under

Chevron Step 2 and “arbitrary and capricious” standard as “the same”).

B. Deference to Executive Interpretations

Promotes Judicial Independence

Petitioners’ assertions that Chevron undermines

judicial independence get things backwards. See Pet.

Br. 12. When a court concludes that Congress has delegated an issue of statutory interpretation to an Executive official, and finds the official’s interpretation

reasonable, the court has evinced independent judgment. It has taken account of the legitimate roles of

the other two branches which are charged, respectively, with making and executing the law. The courts

give binding deference to permissible agency interpretations of statutory ambiguities because

Congress has delegated to the agency the authority to interpret those ambiguities “with the force

of law.” United States v. Mead Corp., 533 U.S.

218, 229 (2001).

City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 317

(2013) (Roberts, C.J., dissenting); see also Kenneth

Starr, Judicial Review in the Post-Chevron Era, 3

Yale J. Reg. 283, 298 (1986) (Chevron “vindicates” the

9

“traditional function of judicial review” and “confirms

the judiciary’s historic role of declaring what the law

is”).

Like the decades of prior decisions embracing deference, e.g., Shimer, 367 U.S. at 381-82, Chevron embodies a rule of judicial restraint. See NRDC Loper

Amicus Br. 2-3 (discussing Chevron case history). Justice Stevens’s opinion for the Court emphasized that

when traditional statutory-interpretation tools cannot definitively answer a question, “federal judges—

who have no constituency—have a duty to respect legitimate policy choices made by those who do.” 467

U.S. at 866. Indeed, as the “honest agents of the political branches,” judges’ task is to “carry out decisions

they do not make.” Frank Easterbrook, The Supreme

Court, 1983 Term - Forward: The Court and the Economic System, 98 Harv. L. Rev. 4, 60 (1984).

Chevron prevents courts from resolving issues that

Congress has committed to Executive resolution, and

thus evinces “a sensitivity to the proper roles of the

political and judicial branches.” Pauley v. BethEnergy

Mines, Inc., 501 U.S. 680, 696 (1991). It shields courts

from political matters and makes it less likely that

rules of federal law will turn on (or be seen as turning

on) judges’ “personal policy preferences.” Chevron, 467

U.S. at 865; see also U.S. Br. 19-20.

In this way, Chevron promotes judicial independence. See Viet D. Dinh, Threats to Judicial Independence: Real and Imagined, 95 Geo. L.J. 929, 939-40

(2007) (“Judicial restraint is the key to maintaining

judicial independence.”). Petitioners’ rule, by contrast,

would tend to embroil courts in policy disputes that

are most corrosive of the perception of judicial independence. See Barnett & Walker Loper Amicus Br. 28-

10

30 (discussing studies indicating that “Chevron is

largely meeting th[e] goal of removing judges from deciding policy—that is, political—matters”).

II.

PETITIONERS’

DUE

PROCESS

ARGUMENT IS MERITLESS

Petitioners’ theory fares no better when dressed in

Due Process garb. Just as it is impossible to discern a

de novo review command in the grant (subject to Congress’s discretion) of jurisdiction over certain cases or

controversies, it is wrong to denounce as unconstitutionally “[]biased” (Pet. Br. 13, 30-33) adjudications

conducted in accordance with narrow review standards that historically have governed many types of

proceedings including mandamus petitions, or ones

Congress expressly codified in statutes such as the

Federal Arbitration Act, 9 U.S.C. §§ 10-11, and the

Antiterrorism and Effective Death Penalty Act, 28

U.S.C. § 2254(d)(1).

Indeed, petitioners offer no explanation why it

should make a difference as a Due Process matter

whether a statute expressly specifies, say, a particular

pollution control technology or fishing quota, or instead directs the appropriate official to make a reasonable choice in accordance with legislatively identified factors and standards. The second regime is, in

fact, replete with procedural protections for regulated

parties, including opportunities to comment, requirements for reasoned decision-making, prohibitions on

ex parte contacts, and the like. See, e.g., 5 U.S.C.

§ 553; 42 U.S.C. § 7607(d). And when a party regulated by an act of Congress seeks relief in court, no one

would say a decision applying the rational basis

standard is unconstitutionally “biased” in favor of the

11

government, even though that mode of review (which

appears nowhere in the Constitution) requires that

impositions be upheld based on any conceivable, but

not actual, rationale. See Williamson v. Lee Optical,

348 U.S. 483, 491 (1955); but cf. SEC v. Chenery, 332

U.S. 194, 207 (1947) (establishing the opposite rule for

review of administrative decisions).

Courts apply norms of reasoned decision-making

that are far more demanding in cases where the imposition arises from an agency’s implementing a congressional directive. See Motor Vehicle Mfrs. Ass’n v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

(requiring that agency decisions be supported by express rationale articulating a “rational connection between the facts found and the choice made” (cleaned

up)). The notion that judicial proceedings conducted

under deferential review standards are impermissibly

“biased” because parties litigating against the Government have a less-than-even chance of winning is

startling. As just noted, constitutional challenges,

mandamus proceedings, federal habeas cases, and

Federal Arbitration Act cases are not unconstitutional

because the party initiating them must make a particularly demanding showing to prevail—any more than

is a proceeding under a statute requiring one party to

make a showing by, say, “clear and convincing evidence.” See e.g., 42 U.S.C. § 6313(a)(6)(A)(ii)(II) (requiring “clear and convincing evidence” that the adoption of certain national standards “would result in significant additional conservation of energy and is technologically feasible and economically justified”).

The fact that the Government is often a party to

cases where such standards apply is immaterial: Precisely the same review standards apply when the

12

government is not a party, see Long Island Care at

Home, Ltd. v. Coke, 551 U.S. 158, 171 (2007)—just as

the same decisional standards govern if constitutional

claims arise in litigation between private parties.

III. JUDICIAL DEFERENCE IS CONSISTENT

WITH THE APA, WITH PRE-CHEVRON

CASELAW, AND WITH THE JUDICIAL

REVIEW STATUTE APPLICABLE IN

CHEVRON ITSELF

Petitioners’ theory that the APA forbids courts

from deferring to agencies’ interpretations of statutes

is wrong as a matter of text and original understanding. U.S. Br. 25-26. 5 When a court decides that an

agency has acted within the scope of its delegated authority, and has acted reasonably, it has decided the

“relevant questions of law.” 5 U.S.C. § 706; see also

U.S Br. 25, 38, 44-45; accord City of Arlington, 569

U.S. at 317 (Roberts, C.J., dissenting) (“We do not ignore [Section 706’s] command when we afford an

agency’s statutory interpretation Chevron deference;

we respect it.”). Petitioners cite no case in the APA’s

The APA’s text does not purport to prescribe which review

standards apply to particular kinds of agency determinations.

And it makes clear that an agency decision that a court has found

to survive the applicable standard of review—including the deferential standards—is “in accordance with law.” See 5 U.S.C.

§ 706(2)(A) (“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”) (emphasis added); Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 199 (2012) (“Where general words follow an enumeration of two or more things, they apply only to persons or things

of the same general kind or class specifically mentioned (ejusdem

generis).”).

5

13

nearly 80-year history in which a court embraced

their interpretation.

Like their constitutional theories, petitioners’ APA

argument proves far too much. Holding that the 1946

statute mandates de novo review would undo scores of

decisions of this Court (many of them pre-Chevron),

and thousands by lower courts. See, e.g., Shimer, 367

U.S. at 381-82 (citing decisions embracing deference

to agency interpretations stretching back “more than

a half a century” and observing that the rule has been

“consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the

given situation has depended upon more than ordinary knowledge respecting the matters subjected to

agency regulations”). After decades of decisions affirming and reaffirming agencies’ entitlement to deference in appropriate circumstances, statutory stare

decisis strongly disfavors an abrupt reinterpretation

of the APA. See U.S. Br. 27-36.

For decades, Congress has acted in reliance upon

the settled understanding that the APA does not mandate de novo judicial review. Indeed, that reliance is

manifest in the history of judicial review of Clean Air

Act regulations—and of the Act-specific review provision applicable in Chevron itself, Section 307(d)(9) of

the Clean Air Act. 42 U.S.C. § 7607(d)(9).

The Clean Air Act Amendments of 1970 contained

special provisions about the timing and forum for judicial review, but the scope of review was governed by

the APA and longstanding administrative law precedent. See, e.g., Amoco Oil Co. v. EPA, 501 F.2d 722,

731 (D.C. Cir. 1974). Under the 1970 Act, this Court

14

and the D.C. Circuit, in a series of high-profile cases,

repeatedly affirmed that reviewing courts should defer to EPA’s reasonable interpretations of the Act’s

terms. 6 During this same period, this Court’s decisions reviewing actions under other legislative delegations likewise affirmed that agency interpretations

are entitled to deference. 7 This point was “settled” in

6 See e.g., Train v. Nat. Res. Def. Council, Inc., 421 U.S. 60, 75

(1975) (“Without going so far as to hold that the Agency’s construction of the Act was the only one it permissibly could have

adopted, we conclude that it was at the very least sufficiently

reasonable it should have been accepted by the reviewing

courts.”); id. at 87 (Given EPA’s delegated authority and reliance

by states, Court had “no doubt whatever that its construction

was sufficiently reasonable to preclude the Court of Appeals from

substituting its judgment for that of the Agency.”); Union Elec.

Co. v. EPA, 427 U.S. 246, 256 (1976) (citing Train approvingly

for the proposition that “we have previously accorded great deference to the Administrator’s construction of the Clean Air Act”);

Ethyl Corp. v. EPA, 541 F.2d 1, 12 n.13 (D.C. Cir. 1976) (Administrator’s interpretation of Clean Air Act is due “considerable deference” (citing Train, 421 U.S. at 60)).

7 Investment Co. Inst. v. Camp, 401 U.S. 617, 626-27 (1971) (“It

is settled that courts should give great weight to any reasonable

construction of a regulatory statute adopted by the agency

charged with the enforcement of that statute.”); Griggs v. Duke

Power Co., 401 U.S. 424, 433-34 (1971) (“The administrative interpretation of the Act by the enforcing agency is entitled to great

deference[.]”); Batterton v. Francis, 432 U.S. 416, 424-26 (1977)

(Congress “expressly delegated to the Secretary the power to prescribe standards for determining what constitutes ‘unemployment’ for purposes of [benefits] eligibility,” and statute “entrusts

to the Secretary, rather than to the courts, the primary responsibility for interpreting the statutory term”); Quern v. Mandley,

436 U.S. 725, 738 (1978) (“The interpretation of the agency

15

1971, Investment Co. Inst., 401 U.S. at 626, and even

more so by 1977.

That settled understanding was reflected in proposed legislation that would have amended the APA

to require “de novo” review of agencies’ statutory interpretations. In 1975, Senator Dale Bumpers introduced an amendment that “would have directed

courts reviewing administrative action to decide all

questions of law ‘de novo’ and to forswear any ‘presumption of validity’ associated with rules and regulations.” Ronald M. Levin, Review of ‘Jurisdictional’

Issues under the Bumpers Amendment, 1983 Duke

L.J. 355, 358 (1983). As first introduced, the Bumpers

Amendment would have replaced the first sentence of

the APA’s scope of review provision with the following:

To the extent necessary to decision and when

presented, the reviewing court shall de novo decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms

of an agency action.

S. 2408, 94th Cong. (1975). See also S. 86, 95th Cong.

(1977); S. 111, 96th Cong. (1979); Ronald M. Levin,

Judicial Review and the Bumpers Amendment, 1979

Admin. Conf. of U.S. 565, 567-68 (1979).

In the “lengthy,” “detailed,” and “complex” 1977

Clean Air Act Amendments, see Chevron, 467 U.S. at

848, Congress established elaborate new procedural

requirements for Clean Air Act rulemakings, 42

charged with administration of the statute is, of course, entitled

to substantial deference.”).

16

U.S.C. § 7607(d)(1)-(8); adopted a statute-specific

standard of review provision, id. § 7607(d)(9); and provided that these provisions, rather than the APA, govern such rulemakings, id. § 7607(d)(1). 8 The 1977

Amendments’ scope-of-review provisions are generally similar to the APA’s taxonomy of various kinds of

agency errors, 9 although the Clean Air Act provisions

The new 42 U.S.C. § 7607(d) established structured administrative and judicial procedures for the informal rulemakings that

had come to dominate under the Clean Air Act; among other

things, they clearly define the administrative record and its relationship to judicial review. These changes largely represented

“a legislative adoption of the suggestions for a rulemaking record

set forth in .... ([William F.] Pedersen [Jr.], ‘Formal Records and

Informal Rulemaking,’ 85 Yale L.J. 38 (1975).)” Clean Air Act

Amendments of 1977: Hearing Before the Subcommittee on Environmental Pollution of the Committee on Environment and Public Works, 95th Cong. 152 (1977) (discussing proposal for what

would become § 7607(d)). The Pedersen article explains that, in

the early 1970s, the courts “almost universally” applied the “arbitrary and capricious test for review of informal rulemaking.”

Pedersen, 85 Yale L.J. at 49.

8

9 The Clean Air Act standard of review provision for rulemakings

provides:

In the case of review of any action of the Administrator

to which this subsection applies, the court may reverse

any such action found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or

immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or without observance of procedure required by law . . . .

17

lack the specific language petitioners insist supplies

the basis for their asserted APA de novo review mandate. 10

By 1977 it was settled law, including in APA cases,

that agency interpretations of regulatory statutes like

the Clean Air Act were entitled to deference. Supra,

pp. 14-15 & nn.6 & 7. When it enacted the Clean Air

Act’s scope-of-review provision, Congress well understood this was the background rule in Clean Air Act

cases governed by the APA, and that judicial deference would continue under an amended review provision employing the same “arbitrary, capricious, and

abuse of discretion, or otherwise not in accordance

with law” language (although, as just noted, with textual omissions elsewhere making it even less amenable to petitioners’ reading). See Lorillard v. Pons, 434

U.S. 575, 580 (1978) (“Congress is presumed to be

aware of an administrative or judicial interpretation

of a statute.”). In discussing the Department of Justice’s role in defending EPA actions, the Conference

Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 305(a),

91 Stat. 772-73 (1977) (codified at 42 U.S.C. 7607(d)(9)).

10 Petitioners accuse the Chevron Court of “traduc[ing]” APA re-

quirements (Pet. Br. 3), but the APA did not apply to review of a

1981 Clean Air Act regulation, 42 U.S.C. § 7607(d)(1), and none

of the APA language petitioners quote is found in the Clean Air

Act review provision. See Pet. Br. 2-3 (quoting APA language relating to judicial power to “decide all relevant questions of law,”

“interpret constitutional and statutory provisions,” and “hold unlawful and set aside” agency action exceeding the government’s

authority).

18

Committee’s report on the 1977 amendments explained:

[T]he Department ought to grant the deference

to the Agency’s views not only in scientific, factual and technical matters, but also in matters

of judgment, risk balancing, policy choice and

interpretation of Agency regulations. This deference has been accorded by the courts. See

Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976).

Even on issues of law which arise under the Act

which the Administrator is charged with implementing and enforcing, courts will defer to reasonable Agency interpretations, even if alternative interpretations would also be reasonable.

See Train v. NRDC, 421 U.S. 60 (1975).

H.R. Rep. No. 95-564, at 175-76 (1977) (Conf. Rpt.).

Against this backdrop, the Chevron Court was unquestionably correct to conclude that deferential review would apply to the extent the Clean Air Act did

not specifically resolve the interpretive question regarding the meaning of “stationary source.”

This is not to claim that Chevron’s particular, twostep formulation was dictated by statute or by precedent. But the basic understanding that an administering agency’s interpretation of a statute is entitled to

substantial weight on judicial review—and, in particular, that the APA did not forbid such deference—was

“settled” long before Chevron, including in 1977 when

Congress established the special judicial review regime for Clean Air Act rules. See Investment Co. Inst.,

401 U.S. at 626 (1971). Far from “egregiously wrong”

(Pet. Br. 14), Chevron was unquestionably correct that

judicial deference was consistent with relevant judicial review statutes.

19

*****

Like their constitutional theories, petitioners’

APA-based attack on Chevron is meritless. Invalid legal theories do not justify overturning settled precedent that has engendered particularly extensive reliance.

CONCLUSION

This Court should affirm the judgment of the court

of appeals.

Respectfully submitted,

Vickie L. Patton

Sean H. Donahue

Peter Zalzal

Counsel of Record

Grace M. Smith

David T. Goldberg

Environmental Defense Megan M. Herzog*

Fund

Mikhaila R. Fogel*

2060 Broadway, Ste 300 Donahue & Goldberg, LLP

Boulder, CO 80302

1008 Pennsylvania Ave. SE

Washington, DC 20003

(202) 277-7085

sean@donahuegoldberg.com

*Supervised by partners of

the firm who are members

of the D.C. bar

Counsel for Amicus Curiae

December 22, 2023