Amicus Curiae Brief — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.
Supreme Court briefSep 22, 2023
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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
District of Columbia Circuit
————
BRIEF OF DISTRICT OF COLUMBIA,
CALIFORNIA, COLORADO, CONNECTICUT,
DELAWARE, HAWAII, ILLINOIS, MARYLAND,
MASSACHUSETTS, MICHIGAN, MINNESOTA,
NEVADA, NEW JERSEY, NEW MEXICO,
NEW YORK, NORTH CAROLINA, OREGON,
PENNSYLVANIA, RHODE ISLAND, VERMONT,
WASHINGTON, AND WISCONSIN AS AMICI
CURIAE IN SUPPORT OF RESPONDENTS
————
BRIAN L. SCHWALB
Attorney General
District of Columbia
CAROLINE S. VAN ZILE*
Solicitor General
ASHWIN P. PHATAK
Principal Deputy
Solicitor General
ALEXANDRA LICHTENSTEIN
Assistant Attorney General
Office of the Attorney General
400 6th St. NW, Suite 8100
Washington, D.C. 20001
(202) 724-6609
caroline.vanzile@dc.gov
* Counsel of Record
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
i
TABLE OF CONTENTS
Page
INTERESTS OF AMICI CURIAE ............................. 1
SUMMARY OF ARGUMENT.................................... 2
ARGUMENT .............................................................. 4
I. Chevron Promotes Successful Cooperative
Federalism Programs ........................................... 5
A. Chevron offers predictability in the limited
circumstances where a statute is genuinely
ambiguous ........................................................ 6
B. The Chevron framework is foundational to
cooperative federalism programs .................. 10
C. Overruling Chevron would be costly and
chaotic ............................................................ 19
II. The Court Should Clarify Chevron, Not Overrule
It .......................................................................... 22
CONCLUSION ......................................................... 29
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Adams Fruit Co. v. Barrett,
494 U.S. 638 (1990) ............................................... 7
Am. Paper Inst., Inc. v. Am. Elec. Power Serv.
Corp., 461 U.S. 402 (1983) .................................... 8
Arkansas v. Oklahoma,
503 U.S. 91 (1992) ............................................... 15
Barnhart v. Walton,
535 U.S. 212 (2002) ............................................. 28
BellSouth Tel., Inc. v. MCImetro Access
Transmission Servs., Inc.,
317 F.3d 1270 (11th Cir. 2003)..................... 13, 14
Bowman Transp., Inc. v. Ark.-Best Freight
Sys., Inc., 419 U.S. 281 (1974) ............................ 27
Buffington v. McDonough,
143 S. Ct. 14 (2022)............................................. 26
Cal. Bldg. Indus. Ass’n v. Bay Area Air
Quality Mgmt. Dist.,
362 P.3d 792 (Cal. 2015) ..................................... 25
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
467 U.S. 837 (1984) ............... 1, 2, 7, 23, 24, 26, 27
City of Anaheim v. FERC,
558 F.3d 521 (D.C. Cir. 2009) ............................. 28
iii
City of Arlington v. FCC,
569 U.S. 290 (2013) ....................... 7, 10, 21, 22, 27
Core Commc’ns, Inc. v. Verizon Pa., Inc.,
493 F.3d 333 (3d Cir. 2007) ................................ 14
Douglas v. Indep. Living Ctr. of S. Cal.,
565 U.S. 606 (2012) ............................................. 16
Encino Motorcars, LLC v. Navarro,
579 U.S. 211 (2016) ............................................. 27
Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612 (2018)........................................... 7
FCC v. Fox Television Stations, Inc.,
556 U.S. 502 (2009) .............................................. 8
Friends of Animals v. Haaland,
997 F.3d 1010 (9th Cir. 2021)....................... 28, 29
Friends of the Earth, Inc. v. EPA,
446 F.3d 140 (D.C. Cir. 2006) ............................. 28
Global NAPS, Inc. v. FCC,
291 F.3d 832 (D.C. Cir. 2002) ....................... 14, 15
In re Starpower Commc’ns, LLC,
15 F.C.C. Rcd. 11277 (2000) ............................... 13
Judulang v. Holder,
565 U.S. 42 (2011) ............................................... 27
Kisor v. Wilkie,
139 S. Ct. 2400 (2019)................................... 23, 24
iv
Luminant Generation Co. v. EPA,
714 F.3d 841 (5th Cir. 2013)............................... 15
Managed Pharmacy Care v. Sebelius,
716 F.3d 1235 (9th Cir. 2013) ........... 8, 17, 18, 19
Marathon Oil Co. v. State, Dep’t of Nat. Res.,
254 P.3d 1078 (Alaska 2011) .............................. 25
Martin v. Occupational Safety & Health Rev.
Comm’n, 499 U.S. 144 (1991) ............................. 23
Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012) ......................................... 1, 12
Nat’l Parks Conservation Ass’n v. EPA,
759 F.3d 969 (8th Cir. 2014)................................. 9
Near v. Minnesota ex rel. Olson,
283 U.S. 697 (1931) ............................................... 5
New York v. Nat’l Highway Traffic Safety
Admin., 974 F.3d 87 (2d Cir. 2020) ...................... 1
NLRB v. Alt. Ent., Inc.,
858 F.3d 393 (6th Cir. 2017)................................. 7
Pereira v. Sessions,
138 S. Ct. 2105 (2018)..................................... 6, 26
Perry v. Dowling,
95 F.3d 231 (2d Cir. 1996) .................................. 15
Pharm. Rsch. & Mfrs. of Am. v. Thompson,
362 F.3d 817 (D.C. Cir. 2004) ............................. 18
v
Robinson v. Shell Oil Co.,
519 U.S. 337 (1997) ............................................... 8
Springfield Educ. Ass’n v. Springfield Sch.
Bd., 621 P.2d 547 (Or. 1980) .............................. 25
Sw. Bell Tel. Co. v. Brooks Fiber Commc’ns of
Okla., Inc., 235 F.3d 493 (10th Cir. 2000) ......... 14
Sw. Bell Tel. Co. v. Connect Commc’ns Corp.,
225 F.3d 942 (8th Cir. 2000)............................... 14
Sw. Bell Tel. Co. v. Pub. Util. Comm’n of Tex.,
208 F.3d 475 (5th Cir. 2000)............................... 13
Sw. Elec. Power Co. v. EPA,
920 F.3d 999 (5th Cir. 2019)............................... 28
Texas v. EPA,
983 F.3d 826 (5th Cir. 2020)................................. 8
Util. Air Regul. Grp. v. EPA,
573 U.S. 302 (2014) ..................................... 1, 8, 27
Statutes and Regulations
15 U.S.C. § 717c ....................................................... 24
16 U.S.C. § 824a-3 ...................................................... 8
42 U.S.C. § 1396a ..................................................... 16
42 U.S.C. § 7409 ......................................................... 8
47 U.S.C. § 251 ......................................................... 13
vi
47 U.S.C. § 252 ......................................................... 13
47 U.S.C. § 309 ......................................................... 24
49 U.S.C. § 11122 ..................................................... 24
42 C.F.R § 430.15 ..................................................... 16
Other Authorities
Kent Barnett & Christopher J. Walker,
Chevron in the Circuit Courts,
116 Mich. L. Rev. 1 (2017) .................................... 4
Nicholas R. Bednar & Kristin E. Hickman,
Chevron’s Inevitability,
85 Geo. Wash. L. Rev. 1392 (2017)..................... 22
Lisa Schultz Bressman & Abbe R. Gluck,
Statutory Interpretation From the Inside—
An Empirical Study of Congressional
Drafting, Delegation, and the Canons: Part
I, 65 Stan. L. Rev. 901 (2013) ............................. 22
Jerry Brito & Veronique de Rugy, Midnight
Regulations and Regulatory Review,
61 Admin. L. Rev. 163 (2009) ............................... 9
Bridget A. Fahey, Coordinated Rulemaking
and Cooperative Federalism’s
Administrative Law,
132 Yale L.J. 1320 (2023) ............. 5, 12, 15, 16, 17
Jacob E. Gersen & Anne Joseph O’Connell,
Deadlines in Administrative Law,
vii
156 U. Pa. L. Rev. 923 (2008) ............................... 9
Abbe R. Gluck, Interstatutory Federalism and
Statutory Interpretation: State
Implementation of Federal Law in Health
Reform and Beyond,
121 Yale L.J. 534 (2011) ................................. 5, 20
Mark C. Gordon, Differing Paradigms,
Similar Flaws: Constructing a New
Approach to Federalism in Congress and
the Court,
14 Yale L. & Pol’y Rev. 187 (1996) ..................... 10
Brett M. Kavanaugh, Fixing Statutory
Interpretation,
129 Harv. L. Rev. 2118 (2016) ............................ 27
Brett M. Kavanaugh, Keynote Address: Two
Challenges for the Judge As Umpire:
Statutory Ambiguity and Constitutional
Exceptions,
92 Notre Dame L. Rev. 1907 (2017) ................... 26
Thomas W. Merrill & Kristin E. Hickman,
Chevron’s Domain, 89 Geo. L.J. 833 (2001) ....... 21
Henry P. Monaghan, Marbury and the
Administrative State,
83 Colum. L. Rev. 1 (1983) ................................. 24
Anne Joseph O’Connell, Agency Rulemaking
and Political Transitions,
105 Nw. U. L. Rev. 471 (2011).............................. 9
viii
Dave Owen, Cooperative Subfederalism,
9 U.C. Irvine L. Rev. 177 (2018) ........................... 6
Richard J. Pierce, Jr., Regulation,
Deregulation, Federalism and
Administrative Law: Agency Power to
Preempt State Regulation,
46 U. Pitt. L. Rev. 607 (1985) ............................... 6
Aaron Saiger, Chevron and Deference in State
Administrative Law,
83 Fordham L. Rev. 555 (2014) .......................... 24
Joshua D. Sarnoff, Cooperative Federalism,
the Delegation of Federal Power, and the
Constitution, 39 Ariz. L. Rev. 205 (1997) ..... 10, 11
State Budget Basics, Ctr. On Budget & Pol’y
Priorities (May 24, 2022) ................................... 20
Ryan Stoa, From the Clean Power Plan to the
Affordable Clean Energy Rule: How
Regulated Entities Adapt to Regulatory
Change and Uncertainty,
47 Hofstra L. Rev. 863 (2019)............................. 21
Cass R. Sunstein, Chevron as Law,
107 Geo. L.J. 1613 (2019) ................................... 23
Philip J. Weiser, Chevron, Cooperative
Federalism, and Telecommunications
Reform, 52 Vand. L. Rev. 1 (1999) ..................... 27
Philip J. Weiser, Federal Common Law,
Cooperative Federalism, and the
ix
Enforcement of the Telecom Act,
76 N.Y.U. L. Rev. 1692 (2001) .......... 10, 11, 13, 21
Philip J. Weiser, Towards a Constitutional
Architecture for Cooperative Federalism,
79 N.C. L. Rev. 663 (2001) .................................. 11
1
INTERESTS OF AMICI CURIAE
Amici curiae the District of Columbia and the
States of California, Colorado, Connecticut,
Delaware,
Hawaii,
Illinois,
Maryland,
Massachusetts, Michigan, Minnesota, Nevada, New
Jersey, New Mexico, New York, North Carolina,
Oregon, Pennsylvania, Rhode Island, Vermont,
Washington, and Wisconsin (collectively, “Amici
States”) submit this brief in support of Respondents.
Amici States urge this Court to reaffirm the
framework established by Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, 467 U.S. 837
(1984), while clarifying the doctrine’s limits.
Amici States have extensive experience with the
Chevron framework. They have joined with the
federal government to defend reasonable agency
action, see, e.g., Util. Air Regul. Grp. v. EPA, 573 U.S.
302 (2014), and have challenged agency action that
strays beyond what Congress has authorized, see, e.g.,
New York v. Nat’l Highway Traffic Safety Admin., 974
F.3d 87 (2d Cir. 2020). They also cooperate with the
federal government to jointly administer a host of
cooperative federalism programs, from policing to
disaster relief efforts. Many of these programs
require that Amici States work with the federal
government to develop complex and highly technical
regulatory regimes, often over the course of decades.
See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.
519, 581 (2012).
Chevron offers a necessary
foundation of stability for those programs.
The Chevron framework strikes an appropriate
balance between, on the one hand, confining agencies
to the parameters set by Congress, and on the other,
allowing them to operate effectively within those
2
parameters. Agencies are, of course, bound to follow
Congress’s unambiguous directions. See Chevron,
467 U.S. at 842-43 (“If the intent of Congress is clear,
that is the end of the matter; for the court, as well as
the agency, must give effect to the unambiguously
expressed intent of Congress.”). But as Amici States
know, it is impossible to legislate every detail needed
for the implementation and enforcement of a complex
statute.
Expert agencies have the technical
knowledge, research capabilities, and on-the-ground
experience to fill in the gaps left by the legislature to
best accomplish the goals of regulatory programs.
Rather than overruling Chevron, causing doctrinal
upheaval and injecting uncertainty into the
regulatory sphere, this Court should reaffirm the
Chevron framework while clarifying its proper scope.
SUMMARY OF ARGUMENT
I. As this Court has consistently acknowledged,
Congress is not well positioned to legislate the minute
details of complex governmental programs. Instead,
it often delegates responsibility for filling in those
gaps to federal agencies, which have the expertise and
experience necessary to carry out Congress’s vision.
With increasing frequency, Congress has chosen to
include the states as partners in these efforts,
directing state and federal agencies to work together
to implement federal law. Under this cooperative
federalism framework, both states and the federal
government benefit from shared knowledge, efficient
use of resources, and local flexibility.
The nature of cooperative federalism programs
makes stability and a measure of predictability
essential. States must create plans and allocate
3
resources far in advance, and unforeseeable changes
in a program mid-stream can make its successful
implementation impossible. Chevron, under which
courts defer to federal agencies’ reasonable
interpretations of ambiguous statutes, fosters
stability in two main ways. First, when federal
agencies offer fair interpretations of the law to fill
statutory gaps left by Congress, Chevron allows states
to rely on those interpretations in developing their
implementation plans. Second, once those plans are
approved by the federal agency, Chevron offers states
some reassurance that the implementation process is
unlikely to be derailed by a third-party legal
challenge. Overruling Chevron would undermine
these important government programs and increase
costs for both states and regulated entities.
II. As Amici States’ experiences demonstrate,
deferring to agencies’ interpretations of truly
ambiguous statutes advances several important
values. It respects legislators’ decision to delegate
policymaking discretion to politically accountable
agencies rather than to courts. It acknowledges that
agencies possess technical expertise that courts do
not, better positioning them to make key policy
determinations. And given that Congress has been
legislating with the Chevron framework as its
backdrop for decades, preserving the doctrine helps
safeguard congressional intent.
That is not to say that deference to agencies leaves
courts with no role to play. As Chevron itself
emphasizes, deference is due only after a court
determines that Congress has delegated authority to
an agency to resolve the relevant question. The Court
should take this opportunity to reiterate and clarify
4
the limits of Chevron deference, emphasizing that it
applies in the limited circumstances where Congress
actually intended that an agency exercise interpretive
authority, and only when the interpretation offered is
reasonable in light of the statutory scheme.
ARGUMENT
This Court should reject Petitioners’ invitation to
discard the longstanding framework of Chevron.
Contrary to Petitioners’ claims, Chevron is not a
“reliance-destroying doctrine.”
Pet’rs Br. 16-17.
Indeed, Amici States have long relied on the stability
Chevron provides. Under the Chevron framework,
states need not guess which reading of a genuinely
ambiguous statute a particular court might conclude
is best. Instead, they have assurance that an agency’s
reasonable interpretation of a statute it administers
is likely to be upheld—albeit only where the
interpretation is truly reasonable and the statute is
truly ambiguous. See Kent Barnett & Christopher J.
Walker, Chevron in the Circuit Courts, 116 Mich. L.
Rev. 1, 6 (2017).
The Chevron framework is particularly important
to the continued efficacy of cooperative federalism
programs.
States partner with the federal
government to administer a wide range of complex
regulatory programs, and they need to be confident
that they can rely on federal agencies’ reasonable
efforts to fill statutory gaps. Overruling Chevron
would inject uncertainty into the process, threatening
states’ ability to successfully develop and implement
long-term plans. The Court should affirm the decision
below and make clear that the Chevron framework—
5
subject to the limitations that Chevron itself sets
forth—remains good law.
I.
Chevron Promotes Successful Cooperative
Federalism Programs.
As sovereigns, Amici States have a duty to protect
the health, safety, and welfare of their populations.
See, e.g., Near v. Minnesota ex rel. Olson, 283 U.S.
697, 707 (1931) (discussing states’ “sovereign power”
to “promote the health, safety, morals, and general
welfare of its people”).
Often, they do so as
independent sovereigns, acting within their
traditional regulatory spheres to develop and
implement their own state-level programs. More and
more frequently, however, states work together with
the federal government to jointly administer
regulatory programs, especially those that are highly
complex or require specialized technical expertise.
See Abbe R. Gluck, Interstatutory Federalism and
Statutory Interpretation: State Implementation of
Federal Law in Health Reform and Beyond, 121 Yale
L.J. 534, 552 (2011). Indeed, many of the nation’s
largest regulatory programs, from communications
infrastructure
to
pollution
control,
involve
cooperation between state and federal agencies. See
Bridget A. Fahey, Coordinated Rulemaking and
Cooperative Federalism’s Administrative Law, 132
Yale L.J. 1320, 1323 (2023).
These complex and technical statutes often involve
either thorny ambiguities or gaps left by Congress for
the agency to fill. In those circumstances, Chevron is
crucial. To successfully develop and implement the
multifaceted, long-term plans these programs
require, states must be able to rely on federal
6
agencies’ reasonable interpretations of ambiguous
statutes. This does not require “reflexive deference”
to agencies. Pet’rs Br. 33 (quoting Pereira v. Sessions,
138 S. Ct. 2105, 2120 (2018) (Kennedy, J.,
concurring)). But it does leave room for agencies to
exercise their expert judgment, provided that there is
an ambiguity in the statute and the agency’s path is
reasonable. If a federal agency can demonstrate that
its interpretation meets these parameters, then
deference is both appropriate and important.
A. Chevron offers predictability in the
limited circumstances where a statute
is genuinely ambiguous.
Over the past century, Congress has increasingly
adopted a regulatory model that allocates authority
jointly to federal agencies and state partners. See
Dave Owen, Cooperative Subfederalism, 9 U.C. Irvine
L. Rev. 177, 178-79 (2018); see also Richard J. Pierce,
Jr., Regulation, Deregulation, Federalism and
Administrative Law: Agency Power to Preempt State
Regulation, 46 U. Pitt. L. Rev. 607, 643 (1985)
(“Congress . . . can combine federal and state
regulatory power through any form of cooperative or
creative federalism it finds appropriate to a particular
field of regulation.”). Under this model, the federal
government sets program mandates and goals, and
states are given the option of taking the lead on
implementation within their borders. See Owen,
Cooperative Subfederalism, supra, at 179. The two
then continue to work together, with the federal
government exercising an oversight role and the
states offering feedback and amendments to the
implementation plan based on their experiences and
local needs. See id.
7
The Chevron framework is vital to the success of
cooperative federalism efforts: if states could not
predict
that
reasonable
federal
agency
interpretations of ambiguous statutes would survive
judicial review, or if they were subject to conflicting
mandates from various federal courts, it would result
in costly chaos that would undermine the purposes of
these programs. But Chevron is far from a blank
check for agencies. At Step One, for example,
deference is due only after a court determines that
Congress has delegated authority, implicitly or
explicitly, for an agency to resolve a genuine
ambiguity in the law or fill a gap left by Congress. See
Chevron, 467 U.S. at 844; see also Adams Fruit Co. v.
Barrett, 494 U.S. 638, 649 (1990) (“A precondition to
deference under Chevron is a congressional
delegation of administrative authority.”). Before
contemplating deference, judges must “apply[] the
ordinary tools of statutory construction” to determine
the meaning of the statute. City of Arlington v. FCC,
569 U.S. 290, 296 (2013) (citing Chevron, 467 U.S. at
842-43). When textual “canons” of interpretation
“supply an answer, ‘Chevron leaves the stage’” and no
deference is due. Epic Sys. Corp. v. Lewis, 138 S. Ct.
1612, 1630 (2018) (quoting NLRB v. Alt. Ent., Inc.,
858 F.3d 393, 417 (6th Cir. 2017) (Sutton, J.,
concurring in part and dissenting in part)).
And Step Two—where deference occurs—applies
only where a court has “employ[ed] traditional tools of
statutory construction” and come up short. Chevron,
467 U.S. at 843 n.9. Even then, to warrant deference
an agency interpretation must be “permissible” and
“reasonable.” Id. at 843-44 & n.11. This Court has
held that an agency’s interpretation of even an
ambiguous provision must “account for both ‘the
8
specific context in which . . . language is used’ and
‘the broader context of the statute as a whole.”’ Util.
Air, 573 U.S. at 321 (quoting Robinson v. Shell Oil
Co., 519 U.S. 337, 341 (1997)). Similarly, courts will
not affirm a change in an agency’s interpretation
unless it “display[s] an awareness that it is changing
position” and “show[s] good reasons for the new
policy.” FCC v. Fox Television Stations, Inc., 556 U.S.
502, 515 (2009). If the agency’s interpretation is
unreasoned or represents an unexplained flip-flop,
judges should reject it.
However, where a statute is genuinely
ambiguous—or where Congress has clearly delegated
a task to an agency—and the agency acts reasonably,
Chevron plays an important role.
And those
circumstances arise often in cooperative federalism’s
sprawling and complex statutory schemes. Technical
statutes often direct the federal agencies to set
standards that are “reasonable” or “appropriate.” See,
e.g., Am. Paper Inst., Inc. v. Am. Elec. Power Serv.
Corp., 461 U.S. 402, 405 (1983) (discussing the
statutory requirement that FERC set rates that are
“just and reasonable to the electric consumers of the
electric utility and in the public interest” (quoting 16
U.S.C. § 824a-3(b))); Texas v. EPA, 983 F.3d 826 (5th
Cir. 2020) (explaining that the Clean Air Act’s
cooperative federalism program directs EPA to
promulgate new air quality standards “as may be
appropriate” (quoting 42 U.S.C. § 7409(d)(1))). And
cooperative federalism statutes describe the
requirements of state plans with “words like
‘consistent,’ ‘sufficient,’ ‘efficiency,’ and ‘economy,’
without describing any specific steps a State must
take in order to meet those standards.” Managed
Pharmacy Care v. Sebelius, 716 F.3d 1235, 1247-48
9
(9th Cir. 2013); see also Nat’l Parks Conservation
Ass’n v. EPA, 759 F.3d 969, 971 (8th Cir. 2014)
(describing the Clean Air Act’s requirement that state
implementation plans “assure reasonable progress
toward the CAA’s national visibility goals” (internal
quotation marks and citation omitted)). When federal
agencies issue reasonable regulations interpreting
these capacious terms, Amici States should be able to
rely on them.
It is true that Chevron creates its own
opportunities for instability. As other Amici have
noted, Chevron allows federal agencies to change
course, with their new interpretations receiving
deference so long as they are reasonable and align
with the statutory text. See Br. of West Virginia et al.
as Amicus Curiae in Support of Pet’rs 12-13. But
these changes in position are relatively infrequent
and generally occur after there has been a change in
administration. See Jerry Brito & Veronique de
Rugy, Midnight Regulations and Regulatory Review,
61 Admin. L. Rev. 163, 172 (2009) (noting that
“political and legal obstacles prevent extensive
repeal” of agency regulations); Anne Joseph
O’Connell, Agency Rulemaking and Political
Transitions, 105 Nw. U. L. Rev. 471, 497 (2011)
(explaining that new administrations may seek to
alter rules). And the process of rescinding a rule or
promulgating a new one can be lengthy—even more
so if the rule gets bogged down in litigation. See Jacob
E. Gersen & Anne Joseph O’Connell, Deadlines in
Administrative Law, 156 U. Pa. L. Rev. 923, 945
(2008) (finding that rulemakings tend to last between
one and two years). While the risk that a federal
agency may change its interpretation after four to
eight years creates some uncertainty for states, that
10
uncertainty is far outweighed by the day-to-day
predictability that Chevron promotes. See City of
Arlington, 569 U.S. at 307 (noting the “stabilizing
purpose of Chevron”). After all, if an agency intends
to undo a prior statutory interpretation, states will
often have years of notice and time to prepare prior to
the change. See id. But when a court strikes down an
agency’s interpretation and the regulations that rely
on it, the result can be abrupt and chaotic.
B. The Chevron framework is foundational
to cooperative federalism programs.
While not every problem requires federal
intervention, cooperative federalism programs are
critical to addressing regulatory problems that “are so
complex that they cannot be resolved by one level of
government acting alone.” Philip J. Weiser, Federal
Common Law, Cooperative Federalism, and the
Enforcement of the Telecom Act, 76 N.Y.U. L. Rev.
1692, 1699 (2001) (quoting Mark C. Gordon, Differing
Paradigms, Similar Flaws: Constructing a New
Approach to Federalism in Congress and the Court, 14
Yale L. & Pol’y Rev. 187, 215 (1996)). They also offer
several benefits over the traditional federal-only
regulatory model. Cooperative federalism builds on
state agencies’ technical knowledge and pre-existing
regulatory structures, maximizing resources and
making programs more efficient. See Joshua D.
Sarnoff, Cooperative Federalism, the Delegation of
Federal Power, and the Constitution, 39 Ariz. L. Rev.
205, 213 (1997) (explaining that partnerships with
states “result in resource savings and economies of
scale”). It also allows for flexibility in the design and
implementation of programs, which permits more
experimentation among the states and better reflects
11
local conditions and needs. See Weiser, Federal
Common Law, supra, at 1699 (“The federal
government simply does not have the know-how and
resources to tailor broad standards to local
circumstances.”).
Cooperative federalism programs are not, as other
Amici have suggested, simply a mechanism by which
federal agencies exercise “control” over state and local
governments. Br. of West Virginia et al. as Amicus
Curiae in Support of Pet’rs 21. To the contrary,
cooperative federalism programs are more respectful
of state interests and autonomy than traditional
regulatory schemes. “Rather than preempting the
authority of state agencies and supplanting them
with federal branch offices, cooperative federalism
programs invite state agencies to superintend federal
law.” Weiser, Federal Common Law, supra, at 1695;
see also Sarnoff, Cooperative Federalism, supra, at
212-13 (noting that cooperative federalism programs
“preserve and protect traditional state regulatory
roles”). Although federal agencies still exercise some
control in cooperative federalism schemes—including
setting
baseline
rules
and
supervising
implementation efforts—state agencies retain
discretion “to implement the federal law, supplement
it with more stringent standards, and, in some cases,
receive an exemption from federal requirements.”
Weiser, Federal Common Law, supra, at 1696.
Cooperative federalism programs are thus best
understood as “a sharing of regulatory authority
between the federal government and the states.”
Philip J. Weiser, Towards a Constitutional
Architecture for Cooperative Federalism, 79 N.C. L.
Rev. 663, 665 (2001).
12
The result of this shared regulatory authority is a
system of “intricate statutory and administrative
regimes” developed cooperatively “over the course of
many decades.” Nat’l Fed’n of Indep. Bus., 567 U.S.
at 581 (discussing Medicaid programs). State and
federal agencies engage in dynamic, iterative
planning processes to develop cooperative federalism
programs, drawing on both technical knowledge and
policy expertise to create regulatory requirements
and long-term implementation plans. See Fahey,
Coordinated Rulemaking, supra, at 1333-43. Given
the importance, complexity, and forward-looking
nature of these programs, predictability is key—state
agencies need to be confident about the parameters
within which they are developing and implementing
their regulatory schemes. Chevron deference enables
states to rely on reasonable federal agency
interpretations in both developing their state plans
and in implementing those plans.
First, Chevron deference creates a predictable
regulatory environment in which states can develop
long-term plans. Federal agency interpretations of
relevant statutory provisions set the parameters that
states must abide by in crafting their plans. See id.
at 1336-37. As they invest time and resources in
designing their regulatory programs, states must be
reasonably confident that a federal agency’s
interpretation is likely to endure—provided, of
course, that it aligns with the clear language of the
statute and is otherwise reasonable. In the absence
of that settled expectation, states would be left to
develop complex, long-term plans within a constantly
shifting regulatory environment.
13
For example, the Telecommunications Act of 1996,
47 U.S.C. §§ 251 et seq., established a cooperative
federalism program that gives state public utility
commissions considerable discretion in opening local
telephone markets to competition. See generally
Weiser, Federal Common Law, supra, at 1694. Under
the Act, state commissions have responsibility for
approving certain agreements between telephone
companies. See 47 U.S.C. § 252(e). The FCC
interpreted this language to encompass not only
approval of such agreements, but also their
interpretation and enforcement, see In re Starpower
Commc’ns, LLC, 15 F.C.C. Rcd. 11277 (2000), which
courts have found to be a natural reading of the
statute, see Sw. Bell Tel. Co. v. Pub. Util. Comm’n of
Tex., 208 F.3d 475, 479-80 (5th Cir. 2000) (“[T]he Act’s
grant to the state commissions of plenary authority to
approve or disapprove these interconnection
agreements necessarily carries with it the authority
to interpret and enforce the provisions of agreements
that state commissions have approved.”). States
acted in reliance on the FCC’s reasonable
interpretation, investing resources to ensure that
their commissions would be able to handle both
approval and enforcement responsibilities.
See
Weiser, Federal Common Law, supra, at 1738 n.240
(noting that “the nature of the project” and the role of
state agencies was “dramatically different from the
historic regulatory project”).
The FCC’s interpretation granting states this
responsibility was challenged in several circuits. See,
e.g., BellSouth Tel., Inc. v. MCImetro Access
Transmission Servs., Inc., 317 F.3d 1270, 1273 (11th
Cir. 2003) (en banc) (addressing the question whether
a state commission had authority to interpret and
14
enforce agreements it had previously approved); Core
Commc’ns, Inc. v. Verizon Pa., Inc., 493 F.3d 333, 33844 (3d Cir. 2007) (addressing a telecommunications
company’s argument that it was not required to
litigate its claim for breach of an agreement before the
public utility commission because it did not fall within
the commission’s statutory responsibility); Sw. Bell
Tel. Co. v. Brooks Fiber Commc’ns of Okla., Inc., 235
F.3d 493, 496 (10th Cir. 2000) (discussing as a
jurisdictional matter whether the state commission
had the authority to interpret an agreement); Sw. Bell
Tel. Co. v. Connect Commc’ns Corp., 225 F.3d 942,
946-47 (8th Cir. 2000) (similar). Applying Chevron,
the reviewing courts unanimously upheld the FCC’s
determination as a reasonable interpretation of
ambiguous language in the Telecommunications Act.
See BellSouth, 317 F.3d at 1276-77 (noting that the
FCC’s determination was entitled to Chevron
deference and that no court had held otherwise).
The Chevron framework fostered clarity for both
state and federal participants, who could be confident
about their respective jurisdiction and overall role in
the program. See Core Commc’ns, 493 F.3d at 342
(explaining that the FCC’s interpretation established
a clear role for the state commissions in deciding
intermediation and enforcement disputes, which
advanced the Act’s goal of cooperative federalism); see
also Global NAPS, Inc. v. FCC, 291 F.3d 832, 837-39
(D.C. Cir. 2002) (upholding an FCC decision not to
preempt a state commission because the relevant
determination was in the state’s sphere of
responsibility rather than the federal government’s).
As a result, the states’ investment in enforcement
mechanisms did not go to waste. And Chevron was
also beneficial to the regulated entities, who gained
15
clarity about the proper decisionmaker and review
process, “saving the time and expense of
simultaneous litigation on multiple fronts” and
avoiding the confusion of a patchwork of approaches
in different circuits. Global NAPS, 291 F.3d at 838.
Second, Chevron fosters stability in the
implementation of state plans. Although states rely
on federal agency interpretations in developing their
regulatory proposals, they must also fill in some gaps
themselves. The state proposals, along with the
interpretive choices on which they rely, are then
subject to review by the federal agency. See Fahey,
Coordinated Rulemaking, supra, at 1372. If the
federal agency determines that the proposal complies
with all regulatory and statutory requirements, it will
grant its approval, allowing the state to begin the
implementation process.
Federal agency approvals of state plans are
analyzed under Chevron. See Arkansas v. Oklahoma,
503 U.S. 91, 110 (1992) (applying Chevron to review a
permit issued by EPA under the Clean Water Act that
incorporated Oklahoma’s state water quality
standards); Luminant Generation Co. v. EPA, 714
F.3d 841, 853 (5th Cir. 2013) (applying Chevron to
EPA’s approval of Texas’s State Implementation Plan
under the Clean Air Act); Perry v. Dowling, 95 F.3d
231, 237 (2d Cir. 1996) (applying Chevron to review of
a state Medicaid plan that “received prior federalagency approval”). As this Court has explained, when
a federal statute “commits to the federal agency the
power to administer a federal program” and “the
agency has acted under this grant of authority” by
approving a state plan, “[t]hat decision carries
16
weight.” Douglas v. Indep. Living Ctr. of S. Cal., 565
U.S. 606, 614-15 (2012).
To take just one example, the efficacy of
Medicaid—the largest cooperative program in the
nation—depends on the predictability engendered by
Chevron. Medicaid is “a $627 billion program of
public insurance that claims double-digit shares of
state and federal budgets, enrolls seventy-four million
people, and has an administrative footprint to match.”
Fahey, Coordinated Rulemaking, supra, at 1334. Its
governing statutes “permit each government to
pursue a range of programmatic goals,” so to initiate
a state Medicaid program, the Department of Health
and Human Services (“HHS”) 1 and the state Medicaid
agency “must negotiate a state program that complies
with each agency’s legislative authorization.” Id.
These negotiations are memorialized in an
intergovernmental agreement known as a Medicaid
state plan, which may be modified through state plan
amendments (“SPAs”) proposed by the states and
approved by the federal government. See id. at 133437.
Even after the state and federal agencies “agree to
the general program,” they must still fill in an
Congress delegated responsibility for administering
the Medicaid program and reviewing state Medicaid plans
and amendments to the Secretary of HHS. See 42 U.S.C.
§ 1396a(b). The Secretary, in turn, delegated that
responsibility to the regional administrator for the Center
for Medicare and Medicaid Services (“CMS”). See 42
C.F.R. § 430.15(b). CMS therefore operates as the federal
agency partner in practice.
1
17
overwhelming array of details about how the program
will function. Id. at 1335. Regulators “decide who is
eligible for the program, what they are eligible to
receive, . . . how eligibility will be determined,” and
much more. Id. State Medicaid plans and SPAs are,
as a result, highly detailed and complex regulatory
documents that reflect the investment of enormous
amounts of time and resources. See id. at 1338
(describing the “almost dizzying array of state
processes” required to craft an SPA); id. at 1343
(noting that “HHS invests significant effort in
evaluating proposed plan amendments”). To be
willing to make such an investment, it is key that
regulators feel confident that their efforts to interpret
obvious statutory gaps are likely to withstand judicial
scrutiny as long as they are reasonable.
California’s experience attempting to cut costs by
implementing reduced reimbursement rates for
certain Medicaid services illustrates the importance
of Chevron deference. In 2011, Medi-Cal, California’s
Medicaid program, submitted two SPAs to the Center
for Medicare and Medicaid Services (“CMS”), each of
which proposed rate reductions for certain services
covered by Medicaid. See Managed Pharmacy Care,
716 F.3d at 1240. While developing the SPAs, the
state agency “studied the potential impact of rate
reductions on many Medi-Cal services, reviewing
data collected and analyzed over several years in the
process.” Id. at 1242. In support of its proposed
amendments, the state agency “submitted access
studies for each of the affected services” and “studies
of providers’ costs with respect to some of the
services.”
Id.
It also “submitted an 82-page
monitoring plan, which identified 23 different
18
measures” the state agency planned to “study on a
recurring basis to ensure the SPAs d[id] not
negatively affect beneficiary access.” Id.
CMS approved both SPAs. Id. at 1243. Shortly
thereafter, various providers and beneficiaries filed
suit to challenge the rate reductions, claiming that
the state had violated the Medicaid Act because it had
not performed cost studies, which the challengers
argued the statute required. Id. The Ninth Circuit
disagreed. It explained that “through her approvals
of the SPAs,” the Secretary had reasonably
interpreted the Medicaid Act not to require “any
particular methodology a State must follow before its
proposed rates may be approved.” Id. at 1245. After
all, the “statute sa[id] nothing about cost studies” or
“any particular methodology.” Id. at 1249. It stated
only that “reimbursement rates must be consistent
with efficiency, economy, and quality care.” Id.
Considering the breadth of that language, the gaps it
left, and the reasonableness of the agency’s
interpretation, the court held that Chevron deference
applied. Id. at 1247.
In reaching this conclusion, the Ninth Circuit
emphasized the detailed, elaborate nature of state
plans and the expertise that the federal agency must
draw on to evaluate them.
State plans and
amendments must “compl[y] with a vast network of
specific statutory requirements.” Id. at 1248 (quoting
Pharm. Rsch. & Mfrs. of Am. v. Thompson, 362 F.3d
817, 821-22 (D.C. Cir. 2004)). And “[d]etermining a
plan’s compliance” with federal statutes “is central to
the program”—“a State cannot participate in
Medicaid without a plan approved by the Secretary.”
19
Id. That highly technical determination, the court
concluded, is best left to the expert agency, which “has
been giving careful consideration to the ins and outs
of the program since its inception” and “is the expert
in all things Medicaid.” Id.
Other Amici’s insistence that courts should defer
to state agencies rather than federal agencies because
state agencies may be more expert on the particular
regulation at issue, see Br. of West Virginia et al. as
Amici Curiae in Support of Pet’rs 21, only affirms how
important Chevron is to cooperative federalism
programs.
Whichever agency’s interpretation is
entitled to deference, the essential point remains the
same—deference to the interpretive viewpoint of at
least one of the expert partners in a cooperative
federalism program is necessary for the program to
function as intended.
In the absence of such
deference, there would be no foundation of stability on
which the program could rest, making it difficult (or
impossible) to design and implement these complex
regulatory schemes.
C. Overruling Chevron would be costly
and chaotic.
The destabilization of cooperative federalism
programs that would result from overruling Chevron
would undermine these programs’ important goals
and place substantial burdens on states, the federal
government, and regulated entities. Though Amici
States may not always agree with federal agencies’
interpretations, states’ role in cooperative federalism
programs requires them to work within the
boundaries established by federal agencies. Without
the stability that Chevron affords, states could no
20
longer be assured that the regulations they planned
around would remain in effect for any substantial
period—particularly when each reviewing court
would have to interpret vague terms like “efficiency,”
“quality,” or “public interest” anew. States would be
left to contend with uncertainty about the
requirements their plans should meet, and as a result
may put off the development of those plans or choose
not to participate in cooperative federalism programs
at all. See, e.g., Gluck, Interstatutory Federalism,
supra, at 540 (explaining that after the Affordable
Care Act passed, a number of states held off on
developing and implementing state exchanges until
HHS had promulgated regulations to guide their
efforts).
States that did move forward with developing and
implementing their plans would find it difficult to
predict whether a reasonable plan endorsed by their
federal partners would survive judicial review. In the
highly complex and technical world of cooperative
federalism programs, adjusting to a new
understanding of the statute could require years of
additional research, analysis, and collaboration with
the federal agency.
State budgets, which are
developed months in advance and require
coordination between the governor, the legislature,
and agencies, may not be flexible enough to adjust to
a last-minute shift in interpretation. See State
Budget Basics, Ctr. On Budget & Pol’y Priorities (May
24, 2022), https://tinyurl.com/f8tbuv5y (noting that
state funds are allocated to cooperative federalism
programs like Medicaid, highway programs, and
public transit as part of the budgeting process). And
it may also be difficult for regulated entities and
21
program beneficiaries to adjust to last-minute
changes, especially since they too may have made
plans in reliance on the agencies’ original approach.
See Ryan Stoa, From the Clean Power Plan to the
Affordable Clean Energy Rule: How Regulated
Entities Adapt to Regulatory Change and Uncertainty,
47 Hofstra L. Rev. 863 (2019) (explaining that
“[r]egulated entities often struggle to adapt to
regulatory change and uncertainty,” particularly in
sectors where “the scope and scale of project-level
planning and management are broad, and changes to
these processes can be highly disruptive”).
Nor is there any guarantee of national uniformity
in the absence of Chevron deference. While statelevel flexibility is a hallmark of cooperative
federalism programs, so too are “uniform federal
standards” that set a baseline for state
experimentation. Weiser, Federal Common Law,
supra, at 1696. If each circuit were empowered to
determine its own best reading of the federal statute,
it is likely that this shared baseline would disappear.
Instead, federal agencies would have to administer
the same program under as many as a dozen different
(and
potentially
conflicting)
statutory
interpretations, and states would be forced to operate
within different regulatory environments than their
peers. See Thomas W. Merrill & Kristin E. Hickman,
Chevron’s Domain, 89 Geo. L.J. 833, 861 (2001). The
results would likely be both inequitable and chaotic,
frustrating Congress’s vision for these programs. See
City of Arlington , 569 U.S. at 307 (“Thirteen Courts
of Appeals applying a totality-of-the-circumstances
test would render the binding effect of agency rules
unpredictable and destroy the whole stabilizing
purpose of Chevron.”).
22
II. The Court Should Clarify Chevron, Not
Overrule It.
A. Chevron is not merely a fundamental ingredient
in cooperative federalism programs—it is a
foundational decision in administrative law. Courts,
Congress, and regulated entities alike have relied on
Chevron for decades. It is one of the most cited
decisions in history, appearing in over 15,000 cases.
See Nicholas R. Bednar & Kristin E. Hickman,
Chevron’s Inevitability, 85 Geo. Wash. L. Rev. 1392,
1394 n.5 (2017). Plus, Congress has long legislated
against the backdrop of Chevron and has declined
several opportunities to legislatively abrogate it. See
Lisa Schultz Bressman & Abbe R. Gluck, Statutory
Interpretation From the Inside—An Empirical Study
of Congressional Drafting, Delegation, and the
Canons: Part I, 65 Stan. L. Rev. 901, 994 (2013)
(finding that 82% of surveyed congressional staffers
knew of Chevron and most employed it while
drafting); see generally Br. of Law Profs. Kent Barnett
& Christopher J. Walker as Amici Curiae in Support
of Neither Party 8-13. For the last 40 years, as
Congress has passed statutes and created regulatory
programs, leaving regulatory gaps for agencies to fill,
it has done so under the assumption that Chevron
would apply to the agencies’ interpretations. See
Bressman & Gluck, Statutory Interpretation, supra,
at 997 (finding that 91% of surveyed congressional
staffers “reported that one reason for statutory
ambiguity is a desire to delegate decisionmaking to
agencies”); City of Arlington, 569 U.S. at 296
(“Congress knows to speak in plain terms when it
wishes to circumscribe, and in capacious terms when
it wishes to enlarge, agency discretion.”). And
regulated entities—including states in some cases, see
23
supra, Parts I.B & C—have depended on Chevron and
the stability it creates when planning how to comply
with federal law. In short, Chevron is a deeply
entrenched decision, and one that has shaped the
behavior of legislators, government agencies, judges,
regulated entities, and the public alike for decades.
See Cass R. Sunstein, Chevron as Law, 107 Geo. L.J.
1613, 1670 (2019) (“[O]verruling Chevron would
create an upheaval—a large shock to the legal system,
producing confusion, more conflicts in the courts of
appeals, and
far
greater
politicization of
administrative law.”).
Chevron also advances a host of important values.
Agencies possess technical and policymaking
expertise, which makes them better positioned to
determine how best to advance Congress’s legislative
goals than non-expert courts. See Chevron, 467 U.S.
at 865 (“Judges are not experts in the field, and are
not part of either political branch of the Government
. . . . In contrast, an 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.”); Kisor v. Wilkie, 139 S. Ct.
2400, 2413 (2019) (“Agencies (unlike courts) have
‘unique expertise,’ often of a scientific or technical
nature, relevant to applying a regulation ‘to complex
or changing circumstances.’” (quoting Martin v.
Occupational Safety & Health Rev. Comm’n, 499 U.S.
144, 151 (1991))). Deferring to agencies’ resolution of
gaps in federal statutes also advances political
accountability. “While agencies are not directly
accountable to the people, the Chief Executive is.”
Chevron, 467 U.S. at 865. “[F]ederal judges—who
have no constituency—have a duty to respect
24
legitimate policy choices made by those who do.” Id.
at 866; see also Kisor, 139 S. Ct. at 2413 (“[A]gencies
(again unlike courts) have political accountability,
because they are subject to the supervision of the
President, who in turn answers to the public.”). And
deference also maintains the separation of powers,
with the judiciary respecting the legislature’s
determination about how to allocate policymaking
responsibility. See Henry P. Monaghan, Marbury and
the Administrative State, 83 Colum. L. Rev. 1, 6
(1983).
Political accountability and technical expertise are
particularly important when agencies are asked to
make value judgments. For example, in evaluating
applications for radio station licenses, the Federal
Communications Commission is directed by statute to
determine “whether the public interest, convenience,
and necessity will be served” by granting the
application. 47 U.S.C. § 309(a). The Federal Energy
Regulatory Commission must set rates for the sale of
natural gas that are “just and reasonable.” 15 U.S.C.
§ 717c(a). And the Surface Transportation Board is
charged with regulating railroads to “encourage the
purchase, acquisition, and efficient use of freight
cars.” 49 U.S.C. § 11122(a). It would make little
sense for non-expert federal courts to decide de novo
which licensees will act in the public interest, which
natural gas rates are reasonable, or how freight cars
may be most efficiently used.
B. Amici States’ own experiences illustrate how
deference to agencies advances these important
interests. In many states, courts have adopted some
form of deference to state agency interpretations. See
Aaron Saiger, Chevron and Deference in State
25
Administrative Law, 83 Fordham L. Rev. 555, 559
(2014). Consistent with states’ role as laboratories of
democracy, these deference regimes vary in form.
Collectively, however, they demonstrate that there
are good reasons to value an agency’s interpretation
of an ambiguous statute.
State courts have highlighted circumstances in
which the need for deference is most acute. The
Alaska Supreme Court, for example, emphasizes that
deference to agencies is particularly important “when
the interpretation at issue implicates agency
expertise or the determination of fundamental
policies within the scope of the agency’s statutory
functions.” Marathon Oil Co. v. State, Dep’t of Nat.
Res., 254 P.3d 1078, 1082 (Alaska 2011). The
California Supreme Court has similarly affirmed the
need to “consider the agency’s specialized knowledge
and expertise—[which is] especially relevant where
the statute at issue is a complex, technical one.” Cal.
Bldg. Indus. Ass’n v. Bay Area Air Quality Mgmt.
Dist., 362 P.3d 792, 797 (Cal. 2015). And Oregon’s
highest court has held that deference is warranted
when a statute “calls for completing a value
judgment” by using terms like “good cause,” “fair,”
“undue,” or “unreasonable.” Springfield Educ. Ass’n
v. Springfield Sch. Bd., 621 P.2d 547, 555 (Or. 1980).
The use of such “delegative terms,” the court noted,
grants a “choice of policy” to the agency, and deference
to the agency’s determination respects that legislative
delegation. Id. at 556.
C. To be sure, unthinking and “reflexive deference”
does not advance the interests that underpin Chevron
or its state-court analogues. Pereira, 138 S. Ct. at
2120 (Kennedy, J., concurring). But Chevron does not
26
call for reflexive deference. See supra pp. 7-8.
Instead, it contains important safeguards that ensure
deference is granted only when warranted. And to the
extent there are “problems” with Chevron, see Pet’rs
Br. 7, they are the result of misapplication of the
doctrine rather than the doctrine itself, see Buffington
v. McDonough, 143 S. Ct. 14, 19-20 (2022) (Gorsuch,
J., dissenting from denial of certiorari) (explaining
the dangers of “[o]verreading Chevron”). If the Court
believes that lower courts are misinterpreting
Chevron, it should clarify the doctrine’s bounds, not
overrule it.
Start with Step One. At the outset, a court must
determine whether, based on the statutory text, “the
intent of Congress is clear.” Chevron, 467 U.S. at 84243. If so, no deference is due. If not, the court moves
on to the next step. In the context of an express
delegation, Step One is straightforward. If, for
example, a statute requires an agency to set
“reasonable” rates or act in the “public interest,” then
the delegation to the agency is clear. See Chevron,
467 U.S. at 843-44 (“If Congress has explicitly left a
gap for the agency to fill, there is an express
delegation of authority to the agency to elucidate a
specific provision of the statute by regulation.”). And
when Congress “has assigned [a] decision to an
executive branch agency . . . the courts should stay out
of it.” Brett M. Kavanaugh, Keynote Address: Two
Challenges for the Judge As Umpire: Statutory
Ambiguity and Constitutional Exceptions, 92 Notre
Dame L. Rev. 1907, 1912-13 (2017).
Absent an express delegation, however, courts
have the responsibility to carefully parse “whether
the statute speaks to the issue at hand.” Philip J.
27
Weiser, Chevron, Cooperative Federalism, and
Telecommunications Reform, 52 Vand. L. Rev. 1, 8
(1999). This Court could make that task simpler by
reiterating that, before turning to Step Two, judges
should “apply[] the ordinary tools of statutory
construction”—all of them—to determine whether
“Congress has directly spoken to the precise question
at issue.” City of Arlington, 569 U.S. at 296 (quoting
Chevron, 467 U.S. at 842-43). At this step, courts
must “tak[e] seriously, and apply[] rigorously, in all
cases, statutory limits on agencies’ authority.” Id. at
307. They should not merely “throw up their hands
in the face of a complex regulatory scheme.” Weiser,
Chevron, supra, at 49. Applying this careful approach
consistently would address Petitioners’ concerns
about whether courts are fulfilling their duties under
Article III. Cf. Brett M. Kavanaugh, Fixing Statutory
Interpretation, 129 Harv. L. Rev. 2118, 2154 (2016)
(reviewing Robert A. Katzmann, Judging Statutes
(2014)).
The Court could similarly make clear that Step
Two is not a “blank check” for agencies. Pet’rs Br. 44.
Not every agency interpretation is “permissible” or
“reasonable.” Chevron, 467 U.S. at 843-44 & n.11.
For example, this Court has already held that an
agency’s interpretation must be in accordance with
the statutory scheme as a whole. See Util. Air Regul.
Grp., 573 U.S. at 321. Similarly, courts need not defer
to an agency that “failed to provide even [a] minimal
level of analysis” so that “its path may reasonably be
discerned.” Encino Motorcars, LLC v. Navarro, 579
U.S. 211, 221 (2016) (quoting Bowman Transp., Inc.
v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286
(1974)). And arbitrary or capricious interpretations
also do not warrant deference. Judulang v. Holder,
28
565 U.S. 42, 52 n.7 (2011). These constraints, when
taken seriously, effectively cabin agency discretion.
By contrast, there are a few situations in which
agency deference may be particularly appropriate at
Step Two—for example, if the statute is extremely
technical or deals with a subject matter that requires
scientific or other specialized expertise. See Barnhart
v. Walton, 535 U.S. 212, 222 (2002) (noting that
factors like “the related expertise of the Agency” and
“the complexity of [the] administration” help “indicate
that Chevron” applies). In those scenarios, the
rationale for deference is at its apex. Still, the
agency’s action must always be in harmony with the
statutory purpose and cannot be arbitrary. This
Court could say as much and guard against future
misapplication of Chevron.
Indeed, there are plenty of cases on the books
where agency action has been invalidated under
Chevron. In City of Anaheim v. FERC, 558 F.3d 521
(D.C. Cir. 2009), for example, the D.C. Circuit vacated
a retroactive order issued by the Federal Energy
Regulatory Commission, explaining that it “flatly
violate[d] the plain language” of the statute and
therefore failed at Chevron Step One. Id. at 522; see
also Friends of the Earth, Inc. v. EPA, 446 F.3d 140,
142-43 (D.C. Cir. 2006) (vacating EPA approval of
annual water quality standards when the statute
required that they set a daily rate). And in Friends of
Animals v. Haaland, 997 F.3d 1010 (9th Cir. 2021),
the Ninth Circuit vacated a Fish and Wildlife Service
rule at Chevron Step Two, holding that the rule was
“inconsistent with the statutory scheme” of the
Endangered Species Act. Id. at 1013; see also Sw.
Elec. Power Co. v. EPA, 920 F.3d 999, 1025 (5th Cir.
29
2019) (vacating a portion of EPA’s rule under the
Clean Water Act because it conflated standards “in a
way not permitted by the statutory scheme”). These
cases show that, properly applied, the doctrine is not
toothless.
In sum, Amici States urge the Court to clarify
Chevron rather than overrule it. Doing so would
acknowledge the important role Chevron plays in
applicable cases—and the reliance interests it has
generated—while guarding against misapplication.
CONCLUSION
The Court should decline to overrule Chevron and
instead clarify its scope and application.
30
Respectfully submitted,
SEPTEMBER 2023
BRIAN L. SCHWALB
Attorney General
District of Columbia
CAROLINE S. VAN ZILE*
Solicitor General
ASHWIN P. PHATAK
Principal Deputy
Solicitor General
ALEXANDRA LICHTENSTEIN
Assistant Attorney
General
400 6th Street, NW
Suite 8100
Washington, D.C. 20001
(202) 724-6609
caroline.vanzile@dc.gov
* Counsel of Record
On behalf of:
ROB BONTA
DANA NESSEL
State of California
State of Michigan
Attorney General
Attorney General
PHILIP J. WEISER
KEITH ELLISON
State of Colorado
State of Minnesota
Attorney General
Attorney General
WILLIAM TONG
AARON D. FORD
State of Connecticut
State of Nevada
Attorney General
Attorney General
KATHLEEN JENNINGS
MATTHEW J. PLATKIN
State of Delaware
State of New Jersey
Attorney General
Attorney General
ANNE E. LOPEZ
RAÚL TORREZ
State of Hawaii
State of New Mexico
Attorney General
Attorney General
KWAME RAOUL
LETITIA JAMES
State of Illinois
State of New York
Attorney General
Attorney General
ANTHONY G. BROWN
JOSHUA H. STEIN
State of Maryland
State of North Carolina
Attorney General
Attorney General
ANDREA JOY CAMPBELL
ELLEN F. ROSENBLUM
Commonwealth of
Massachusetts
State of Oregon
Attorney General
Attorney General
MICHELLE A. HENRY
Attorney General
Commonwealth of
Pennsylvania
PETER F. NERONHA
Attorney General
State of Rhode Island
CHARITY R. CLARK
Attorney General
State of Vermont
ROBERT W. FERGUSON
Attorney General
State of Washington
JOSHUA L. KAUL
Attorney General
State of Wisconsin
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