Amicus Curiae Brief — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.

No. 22-451

IN THE

Supreme Court of the United States

LOPER BRIGHT ENTERPRISES, ET AL.,

Petitioners,

v.

GINA RAIMONDO, SECRETARY OF COMMERCE, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the D.C. Circuit

BRIEF OF AMICUS CURIAE PUBLIC CITIZEN

IN SUPPORT OF RESPONDENTS

SCOTT L. NELSON

Counsel of Record

ALLISON M. ZIEVE

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

snelson@citizen.org

Attorneys for Amicus Curiae

September 2023

i

TABLE OF CONTENTS

Page

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

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

SUMMARY OF ARGUMENT .................................... 1

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

I.

As originally formulated, the Chevron doctrine is

firmly grounded in the APA and gives effect to

the legitimate authority of Congress, the

executive branch, and the courts......................... 3

II. Properly understood, Chevron does not call for

unfettered deference to agencies’ implementation

of statutory terms. ............................................... 8

III. Chevron confines each of the three branches to

its proper role. .................................................... 16

CONCLUSION.......................................................... 20

ii

TABLE OF AUTHORITIES

Cases

Pages

Aid Ass’n for Lutherans v. U.S. Postal Serv.,

321 F.3d 1166 (D.C. Cir. 2003) ........................... 14

Am. Bus Ass’n v. Slater,

231 F.3d 1 (D.C. Cir. 2000) ................................. 12

Arizona v. Thompson,

281 F.3d 248 (D.C. Cir. 2002) ............................. 11

Barnhart v. Thomas,

540 U.S. 20 (2003) ............................................... 17

Central United Life Ins. Co. v. Burwell,

827 F.3d 70 (D.C. Cir. 2016) ............................... 14

Chevron, U.S.A., Inc. v. NRDC,

467 U.S. 837 (1984) ......................................... 1–20

Christensen v. Harris Cty.,

529 U.S. 576 (2000) ............................................... 9

Citizens Coal Council v. Norton,

330 F.3d 478 (D.C. Cir. 2003) ............................. 18

City of Arlington v. FCC,

569 U.S. 290 (2013) ................. 3, 4, 5, 9, 14, 15, 20

Coeur Alaska, Inc. v. S.E. Alaska

Conservation Council,

557 U.S. 261 (2009) ............................................. 16

Consumer Fed’n of Am. v. U.S. Dep’t of

Health & Human Servs.,

83 F.3d 1497 (D.C. Cir. 1996) ............................. 18

Cuozzo Speed Techs., LLC v. Lee,

579 U.S. 261 (2016) ............................................. 17

iii

EEOC v. Arabian Am. Oil Co.,

499 U.S. 244 (1991) ............................................... 9

Encino Motorcars, LLC v. Navarro,

138 S. Ct. 1134 (2018) ......................................... 19

Encino Motorcars, LLC v. Navarro,

579 U.S. 211 (2016) ................................... 7, 13, 15

Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 (2009) ....................................... 12, 17

Facebook, Inc. v. Duguid,

141 S. Ct. 1163 (2021) ......................................... 19

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ....................................... 15, 16

Freeman v. Quicken Loans, Inc.,

566 U.S. 624 (2012) ............................................. 14

Global Crossing Telecomms., Inc. v.

Metrophones Telecomms., Inc.,

550 U.S. 45 (2007) ............................................... 17

Holder v. Martinez Gutierrez,

566 U.S. 583 (2012) ....................................... 11, 17

INS v. Cardoza-Fonseca,

480 U.S. 421 (1987) ......................................... 5, 10

Judulang v. Holder,

565 U.S. 42 (2011) ................................................. 7

King v. Burwell,

576 U.S. 473 (2015) ....................................... 10, 19

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ......................................... 11

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

551 U.S. 158 (2007) ....................................... 13, 17

iv

Mayo Fdn. for Med. Educ. & Research v.

United States,

562 U.S. 44 (2011) ............................................... 17

Mont. Consumer Counsel v. FERC,

659 F.3d 910 (9th Cir. 2011) ............................... 18

MCI Telecomms. Corp. v. AT&T Co.,

512 U.S. 218 (1994) ............................................. 14

Moore v. Hannon Food Serv., Inc.,

317 F.3d 489 (5th Cir. 2003) ............................... 12

Motion Picture Ass’n of Am. v. FCC,

309 F.3d 796 (D.C. Cir. 2002) ............................. 12

Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto Ins. Co.,

463 U.S. 29 (1983) ..................................... 7, 15, 17

Nat’l Cable & Telecomms. Ass’n v.

Brand X Internet Servs.,

545 U.S. 967 (2005) ..................................... 6, 7, 15

Pereira v. Sessions,

138 S. Ct. 2105 (2018) ......................................... 19

PDK Labs. v. DEA,

362 F.3d 786 (D.C. Cir. 2004) ............................. 11

Perez v. Mortgage Bankers Ass’n,

575 U.S. 92 (2015) ................................................. 4

Peter Pan Bus Lines, Inc. v. Fed. Motor

Carrier Safety Admin.,

471 F.3d 1350 (D.C. Cir. 2006) ........................... 11

Ruderman v. Whitaker,

914 F.3d 567 (7th Cir. 2019) ............................... 18

Ry. Labor Executives Ass’n v. Nat’l Mediation Bd.,

29 F.3d 655 (D.C. Cir. 1994) ............................... 12

v

Sackett v. EPA,

143 S. Ct. 1322 (2023) ......................................... 19

SAS Inst., Inc. v. Iancu,

138 S. Ct. 1348 (2018) ......................................... 11

Scialabba v. Cuellar de Ororio,

573 U.S. 41 (2014) ......................................... 14, 19

SEC v. Chenery Corp.,

318 U.S. 80 (1943) ............................................... 11

Skidmore v. Swift & Co.,

323 U.S. 134 (1944) ............................................. 10

Smiley v. Citibank (S. Dak.), N.A.,

517 U.S. 735 (1996) ......................................... 4, 15

United States v. Eurodif S.A.,

555 U.S. 305 (2009) ....................................... 17, 19

United States v. Home Concrete & Supply, LLC,

566 U.S. 478 (2012) ....................................... 10, 14

United States v. Mead Corp.,

533 U.S. 218 (2001) ................................. 5, 6, 9, 15

Util. Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014) ............................................. 10

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ......................................... 10

Statutes

5 U.S.C. § 706 .............................................................. 7

5 U.S.C. § 706(2)(A) ...................................... 2, 7, 8, 13

5 U.S.C. § 706(2)(D) .................................................. 13

vi

Other

Amy Coney Barrett, Substantive Canons and

Faithful Agency, 90 B.U. L. Rev. 109 (2010) ........ 6

Br. for Pet., Kisor v. Wilkie, No. 18-15

(filed Jan. 24, 2019) ............................................... 5

Michael Herz, Chevron is Dead: Long Live Chevron,

115 Colum. L. Rev. 1867 (2015) ............................ 8

Brett M. Kavanaugh, Fixing Statutory

Interpretation, 129 Harv. L. Rev. 2118 (2016) ... 17

INTEREST OF AMICUS CURIAE1

Public Citizen is a consumer advocacy organization

that appears before Congress, administrative agencies, and the courts on behalf of its nationwide members and supporters. Much of Public Citizen’s research

and policy work focuses on regulatory matters, and

Public Citizen is often involved in litigation both challenging and defending agency action. Frequently, that

litigation involves application of this Court’s major

doctrines concerning deference to agencies, including

the doctrine articulated in Chevron, U.S.A., Inc. v.

NRDC, 467 U.S. 837 (1984), which provides for deference when agencies exercise rulemaking authority

delegated by Congress to flesh out statutory terms

that allow the agency a range of reasonable choices.

The government often invokes the Chevron doctrine in

defense of agency actions challenged by Public Citizen, as well as in defense of agency actions that Public

Citizen supports. Public Citizen’s view of the doctrine

therefore does not reflect a perception that it systematically favors or disfavors outcomes supported by

Public Citizen. The role the doctrine plays in cases of

significance to Public Citizen’s mission gives Public

Citizen a strong interest in its proper application and

in the more fundamental question whether the Court

should continue to adhere to it.

SUMMARY OF ARGUMENT

The Chevron doctrine, at its core, reflects the principle that the law commands courts to uphold the reasonable exercise of authority delegated by Congress to

––––––––––––––––––––––––

1 This brief was not authored in whole or part by counsel for

a party. No one other than amicus curiae made a monetary contribution to preparation or submission of the brief.

2

an administrative agency. Chevron deference to the

lawful exercise of agency authority to fill gaps in regulatory schemes created by statute, properly understood and applied, is fully consistent with the requirement that courts interpret statutes. Chevron commands deference only when a court has determined

that what a statute means is that an agency has discretion to resolve a particular matter through regulations or other actions with the force of law. Thus,

where Chevron is triggered, its deferential standard

implements—indeed, is commanded by—the standard

of review for discretionary agency action set forth in

the Administrative Procedure Act (APA). See 5 U.S.C.

§ 706(2)(A). That is, when an agency takes an action

premised on a lawful construction of a statute whose

plain terms do not resolve the issue, the APA’s deferential standard of review applies, and a court may set

aside the agency’s action only if it is arbitrary, capricious, or an abuse of discretion. Id.

Chevron has become controversial in large part because, over its 40-year history, agencies have claimed

deference, and courts have sometimes afforded it, in

situations outside its proper scope. But as the best

reasoned decisions applying Chevron have emphasized, Chevron does not command unqualified deference to an agency’s construction of a statute. Rather,

Chevron applies only when a court concludes that

Congress has delegated authority to the agency and

that a statute genuinely allows the agency to select

among a range of reasonable choices in implementing

a regulatory scheme created by Congress. Moreover,

not every opinion that an agency or its personnel express about the meaning of a statute, or every form in

which such an opinion is expressed, reflects an agency

action to which the APA standard of review applies—

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and thus to which Chevron should apply. And even

when a statute could reasonably be read in more than

one way, an agency is not free to choose a reading that

the statute’s terms foreclose. Finally, like other actions subject to APA review, an agency’s choice of how

to implement an “ambiguous” statutory command

must be set aside if lacks a reasoned basis.

A doctrine that circumscribes agency authority so

carefully is unlikely to subvert our constitutional order, and Chevron has not done so in practice. Rather,

as recent unanimous decisions of this Court applying

Chevron to uphold reasonable exercises of agency authority illustrate, Chevron allows agencies to do their

jobs within the scope of their statutory mandates,

while preserving the roles of Congress and the courts

in enacting and interpreting the law. To be sure,

courts may sometimes err in applying Chevron, typically when they fail to respect its limits. But such errors, inherent in the application of legal doctrines, do

not demonstrate that Chevron is unworkable or an infringement of the respective roles of the three

branches of the federal government.

ARGUMENT

I.

As originally formulated, the Chevron

doctrine is firmly grounded in the APA and

gives effect to the legitimate authority of

Congress, the executive branch, and the

courts.

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

Justice Scalia explained on behalf of a majority of the

Court that “Chevron is rooted in a background presumption of congressional intent.” Id. at 296. Specifically, Chevron commands deference to an agency’s

construction of a statute if a court determines that,

4

when Congress “ ‘left ambiguity in a statute’ administered by an agency, [it] ‘understood that the ambiguity

would be resolved, first and foremost, by the agency,

and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.’ ” Id. (quoting Smiley v. Citibank (S. Dak.), N.A.,

517 U.S. 735, 740–41 (1996)).

Chief Justice Roberts’s dissent in City of Arlington,

while disagreeing with the majority opinion on the

resolution of the particular question posed in that

case, agreed that “[c]ourts defer to an agency’s interpretation of law when and because Congress has conferred on the agency interpretative authority over the

question at issue.” Id. at 312 (Roberts, C.J., dissenting). Despite their differences, the Arlington majority

and dissent were united in recognizing that Chevron

properly applies when a court determines that a statute’s meaning is that an agency possesses discretionary authority and that the agency has acted within the

scope of that discretion. See id. at 306–07 (majority

opinion).

Petitioner Loper Bright Enterprises urges the

Court to abandon its longstanding deference to agency

exercise of discretion conferred by Congress, in favor

of suggestions that Chevron was “[h]eedless of the

original design of the APA” because it transferred

from the courts to agencies the power to “interpret …

statutory provisions.” Perez v. Mortgage Bankers

Ass’n, 575 U.S. 92, 109 (2015) (Scalia, J., concurring

in the judgment). Chevron, on that view, represents a

“judge-made doctrine[ ] of deference” that is inconsistent with “the responsibility of the court to decide

whether the law means what the agency says it

means.” Id.

5

However, as Justice Scalia himself had previously

explained—and as a host of this Court’s decisions have

recognized—where Chevron properly applies, it is

fully consistent with both objectively manifested congressional intent and judicial responsibility to determine the meaning of statutes. See Arlington, 569 U.S.

at 296. Indeed, even critics of the Court’s deference

doctrines have acknowledged that “[w]hen the APA’s

procedural safeguards are respected, judicial deference to agency interpretations of ambiguous statutory

text is consistent with the APA’s structure and purpose.” Br. for Pet. 46, Kisor v. Wilkie, No. 18-15 (filed

Jan. 24, 2019).

In a Chevron case, a reviewing court does not abdicate its responsibility to interpret the relevant statute. Rather, the court defers only after it determines

that the meaning of the statute is that Congress has

delegated authority to the agency to resolve a particular issue concerning the statute’s scope or application.

Deference under Chevron is triggered when a court

finds a statutory “gap” or “ambiguity” with respect to

a matter as to which Congress has conferred rulemaking authority to an agency—a gap that ordinary principles of statutory construction, beginning with the

primacy of unambiguous statutory text, cannot resolve. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431,

446–49 (1987). Such a gap exists when the court determines that the statutory language can reasonably

be read to have a range of permissible meanings as

applied to specific circumstances that the agency may

face in applying it, and that the statutory text, structure, and context do not reflect a specific congressional

directive concerning how the agency should resolve

that matter. See United States v. Mead Corp., 533 U.S.

218, 229 (2001).

6

That form of “ambiguity” in a statute “is essentially a delegation of policymaking authority to the

governmental actor charged with interpreting a statute.” Amy Coney Barrett, Substantive Canons and

Faithful Agency, 90 B.U. L. Rev. 109, 123 (2010) (citing Chevron, 467 U.S. at 843–44). Thus, when an

agency has been delegated regulatory authority under

a statute to take actions with the force of law, the best

reading of an ambiguity in the statute is often that it

represents a delegation of authority to the agency to

resolve the matter, within the bounds set by the statute and the agency’s obligation to engage in rational

decisionmaking in conformity with applicable procedures. See Mead, 533 U.S. at 229.; see also Nat’l Cable

& Telecomms. Ass’n v. Brand X Internet Servs., 545

U.S. 967, 982 (2005).

Chevron is a case in point. The statute at issue

there required the agency to regulate air emissions

from “stationary sources,” but the statute did not express a discernible intent as to how that term should

be applied to a single facility with multiple smokestacks. 467 U.S. at 845. In light of the statute’s delegation of regulatory power to the agency, the Court

held that what the statute meant was that the agency

had discretion to determine the bounds of a stationary

source, just as it had discretion under the statute with

respect to certain other matters, such as determining

the emissions limits necessary to protect public

health. See id. at 843–45, 865–66.

Where Congress has lawfully delegated such authority, and the agency has exercised it in an action

taken through the procedures required by Congress—

typically, through rulemaking, see Mead Corp., 533

U.S. at 230—the APA provides for deferential review:

The agency action is to be set aside only if it is

7

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A);

see Chevron, 467 U.S. at 843. The standard is equally

applicable whether the matter delegated to the agency

is filling a gap in the statute by explicating ambiguous

statutory terms (Chevron’s domain) or exercising

some other form of delegated discretion, such as determining whether a motor vehicle safety standard is

“reasonable, practicable, and appropriate.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463

U.S. 29, 33 (1983). Thus, the “reasonableness” review

that a court exercises at “Chevron step two” is,

properly understood, an application of APA review of

the exercise of agency discretion. See Judulang v.

Holder, 565 U.S. 42, 52 n.7 (2011); see also Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221–24 (2016)

(applying State Farm standard to an agency’s construction of a statute); Brand X, 545 U.S. at 981 (explaining that interpretations entitled to Chevron deference are subject to review to determine whether

they are “arbitrary and capricious … under the Administrative Procedure Act”).

Accordingly, a reviewing court applying the Chevron framework fully complies with its obligation to

“decide all relevant questions of law [and] interpret

constitutional and statutory provisions.” 5 U.S.C.

§ 706. It does so, first, by interpreting the statute and

deferring only upon a determination that what the

statute means is that Congress delegated authority to

the agency on the point at issue. Chevron thus explicitly honors the principle that “[t]he judiciary is the final authority on issues of statutory construction.”

Chevron, 467 U.S. at 843 n.9. Second, at Chevron step

two, the court enforces the requirements of the APA,

as well as the constraints that the authorizing statute

8

places on the agency’s exercise of its discretionary authority, by considering whether the agency’s construction must be set aside as “arbitrary, capricious, [or] an

abuse of discretion.” 5 U.S.C. § 706(2)(A).

This understanding of Chevron, which hews closely

to the Chevron decision itself, avoids “an abandonment of the judicial role, while still granting due

weight to agency interpretation and, within the congressionally established and judicially policed Chevron space, respecting agency construction.” Michael

Herz, Chevron is Dead: Long Live Chevron, 115

Colum. L. Rev. 1867, 1909 (2015).

So understood, Chevron is not a revolutionary

shift of authority from the judiciary to the executive. That Chevron is dead. Rather, Chevron is an

appropriate allocation of decisionmaking responsibility among the three branches, relying on the

judiciary to enforce congressional decisions, but

protecting agency authority and discretion where

Congress has left the decision to the executive.

Long may it reign.

Id. at 1867.

II. Properly understood, Chevron does not

call for unfettered deference to agencies’

implementation of statutory terms.

Criticism of Chevron has grown as, at times, the

scope of deference afforded agency actions has gone

beyond the bounds of the Chevron doctrine. Properly

understood, Chevron does not stand for blanket deference to agencies’ views of statutory meaning. Rather,

Chevron, as elaborated by decisions that are faithful

to its underlying premises, imposes substantial constraints on agencies to ensure that they have stayed

within their assigned role of carrying out authority

9

delegated by statute—and to preserve the proper role

of the courts when agencies engage in action that is

subject to judicial review under the APA. Chevron is

decidedly not a doctrine under which anything goes if

an agency can identify some arguable ambiguity in the

terms of a statute.

To begin, Chevron is limited to instances where a

statute confers on an agency the authority to take actions with the force of law to implement the statute—

typically through “rulemaking or adjudication that

produces regulations or rulings for which deference is

claimed.” Mead, 533 U.S. at 229; see Christensen v.

Harris Cty., 529 U.S. 576, 587 (2000); EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 257 (1991). When the

text, structure, and context of the statutory scheme

show that Congress did not “delegate particular interpretive authority to an agency, Chevron is ‘inapplicable.’ ” Mead, 533 U.S. at 229 (quoting Christensen, 529

U.S. at 597 (Breyer, J., dissenting)). Put another way,

“[a]n agency interpretation warrants Chevron deference only if Congress has delegated authority to definitively interpret a particular ambiguity in a particular

manner.” Arlington, 569 U.S. at 321–22 (Roberts, C.J.,

dissenting).

Second, even if an agency has some interpretive

authority under a statute, the text, structure, and context of a particular statutory provision may show that

the provision must prescribe a singular answer to the

question it addresses, rather than allowing for a range

of choices from which an agency may choose. That is,

where a statute means either A or B, and the Court

concludes that the statutory scheme does not delegate

the choice to an agency, Chevron does not apply. In

such an instance, although the statute may be ambiguous as to which meaning Congress intended,

10

Congress did not confer discretion on the agency to resolve the ambiguity. See, e.g., King v. Burwell, 576

U.S. 473, 485–86 (2015); United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 488–89 (2012) (plurality); INS v. Cardoza-Fonseca, 480 U.S. at 446–48.

Rather, in a case properly before it, a court would determine the best reading of the statute (informed by

the agency’s views only to the extent that they have

power to persuade, see Skidmore v. Swift & Co., 323

U.S. 134, 140 (1944), just as the court is informed by

persuasive arguments from other sources). The principle that reasonable exercises of agency discretion are

lawful would not come into play.2

Third, Chevron deference is by definition inapplicable if an agency does not purport to be exercising interpretive discretion conferred by statute. If an

agency’s action is premised on its view that Congress

has compelled a specific interpretation or application

of the statute, that action cannot be upheld as a reasonable exercise of discretion that the agency did not

believe it possessed and hence did not exercise, let

––––––––––––––––––––––––

2 Among the circumstances in which the Court has held it

improper to find the requisite delegation are those presented by

“certain extraordinary cases” where “both separation of powers

principles and a practical understanding of legislative intent

make [the Court] ‘reluctant to read into ambiguous statutory

text’ the delegation claimed to be lurking there.” West Virginia v.

EPA, 142 S. Ct. 2587, 2609 (2022) (quoting Util. Air Regulatory

Grp. v. EPA, 573 U.S. 302, 324 (2014)). Although petitioners suggest that the same approach should apply to “less major” questions, Pet. Br. 35, that suggestion disregards both the principles

underlying the Chevron doctrine and the reasons articulated by

the Court for declining to afford agencies “power beyond what

Congress could reasonably be understood to have granted” over

what the Court has described in shorthand as “major questions.”

West Virginia, 142 S. Ct. at 2609.

11

alone provide rational reasons for exercising in a particular manner. See, e.g., Peter Pan Bus Lines, Inc. v.

Fed. Motor Carrier Safety Admin., 471 F.3d 1350,

1354 (D.C. Cir. 2006); PDK Labs. v. DEA, 362 F.3d

786, 798 (D.C. Cir. 2004); Arizona v. Thompson, 281

F.3d 248, 254 (D.C. Cir. 2002). Deferring in such circumstances to a discretionary determination that the

agency never made would violate the longstanding

principle that a court may not uphold an agency ruling

based on a rationale the agency did not adopt. See SEC

v. Chenery Corp., 318 U.S. 80, 95 (1943); see also

Holder v. Martinez Gutierrez, 566 U.S. 583, 597 (2012)

(deferring to Board of Immigration Appeals’ statutory

construction only after concluding that there was

“nothing in [its] decision to suggest that the Board

thought its hands tied” by the statute).

Fourth, when an agency seeks to invoke its gapfilling authority under Chevron, it must identify a

genuine ambiguity—one that allows for multiple reasonable applications of a statutory term that cannot

be ruled out through the use of “traditional tools of

statutory construction.” SAS Inst., Inc. v. Iancu, 138

S. Ct. 1348, 1358 (2018) (quoting Chevron, 467 U.S. at

843 n.9). “[O]nly when that legal toolkit is empty and

the interpretive question still has no single right answer” should a court conclude that the best reading of

the statute is that the agency has discretion to select

one of the possible reasonable answers. Kisor v.

Wilkie, 139 S. Ct. 2400, 2415 (2019).

Critically, a statute is not “ambiguous” within the

meaning of Chevron just because it does not explicitly

rule out a particular agency construction. “Were

courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy

virtually limitless hegemony, a result plainly out of

12

keeping with Chevron and quite likely with the Constitution as well.” Ry. Labor Executives Ass’n v. Nat’l

Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) (en

banc); accord Motion Picture Ass’n of Am. v. FCC, 309

F.3d 796, 805 (D.C. Cir. 2002); see also Moore v. Hannon Food Serv., Inc., 317 F.3d 489, 497 (5th Cir. 2003)

(stating that a regulation is not “ ‘ambiguous’ merely

because its authors did not have the forethought expressly to contradict any creative contortion that may

later be constructed to expand or prune its scope”).

However, where, as in this case, a grant of authority can otherwise be reasonably read to confer discretion to take a particular approach, the absence of an

explicit reference to that approach, in context, may

well represent an ambiguity implying permission to

adopt the approach—especially when the statutory

“silence” concerns some matter that the agency will

necessarily have to resolve one way or another in exercising its statutory authority. See, e.g., Entergy

Corp. v. Riverkeeper, Inc., 556 U.S. 208, 222–23 (2009)

(finding that statutory silence concerning agency’s

consideration of costs did not preclude agency from

considering them). Thus, in Chevron analysis, “sometimes statutory silence, when viewed in context, is

best interpreted as limiting agency discretion.” Id. In

other circumstances, “silence cannot bear that interpretation” and instead supports agency authority. Id.

For this reason, the Court’s Chevron precedents have,

from the beginning, referred to statutory “silence” together with “ambiguity” as potentially implying

agency authority to fill a “gap” in a statutory scheme.

see Chevron, 467 U.S. at 837. But the Court has never

read Chevron to mean that anything “that … is not

forbidden is permitted.” Am. Bus Ass’n v. Slater, 231

F.3d 1, 9 (D.C. Cir. 2000) (Sentelle, J., concurring).

13

Fifth, where a statutory scheme contains an ambiguity that is properly understood as a delegation of

gap-filling authority to an agency, an agency’s attempted exercise of that authority is entitled to deference only when the agency has complied with the procedures prescribed by Congress for the lawful exercise

of authority. The APA explicitly requires courts to set

aside agency actions taken “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). When,

as is typically the case, Congress has delegated an

agency authority to construe a statute through rulemaking or adjudication, a construction arrived at

through procedures that do not conform with applicable statutory or constitutional requirements is not entitled to Chevron deference. See, e.g., Encino Motorcars, 579 U.S. at 220; see also Long Island Care at

Home, Ltd. v. Coke, 551 U.S. 158, 174–76 (2007)

(unanimously granting Chevron deference to a

properly promulgated Labor Department regulation

implementing the Fair Labor Standards Act’s companion-worker exception).

Sixth, even where a statute contains a gap or ambiguity providing the agency a range of discretion and

the agency has followed the correct procedures in

seeking to exercise that authority, the statute may

still unambiguously rule out some purported exercises

of that discretion, rendering them “not in accordance

with law,” in the terms of section 706(2)(A) of the APA.

For example, although the statute at issue in Chevron

was ambiguous with respect to the scope of a “stationary source,” and the rule at issue reflected a reasonable resolution of that ambiguity, the statute would

have unambiguously ruled out a regulation that, say,

purported to define a facility located in New York as

being within the same “stationary source” as a facility

14

in Los Angeles. Whether such a regulation would be

viewed as failing at Chevron step one or step two, it

would doubtless be held unlawful because the delegation of authority implicit in statutory ambiguity cannot extend to an “agency interpretation [that] is

clearly beyond the scope of any conceivable ambiguity.” Home Concrete, 566 U.S. at 493 n.1 (Scalia, J.,

concurring in part and in the judgment). As Justice

Scalia colorfully observed in Home Concrete, “It does

not matter whether the word ‘yellow’ is ambiguous

when an agency has interpreted it to mean ‘purple.’ ”

Id. Rather, even “where Congress has established an

ambiguous line, the agency can go no further than the

ambiguity will fairly allow.” Arlington, 569 U.S. at

307. See also Scialabba v. Cuellar de Ororio, 573 U.S.

41, 80 (2014) (Alito, J., dissenting) (observing that a

statute “may well contain a great deal of ambiguity,

which the [agency] in its expertise is free to resolve, so

long as its resolution is a ‘permissible construction of

the statute’ ”).

This principle has been repeatedly applied by this

Court and lower federal courts to ensure that agencies

do not stray beyond the limits of their authority as defined by Congress. See, e.g., MCI Telecomms. Corp. v.

AT&T Co., 512 U.S. 218, 229 (1994) (“[A]n agency's

interpretation of a statute is not entitled to deference

when it goes beyond the meaning that the statute can

bear.”); Freeman v. Quicken Loans, Inc., 566 U.S. 624,

631 (2012) (same); Central United Life Ins. Co. v. Burwell, 827 F.3d 70, 73 (D.C. Cir. 2016) (“[I]f Congress

grants an agency flexibility to flesh out a particular

policy, the regulation will be upheld ‘as long as the

agency stays within that delegation.’ ”) (citation omitted); Aid Ass’n for Lutherans v. U.S. Postal Serv., 321

F.3d 1166, 1178–79 (D.C. Cir. 2003) (finding that “the

15

Postal Service transgressed the bounds of any delegation to fill alleged gaps in the statute, because the statute simply cannot bear the meaning that the Postal

Service seeks to give it”). When this constraint is applied, Chevron fully vindicates judicial authority to police the bounds of agency authority by “taking seriously, and applying rigorously, in all cases, statutory

limits on agencies’ authority.” Arlington, 569 U.S. at

307.

Finally, even if an agency regulation does not on

its face exceed the bounds of discretion conferred by

statute, it should be upheld under Chevron only if it

reflects a reasonable exercise of that authority—one

that can be sustained in light of the APA’s condemnation of agency action that is “arbitrary and capricious

and so cannot carry the force of law.” Encino Motorcars, 579 U.S. at 221. Accordingly, when an agency

adopts a construction of its authority under the statute, it “must give adequate reasons for its decisions,”

and “ ‘must examine the relevant data and articulate

a satisfactory explanation for its action including a rational connection between the facts found and the

choice made.’ ” Id. (quoting State Farm, 463 U.S. at

43). And when the agency’s action reflects a change in

the agency’s view of its authority, the agency must

“display awareness that it is changing position,” id.

(quoting FCC v. Fox Television Stations, Inc., 556 U.S.

502, 515 (2009)), and articulate reasons for doing so

that consider such factors as reliance interests, id. at

222 (quoting Smiley, 517 U.S. at 742). Failure to provide such an explanation for a change in the agency’s

view is sufficient “reason for holding an interpretation

to be … arbitrary and capricious,” id. (quoting Brand

X, 545 U.S. at 981), and hence beyond the bounds of

Chevron deference, id. (citing Mead, 533 U.S. at 227).

16

III. Chevron confines each of

branches to its proper role.

the

three

A. The significant limits on Chevron deference described above operate to prevent it from becoming a

source of constitutional imbalance. It allows agencies

to claim deference only when they exercise power legitimately conferred by Congress within the limits imposed by statutes conferring authority and the overarching constraints of the APA. And it recognizes the

reality that in conferring regulatory authority on administrative agencies, Congress cannot anticipate and

unambiguously address every issue that may arise in

implementing a statute. Congress may legitimately

grant agencies discretion to address statutory gaps

and to implement broadly worded statutory mandates, consistently with statutory language and structure and the policies they reflect. And “[i]t is quite impossible to achieve predictable (and relatively litigation-free) administration of the vast body of complex

laws committed to the charge of executive agencies

without the assurance that reviewing courts will accept reasonable and authoritative agency interpretation of ambiguous provisions.” Coeur Alaska, Inc. v.

S.E. Alaska Conservation Council, 557 U.S. 261, 296

(2009) (Scalia, J., concurring in part and in the judgment).

At its heart, Chevron sensibly addresses this reality, as even its skeptics have acknowledged:

Chevron makes a lot of sense in certain circumstances. It affords agencies discretion over how to

exercise authority delegated to them by Congress. For example, Congress might assign an

agency to issue rules to prevent companies from

dumping “unreasonable” levels of certain

17

pollutants. In such a case, what rises to the level

of “unreasonable” is a policy decision. So courts

should be leery of second-guessing that decision.

The theory is that Congress delegates the decision to an executive branch agency that makes

the policy decision, and that the courts should

stay out of it for the most part. That all makes a

great deal of sense and, in some ways, represents

the proper conjunction of the Chevron and State

Farm doctrines.

Brett M. Kavanaugh, Fixing Statutory Interpretation,

129 Harv. L. Rev. 2118, 2152 (2016).

Indeed, even as criticism of Chevron has mounted,

this Court has continued to uphold, often unanimously or by substantial majorities, reasonable

agency efforts to flesh out details of complex regulatory schemes that are not clearly resolved by underlying statutory provisions and that delegate gap-filling

authority to agencies. See, e.g., Cuozzo Speed Techs.,

LLC v. Lee, 579 U.S. 261, 276–83 (2016) (Patent and

Trademark Act); Holder v. Martinez Gutierrez, 566

U.S. at 591 (Immigration and Nationality Act); Mayo

Fdn. for Med. Educ. & Research v. United States, 562

U.S. 44, 54–58 (2011) (Internal Revenue Code); Entergy, 556 U.S. at 224 (Clean Water Act); United

States v. Eurodif S.A., 555 U.S. 305, 316 (2009) (antidumping provisions of Tariff Act); Long Island Care,

551 U.S. at 165 (Fair Labor Standards Act); Global

Crossing Telecomms., Inc. v. Metrophones Telecomms.,

Inc., 550 U.S. 45, 55 (2007) (Communications Act);

Barnhart v. Thomas, 540 U.S. 20, 26–30 (2003) (Social

Security Act).3 As these decisions reflect, when

––––––––––––––––––––––––

3 See also Ruderman v. Whitaker, 914 F.3d 567–73 (7th Cir.

2019) (Barrett, J.) (Immigration and Nationality Act).

18

Congress has properly delegated details of statutory

administration to an agency, deference to reasonable

exercises of agency discretion is consistent with congressional intent, the rule of law, and the proper role

of the courts.

B. To be sure, courts have sometimes misfired in

their application of Chevron and too readily sustained

an agency action that falls outside the scope of discretion conferred by a statute. In most such instances,

the error lies in a court’s failure to adhere to the limits

on Chevron deference discussed above. See, e.g., Mont.

Consumer Counsel v. FERC, 659 F.3d 910, 915–23

(9th Cir. 2011) (erroneously finding FERC’s rule permitting market-based rates for wholesale electricity to

be within the scope of discretion granted FERC by the

Federal Power Act’s requirements that rates be filed

and subject to review for reasonableness before they

go into effect); Consumer Fed’n of Am. v. U.S. Dep’t of

Health & Human Servs., 83 F.3d 1497, 1503–05 (D.C.

Cir. 1996) (mistakenly holding that HHS’s discretion

to establish qualifications for persons who administer

medical tests that are “appropriate” in light of the

risks and consequences of erroneous results allowed

the agency to establish qualifications it deemed appropriate based on another factor, without considering

those risks and consequences); Citizens Coal Council

v. Norton, 330 F.3d 478, 481–86 (D.C. Cir. 2003) (mistakenly concluding that a Surface Mining Control and

Reclamation Act provision requiring regulation of surface impacts of underground mines granted discretion

to the Department of Interior not to regulate such impacts).

That courts may sometimes misapply a standard,

or disagree about its application to a particular case,

is not a reason for discarding it. Of course, judges,

19

including Justices of this Court, will not always agree

on the existence or scope of a statutory ambiguity on

which an agency grounds an action for which it claims

deference. But this Court also often concludes that

lower court judges have erred in supplying their own

constructions of what this Court sees as unambiguous

statutory language. See, e.g., Facebook, Inc. v. Duguid,

141 S. Ct. 1163 (2021). And Justices of this Court

themselves often disagree about the plain meaning of

statutory language, as well as over the best reading of

complex statutory schemes that contain ambiguities.

See, e.g., Sackett v. EPA, 143 S. Ct. 1322 (2023); Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134

(2018); Pereira v. Sessions, 138 S. Ct. 2105 (2018);

King v. Burwell, 576 U.S. 473; Scialabba, 573 U.S. 41.

No one would suggest, however, that the Court should

abandon its insistence on adherence to a statute’s

plain meaning as an unworkable standard, or that it

should not, when necessary, attempt to determine a

statute’s best reading.

Moreover, the difficulties in determining a statute’s best reading in some cases suggest that it is not

obviously more workable for judges to resolve ambiguities than to apply Chevron where the conditions for

applying it are present. Agreement among judges that

the best reading of a statute is that it leaves a particular issue to an agency’s discretion may, indeed, be

more likely than agreement about how that issue is

best resolved as a de novo matter, particularly where

the issue falls within an area of agency expertise. See,

e.g., Eurodif, 555 U.S. at 886 (unanimously concluding

that Tariff Act delegated determination of the “better

view” of its application to the Department of Commerce). Moreover, arriving at a “best interpretation”

of a regulatory statute that lacks a plain meaning

20

necessarily involves considerations of statutory policies with which judges may lack expertise and familiarity. See Arlington, 569 U.S. at 303. Accordingly,

leaving the determination of such details of administration, in the first instance, to the agency charged

by Congress with carrying out the statute is not only

more workable than letting judges fill in regulatory

gaps, but also more consistent with the statutory

scheme enacted by Congress. Abandoning Chevron

would both fail to yield better results in the run of

cases and disregard Congress’s choices to delegate authority to agencies to implement regulatory statutes.

CONCLUSION

This Court should affirm the judgment of the court

of appeals.

Respectfully submitted,

SCOTT L. NELSON

Counsel of Record

ALLISON M. ZIEVE

PUBLIC CITIZEN LITIGATION

GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

snelson@citizen.org

Attorneys for Amicus Curiae

September 2023