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.,

v.

Petitioners,

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 AMICUS CURIAE

NATURAL RESOURCES DEFENSE COUNCIL

IN SUPPORT OF RESPONDENTS

David Doniger

Ian Fein

NATURAL RESOURCES

Counsel of Record

DEFENSE COUNCIL

NATURAL RESOURCES

1152 15th Street NW,

DEFENSE COUNCIL

Suite 300

111 Sutter Street,

Washington, DC 20005

21st Floor

San Francisco, CA 94104

(415) 875-6147

ifein@nrdc.org

Counsel for Natural Resources Defense Council

TABLE OF CONTENTS

Page

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

ii

STATEMENT OF INTEREST .............................

1

INTRODUCTION AND SUMMARY

OF ARGUMENT................................................

1

ARGUMENT .........................................................

4

I. The History of the Chevron Case Reveals

Why the Court Emphasized Deference .....

5

A. President Reagan’s EPA Administrator

Adopts a Regulation that Relieves

Regulatory Burdens on Industry ........

5

B. NRDC Successfully Challenges the Rule

Under D.C. Circuit Caselaw that Reached

Disparate Conclusions on

the Question ..........................................

6

C. This Court Reverses and Chastises the

D.C. Circuit for Construing the Statute

Based on Judges’ Policy Preferences ...

9

II. The Judicial Review Principles in

Chevron Serve Important Values ..............

11

A. Courts Have Long Deferred to Agencies’

Reasonable Interpretations .................. 12

B. Chevron Commands That Courts Give

Effect to Congress’s Expressed Intent .

13

C. Deference Helps Restrain Judges from

Resolving Interpretive Disputes Based on

Their Personal Policy Preferences ....... 15

CONCLUSION .....................................................

(i)

19

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alabama Power Co. v. Costle,

636 F.2d 323 (D.C. Cir. 1979) ....................... 7-8

Arlington, Tex. v. FCC,

569 U.S. 290 (2013) .................................. 14, 19

ASARCO Inc. v. EPA,

578 F.2d 319 (D.C. Cir. 1978) .......................... 7

Baldwin v. United States,

140 S. Ct. 690 (2020) ..................................... 16

Chem. Mfrs. Ass’n v. NRDC,

470 U.S. 116 (1985) .................................... 1, 15

Chevron v. NRDC,

467 U.S. 837 (1984) ............ 1-3, 5-6, 9-11, 13-17

Entergy Corp. v. Riverkeeper, Inc.,

556 U.S. 208 (2009) ....................................... 19

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

572 U.S. 489 (2014) ........................................ 18

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) .................................... 15

NRDC v. Daley,

209 F.3d 747 (D.C. Cir. 2000) ........................ 14

NRDC v. EPA,

896 F.3d 459 (D.C. Cir. 2018) ........................ 19

NRDC v. EPA,

777 F.3d 456 (D.C. Cir. 2014) ........................ 14

iii

TABLE OF AUTHORITIES-Continued

Page(s)

NRDC v. EPA,

755 F.3d 1010 (D.C. Cir. 2014) ...................... 14

NRDC v. EPA,

749 F.3d 1055 (D.C. Cir. 2014) ........................ 4

NRDC v. EPA,

643 F.3d 311 (D.C. Cir. 2011) ........................ 14

NRDC v. EPA,

529 F.3d 1077 (D.C. Cir. 2008) ...................... 19

NRDC v. EPA,

489 F.3d 1250 (D.C. Cir. 2007) ...................... 14

NRDC v. EPA,

937 F.2d 641 (D.C. Cir. 1991) ........................ 19

NRDC v. Gorsuch,

685 F.2d 718 (D.C. Cir. 1982) .................... 2, 6-8

NRDC v. Herrington,

768 F.2d 1355 (D.C. Cir. 1985) ...................... 14

Pauley v. BethEnergy Mines, Inc.,

501 U.S. 680 (1991) ....................................... 16

Pereira v. Sessions,

138 S. Ct. 2105 (2018) ................................... 14

Seila Law LLC v. CFPB,

140 S. Ct. 2183 (2020) ................................... 17

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

517 U.S. 735 (1996) ....................................... 16

iv

TABLE OF AUTHORITIES-Continued

Page(s)

Train v. NRDC,

421 U.S. 60 (1975) ....................... 3-4, 12-13, 17

Udall v. Tallman,

380 U.S. 1 (1965) ............................................ 13

Vt. Yankee Nuclear Power Corp. v. NRDC,

435 U.S. (1978) .......................................... 10, 18

Statutes and Legislative Materials

5 U.S.C. § 706 ...................................................... 14

Clean Air Act Amendments,

Pub. L. No. 95-95, 91 Stat. 685 (1977) ............. 5

Federal Regulations

43 Fed. Reg. 26,380 (1978) ................................... 7

45 Fed. Reg. 52,676 (1980) ................................... 5

46 Fed. Reg. 16,280 (1981) ................................ 5-6

46 Fed. Reg. 50,766 (1981) ................................ 5-6

Other Authorities

Merrick Garland, Deregulation and Judicial

Review, 98 Harv. L. Rev. 505 (1985) ............... 5

Brett Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) ................ 18

Thomas McGarity, Regulatory Reform in the

Reagan Era, 45 Md. L. Rev. 261 (1986) ........... 5

v

TABLE OF AUTHORITIES-Continued

Page(s)

Thomas Merrill, The Story of Chevron: The

Making of an Accidental Landmark,

66 Admin. L. Rev. 253 (2014) ........ 2, 5, 7, 9-10

Robert Percival, Environmental Law in the

Supreme Court: Highlights from the Blackmun

Papers, 35 Env’t L. Rep. 10,673 (2005) ........... 9

Antonin Scalia, Judicial Deference to

Administrative Interpretations of Law,

1989 Duke L.J. 511 (1989) ........................... 12

Laurence Silberman, Chevron—the Intersection

of Law & Policy, 58 Geo. Wash. L. Rev. 821

(1990) ....................................................... 15, 17

Kenneth Starr, Judicial Review in the

Post-Chevron Era, 3 Yale J. on Reg. 283

(1986) ........................................... 10, 14, 16, 18

1

STATEMENT OF INTEREST 1

Since its founding in 1970, Natural Resources Defense Council, Inc. (NRDC), has litigated hundreds of

cases that concern the meaning of statutes administered by federal agencies. One such case led to this

Court’s decision in Chevron v. NRDC, 467 U.S. 837

(1984). Although NRDC lost that case, and has lost

many subsequent cases that applied its judicial review

framework as well, we nonetheless respect that framework and recognize the important values that it

serves. Because the Court is now considering whether

to overrule or narrow Chevron, NRDC submits this

brief as amicus curiae to revisit the history of the case

and remind the Court of the problem that its opinion

there sought to address—namely, the propensity of

some lower court judges to resolve interpretive disputes based on their personal policy preferences. That

history should give the Court reason to hesitate before

overruling Chevron or abandoning its framework now.

INTRODUCTION AND

SUMMARY OF ARGUMENT

We are the party that lost Chevron. The following

Term, we lost the next case in which the Court applied

Chevron, too. Chem. Mfrs. Ass’n v. NRDC, 470 U.S.

116, 125 (1985). In those cases, the Court deferred to

Environmental Protection Agency (EPA) interpretations of the Clean Air Act and Clean Water Act that

weakened regulatory burdens on industry. NRDC disagreed with the outcomes in these cases; and we continue to believe that EPA’s interpretations of the relevant provisions were contrary to the statutory text.

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

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

2

But we respect the principles of deference on which the

Court based its decisions, and we urge the Court to exercise caution before abandoning them.

The Court emphasized deference in Chevron to address a particular problem. In the trio of D.C. Circuit

decisions that led to Chevron, different panels of that

court reached disparate conclusions about whether the

Clean Air Act permitted EPA to adopt a regulatory interpretation and approach in three different statutory

programs. The panels justified their disparate conclusions not based on statutory text, but on their own

views of whether each program’s policy was to enhance

or merely to maintain air quality. In the third of those

cases, the court’s policy view precluded a more industry-friendly interpretation adopted by EPA under the

Reagan administration. NRDC v. Gorsuch, 685 F.2d

718, 720 (D.C. Cir. 1982).

According to one prominent observer, the disparate D.C. Circuit opinions improperly construed the

statute based on the judges’ “views of appropriate policy,” and revealed that at least some judges on that

court were “prone to substitute their own preferences

for those of EPA.” Thomas Merrill, The Story of Chevron: The Making of an Accidental Landmark, 66 Admin. L. Rev. 253, 266 (2014). That is why the Court’s

opinion in Chevron stressed that the D.C. Circuit had

“misconceived the nature of its role in reviewing the

regulations at issue,” 467 U.S. at 845, and admonished

that a court should not interpret a statute “on the basis

of the judges’ personal policy preferences,” id. at 865.

Instead, the Court instructed, a court reviewing an

agency’s interpretation of a statute it administers

must “[f]irst, always,” determine whether Congress

has spoken to the question at issue. Id. at 842. If so,

“that is the end of the matter”; Congress’s expressed

3

intent “is the law and must be given effect.” Id. at 84243 & n.9.

If the statute’s meaning is unclear, however, the

court should not impose its own preferred construction

on the statute, but rather should defer to a reasonable

interpretation adopted by the agency. Id. at 843-45.

That is so for at least a couple of reasons. For one

thing, Congress tasked the agency with implementing

the statute, and thus intended the agency to bring its

knowledge and expertise to bear on the interpretive

questions that inevitably arise when carrying out a

“technical and complex” statute. Id. at 843-44, 864-65.

Further, because resolving such questions often entails at least some consideration of policy, deference

helps restrain judges from substituting their policy

judgments for those of the more accountable political

branches. Id. at 865-66. In this way, deference also

promotes legal uniformity by preventing courts from

reaching disparate conclusions based on their own preferred constructions of a statute.

These judicial review principles articulated in

Chevron were not new. Citing dozens of cases dating

back decades, the Court noted that the principle of deferring to an agency’s reasonable construction of a

statute it administers was “long recognized” and “wellsettled.” Id. at 844-45 & nn.11-14 (citations omitted).

Another NRDC case, decided almost a decade before Chevron, proves the point. Train v. NRDC, 421

U.S. 60 (1975). In that case, five circuits had adopted

three different positions on whether a specific Clean

Air Act provision allowed EPA and states to reduce

regulatory burdens on polluters. Id. at 72-73. This

Court held that EPA’s interpretation of the provision

was “sufficiently reasonable” that it should have been

accepted by the lower courts. Id. at 75. Citing even

earlier cases that applied the same principles, the

4

Court faulted the lower courts for substituting their

judgment for the agency’s, instead. Id. at 87.

These cases provide some insight into what could

result if the judicial review framework articulated in

Chevron were now abandoned. If lower court judges

were instructed to determine what they believe to be

the best interpretation of a statute, it might invite

those judges to resume resolving interpretive disputes

based on their personal policy preferences. Judicial

outcomes would tend to become less uniform and less

predictable, even within a single circuit, as the trio of

cases that led to Chevron shows.

We are somewhat reluctant to make these points,

given that groups like ours may win more cases if

Chevron were overruled. As the above cases illustrate,

reviewing courts frequently defer to agency interpretations that reduce regulatory burdens and weaken

environmental and public health protections. See also

NRDC v. EPA, 749 F.3d 1055, 1060 (D.C. Cir. 2014)

(Kavanaugh, J.). NRDC has accordingly lost many

cases under Chevron, based on agency deference.

We nonetheless recognize the broader values that

Chevron’s judicial review framework serves, and what

could be lost without it. Whatever one thinks of Chevron, and the above-mentioned cases that preceded it,

its framework has provided a background rule on

which courts, Congress, agencies, and litigants like us

have relied for decades. Resp. Br. 27-35. We urge the

Court to exercise caution before abandoning it.

ARGUMENT

The basic facts and holding of the Chevron decision

are well known. But courts and scholars are generally

less familiar with the particular history of the case

that prompted the Court’s emphasis on deference in its

5

opinion. That history may provide a window into what

overruling or abandoning Chevron could portend.

I. The History of the Chevron Case Reveals

Why the Court Emphasized Deference

A. President Reagan’s EPA Administrator

Adopts a Regulation that Relieves Regulatory Burdens on Industry

President Reagan’s election in 1980 effected a “major shift in executive branch policy toward environmental and safety regulation.” Merrill, The Story of

Chevron, 66 Admin. L. Rev. at 264. The incoming administration prioritized regulatory reform and deregulation. See Merrick Garland, Deregulation and Judicial Review, 98 Harv. L. Rev. 505, 508 (1985); Thomas

McGarity, Regulatory Reform in the Reagan Era, 45

Md. L. Rev. 253, 261 (1986). Soon after taking office,

the administration initiated a “Government-wide reexamination of regulatory burdens and complexities.”

Chevron, 467 U.S. at 857 (quoting 46 Fed. Reg. 16,280,

16,281 (1981)).

One early result of this reexamination was a 1981

Clean Air Act regulation issued by President Reagan’s

first EPA Administrator, Anne Gorsuch, that relieved

pollution control requirements on new industrial facilities. 46 Fed. Reg. 50,766 (1981). The 1977 Clean Air

Act Amendments required large new stationary

sources located in the nation’s most polluted areas to

meet several pollution-reducing requirements, including using the most stringent emission controls and offsetting their remaining emissions. Pub. L. No. 95-95,

§ 129(b), 91 Stat. 685, 745-51 (1977). In 1980, EPA

had issued a regulation that applied these requirements whenever a large new industrial unit (such as a

boiler or blast furnace) was built. 45 Fed. Reg. 52,676

(1980). The 1981 regulation reversed course, however,

6

and allowed states to avoid these requirements by redefining “source” as an entire industrial plant. 46 Fed.

Reg. at 50,767. That meant a plant could install new

units without using the most stringent emission controls, so long as the plant did not increase its overall

emissions. Because this definition treated a plant’s

various components as if they were encased within a

bubble, it was often described as implementing a “bubble concept.” Chevron, 467 U.S. at 840-42.

EPA asserted that neither the statute nor its legislative history resolved whether the bubble concept

was a proper understanding of the term “source,” and

that the question therefore “involve[d] a judgment as

to how to best carry out the Act.” 46 Fed. Reg. at

16,281. The agency adopted the plant-wide definition

expressly to “reduce the regulatory burden” and

“shrink the coverage” of the statutory review program

and related provisions. 46 Fed. Reg. at 50,766. The

effect of the plant-wide definition was to exempt most

large new industrial projects from the 1977 law’s pollution-reducing requirements.

B. NRDC Successfully Challenges the Rule

Under D.C. Circuit Caselaw that Reached

Disparate Conclusions on the Question

NRDC challenged the regulation in the D.C. Circuit. Industry groups—including Chevron, American

Petroleum Institute, and Chemical Manufacturers Association—intervened to defend EPA’s rule. Chevron,

467 U.S. at 841 n.4. The court, in an opinion by thenJudge Ruth Bader Ginsburg, ruled in NRDC’s favor

and vacated the regulation. NRDC v. Gorsuch, 685

F.2d at 720.

A lesser-known part of the Chevron story is that

the D.C. Circuit’s review of the 1981 regulation was

“controlled” by two earlier cases in which the court had

7

considered the bubble concept. Id. at 725-26. Those

two cases reached opposite conclusions about the permissibility of the bubble concept in different Clean Air

Act programs, based largely on the panels’ differing

judgments about appropriate policy. See Merrill, The

Story of Chevron, 66 Admin. L. Rev. at 261-66.

First, in ASARCO Inc. v. EPA, 578 F.2d 319 (D.C.

Cir. 1978), a panel of the court rejected EPA’s adoption

of the bubble concept in a regulation implementing

“new source performance standards” under Section

111 of the Act. In an opinion by Judge Skelly Wright,

the court held that EPA’s plant-wide definition of

“source” was inconsistent both with statutory language and Section 111’s purpose to improve air quality, not merely to maintain the status quo. Id. at 32629. Judge George MacKinnon dissented, arguing that

the majority construed the statute too narrowly and

“inadequately appreciated” the discretion Congress afforded EPA to balance competing policy interests in

administering the Act. Id. at 331-35 (MacKinnon, J.,

dissenting in part). After ASARCO, EPA dropped the

bubble concept from the Section 111 program.

Second, in Alabama Power Co. v. Costle, 636 F.2d

323 (D.C. Cir. 1979), a different panel considered

EPA’s implementation of a new “prevention of significant deterioration” program created by the Clean Air

Act Amendments of 1977. That program, which applied only in regions where air quality was better than

national health-based standards, was designed to

limit how much the construction of new sources could

degrade those regions’ air quality. Id. at 349-50. EPA

again adopted a plant-wide definition of “source” to implement the bubble concept in this program. 43 Fed.

Reg. 26,380, 26,403 (1978).

In a portion of the Alabama Power opinion authored by Judge Malcolm Wilkey, the court concluded

8

that the bubble concept was required in the context of

the new prevention of significant deterioration program. 636 F.2d at 401-03. This panel justified its conclusion primarily on policy grounds: it noted that prohibiting the bubble concept would impose “extremely

burdensome” regulation on industry, and that the new

program was designed merely to prevent deterioration

of air quality, not to enhance it. Id. at 401.

When EPA later adopted the regulation at issue in

Chevron, it did so in the shadow of these two earlier

cases. As noted above, EPA promulgated a regulation

in 1980 that excluded the bubble concept from the

Act’s “nonattainment” program, which was designed to

enhance air quality in regions that do not meet the federal health-based standards. The agency reversed

course under the Reagan administration, however,

and adopted a new regulation in 1981 that embraced

the plant-wide bubble concept for this program.

The D.C. Circuit’s consideration of the 1981 regulation turned largely on its attempt to reconcile the

earlier decisions in ASARCO and Alabama Power.

Judge Ginsburg derived from those cases a “bright line

test” as the “law of this Circuit”: she read them to hold

that the bubble concept was “mandatory” for Clean Air

Act programs designed to maintain air quality, but “inappropriate” for programs designed to improve air

quality. NRDC v. Gorsuch, 685 F.2d at 720, 726. Because EPA’s 1981 regulation extended the bubble concept to a program designed to improve air quality in

“nonattainment” regions, the court held that, under

the “Alabama Power-ASARCO test,” it “must conclude

that the bubble concept may not be employed in that

scheme.” Id. at 726.

Chevron filed a cert petition, followed by a petition

from EPA. Merrill, The Story of Chevron, 66 Admin.

L. Rev. at 267. This Court granted review.

9

C. This Court Reverses and Chastises the

D.C. Circuit for Construing the Statute

Based on Judges’ Policy Preferences

After this Court held oral argument in Chevron,

the vote at conference was closely divided: four justices

voted to reverse and three to affirm. Merrill, The Story

of Chevron, 66 Admin. L. Rev. at 270. According to

Justice Blackmun’s papers, each of the justices voting

to reverse was tentative or doubtful about the disposition. Id.; see also Robert Percival, Environmental Law

in the Supreme Court: Highlights from the Blackmun

Papers, 35 Env’t L. Rep. 10,637, 10,644 (2005).

Ultimately, however, the Court unanimously reversed the D.C. Circuit and held—in an opinion by

Justice Stevens—that EPA’s plant-wide definition of

the term “source” was a “permissible construction of

the statute.” Chevron, 467 U.S. at 866. NRDC disagreed (and still disagrees) with that bottom-line conclusion: we believed the Act’s language precluded

EPA’s bubble interpretation. Id. at 859. But more important for present purposes is what the Court emphasized in its opinion about the “principle of deference to

administrative interpretations.” Id. at 844.

The Chevron opinion explained that a court, when

reviewing an agency’s construction of a statute it administers, should first employ traditional tools of statutory construction to determine whether Congress expressed a clear intent on the matter. Id. at 842-43 &

n.9. If so, “that intention is the law and must be given

effect.” Id. at 843 n.9. The reviewing “court, as well

as the agency, must give effect to the unambiguously

expressed intent of Congress.” Id. at 843.

If the traditional tools of statutory interpretation

do not resolve the question, however, a reviewing court

should not “simply impose its own construction on the

10

statute.” Id. Instead, the court should determine

whether the agency’s proffered interpretation is a “permissible construction of the statute.” Id. Citing dozens of cases dating back decades, the Court noted that

this principle of deference to an agency’s reasonable

interpretation was “long recognized,” “well-settled,”

and “consistently followed.” Id. at 844-45 & nn.11-14

(citations omitted).

Beyond merely applying those existing principles

to the case at hand, id. at 859-65, the Court also explained why a reviewing court should not substitute its

preferred construction for a reasonable interpretation

adopted by the agency, id. at 844-45, 865-66. That discussion was plainly a response to the trio of D.C. Circuit decisions that led to Chevron. According to one

prominent observer, the ASARCO and Alabama Power

decisions “reflected transparent attempts to reach

ends consistent with the author[ing judge]’s views of

appropriate policy,” and showed that at least some

D.C. Circuit judges were “prone to substitute their own

preferences for those of EPA.” Merrill, The Story of

Chevron, 66 Admin. L. Rev. at 266. Other D.C. Circuit

judges interpreted the Chevron opinion as “chastising”

the court for its approach to reviewing agency interpretations. Kenneth Starr, Judicial Review in the

Post-Chevron Era, 3 Yale J. on Reg. 283, 287 (1986). 2

That history reveals why the Court stressed that

the D.C. Circuit had “misconceived the nature of its

role in reviewing the regulations at issue.” Chevron,

2 Then-Judge Starr and others have noted that Chevron followed by just a few years another NRDC case in which this Court

harshly criticized the D.C. Circuit’s approach to judicial review of

agency decision-making procedures. Starr, Judicial Review in the

Post-Chevron Era, 3 Yale J. on Reg. at 306-07 (discussing Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978)).

11

467 U.S. at 845. Once the D.C. Circuit determined

that the Act itself did provide a clear answer on the

bubble concept, the proper inquiry for that court was

“not whether in its view the concept is ‘inappropriate’”

in the context of a particular regulatory program, but

rather “whether the Administrator’s view that it is appropriate” is a reasonable one. Id. (emphasis added).

The Court admonished in Chevron that a reviewing

court should not reconcile competing interests or resolve a question such as this “on the basis of the judges’

personal policy preferences.” Id. at 865.

NRDC, notably, did “not defend the legal reasoning of the Court of Appeals” in Chevron. Id. at 842 &

n.7. In fact, we “expressly reject[ed]” the D.C. Circuit’s

policy-based rationale and argued instead that the

“text of the Act” precluded the bubble concept in all its

programs. Id. at 859-60. Although we lost that argument, we respect the principles of judicial review on

which the Court ruled against us. Those principles

serve important values, as the Court explained and we

discuss in the next Part. And the D.C. Circuit cases

that led to Chevron provide a cautionary tale of what

might result from overruling it.

II. The Judicial Review Principles in Chevron

Serve Important Values

The judicial review principles articulated in Chevron were not new; they stem from decades of prior decisions. Those principles have a solid foundation and

serve important values. They command that a reviewing court must exhaust all traditional tools of statutory constructions before any deference to an agency is

warranted. They also recognize that judges should not

resolve remaining interpretive disputes based on their

own personal policy preferences. Such restraint helps

preserve political accountability for the policy decisions that arise when implementing a technical and

12

complex statute; it also helps promote the uniformity

and predictability of judicial decisions. The Court

should hesitate before abandoning these principles.

A. Courts Have Long Deferred to Agencies’

Reasonable Interpretations

As the government’s brief explains, the judicial review principles articulated in Chevron followed a “long

tradition” in which this Court has deferred to an

agency’s reasonable interpretation of a statute it administers. Resp. Br. 22-26; see also Antonin Scalia,

Judicial Deference to Administrative Interpretations of

Law, 1989 Duke L.J. 511, 512-13 (1989). While that

tradition dates back decades, an NRDC case from the

1970s is illustrative.

In Train v. NRDC, five circuits had adopted three

different positions about whether a Clean Air Act provision allowed EPA and states to approve state clean

air plans on terms that relaxed certain regulatory obligations for industrial polluters. 421 U.S. at 72-73.

Several of the circuits had adopted a “Solomonesque”

interpretation—“not tied to any specific provision of

the Clean Air Act”—that was “quite candidly a judicial

creation.” Id. at 73. This Court noted that the disparity among the circuits demonstrated that the statutory

question did not have an easy answer. Id. at 75.

The Court, in an opinion by then-Justice

Rehnquist, held that EPA’s reading of the Act was

“sufficiently reasonable” that it “should have been accepted by the reviewing courts.” Id. The Court did not

conclude that EPA’s construction of the Act was the

only one it could have adopted, id.; in fact, the Court

noted the difficulty of ever having “complete assurance” that a particular interpretation of a “complex

statute” like the Clean Air Act is the “correct” one, id.

at 87. But—citing earlier cases that discussed the

13

“great deference” due to an administering agency’s interpretation, Udall v. Tallman, 380 U.S. 1, 16 (1965)—

the Court ultimately expressed “no doubt” that EPA’s

reading was “sufficiently reasonable” to preclude the

courts of appeals from “substituting [their] judgment”

for the agency’s. Train, 421 U.S. at 87.

The Court in Chevron relied on Train, among dozens of other cases, when it described the “well-settled”

principle that a reviewing court should not “substitute

its own construction of a statutory provision for a reasonable interpretation made by the administrator of

an agency.” 467 U.S. at 843-45 & nn.11-14.

B. Chevron Commands That Courts Give Effect to Congress’s Expressed Intent

Critics of the Chevron framework contend that deferring to an agency’s reasonable interpretation of a

statute it administers is inconsistent with the judiciary’s duty to decide legal questions. But that overlooks

Chevron’s own emphasis on the judiciary’s role as the

“final authority” on issues of statutory construction.

467 U.S. at 843 n.9.

“First, always,” the Court made clear in Chevron,

a court must determine whether Congress has spoken

to the question at issue. Id. at 842 (emphasis added).

If so, “that is the end of the matter.” Id. Both the reviewing court and the administering agency “must

give effect” to the “expressed intent of Congress.” Id.

at 842-43. The Court reiterated that reviewing courts

“must reject” agency interpretations that are “contrary

to clear congressional intent.” Id. at 843 n.9.

The Chevron Court also instructed that reviewing

courts should determine congressional intent by employing all the “traditional tools of statutory construction.” Id. Only once those tools are exhausted could a

court conclude that any deference to an agency is

14

warranted. And even then, those tools still set the

“bounds of reasonable interpretation” by which the

court then judges the agency’s construction. City of

Arlington, Tex. v. FCC, 569 U.S. 290, 296 (2013); see

also id. at 317 (Roberts, C.J., dissenting) (“We do not

ignore” the command to decide all “questions of law,” 5

U.S.C. § 706, “when we afford an agency’s statutory interpretation Chevron deference; we respect it.”).

Properly applied, then, Chevron does not abdicate

the judiciary’s role in interpreting statutes or make judicial review a “dead letter.” Starr, Judicial Review in

the Post-Chevron Era, 3 Yale J. on Reg. at 298. On the

contrary, it “vindicates” the “traditional function of judicial review” and “confirms the judiciary’s historic

role of declaring what the law is.” Id. at 309. Courts

can, and do, retain this fundamental role under Chevron. NRDC, for example, has won cases by demonstrating that an agency’s interpretation contravened a

statute at Chevron’s first step. 3 And we have also won

cases at the second step by demonstrating that an

agency’s construction lay outside the bounds of reasonable interpretation. 4

That said, we agree that a reviewing court’s inquiry using the traditional interpretive tools must be

robust, and that some judges are too quick to deem a

statute ambiguous. A court should not grant “reflexive

deference” or engage in only a “cursory analysis” of the

statute. Pereira v. Sessions, 138 S. Ct. 2105, 2120

(2018) (Kennedy, J., concurring). We would therefore

3 See, e.g., NRDC v. EPA, 755 F.3d 1010, 1018 (D.C. Cir. 2014);

NRDC v. EPA, 643 F.3d 311, 322-23 (D.C. Cir. 2011); NRDC v.

EPA, 489 F.3d 1250, 1257 (D.C. Cir. 2007).

4 See, e.g., NRDC v. EPA, 777 F.3d 456, 465-69 (D.C. Cir. 2014);

NRDC v. Daley, 209 F.3d 747, 753-54 (D.C. Cir. 2000); NRDC v.

Herrington, 768 F.2d 1355, 1372-73 (D.C. Cir. 1985).

15

support this Court clarifying, as it did recently in Kisor

v. Wilkie, 139 S. Ct. 2400, 2414-15 (2019), that a reviewing court must rigorously apply and exhaust the

traditional tools of construction before determining

that an agency interpretation deserves any deference.

C. Deference Helps Restrain Judges from

Resolving Interpretive Disputes Based

on Their Personal Policy Preferences

No matter how robust a court’s inquiry at Chevron’s first step, some questions will inevitably remain

to which Congress has not provided a clear answer.

That is especially so when Congress tasks agencies

with implementing regulatory programs in a “technical and complex arena.” Chevron, 467 U.S. at 863.

The question then becomes which institution—the

administering agency, or the reviewing court—should

provide an answer in the first instance. Chevron recognizes (with commendable judicial humility) that

agencies have several “comparative institutional advantage[s]” over courts in interpreting the statutes

they are charged with administering. Laurence Silberman, Chevron—the Intersection of Law & Policy, 58

Geo. Wash. L. Rev. 821, 823 (1990).

First, Congress tasked the agencies—not courts—

with administering the statutes; and it did so knowing

that agencies possessed or would develop special expertise in implementing the statute. “Judges,” by contrast, “are not experts in the field.” Chevron, 467 U.S.

at 865. It is therefore reasonable to presume that Congress intended the agency to bring that expertise to

bear on the questions that inevitably arise when implementing a “technical and complex” statute. Id. at

865; see also Chem. Mfrs. Ass’n, 470 U.S. at 124 (deferring to EPA’s understanding of the “very ‘complex statute’” it is “charged with administering”). “An agency

16

obviously enjoys a more thorough understanding than

the generalist judiciary of how a statute’s various provisions interrelate and how different interpretations of

a particular provision affect relevant parties.” Starr,

Judicial Review in the Post-Chevron Era, 3 Yale J. on

Reg. at 309. Congress reasonably recognized that

“those with great expertise and … responsibility for

administering” a statute would be in a “better position” to “strike the [right] balance” when implementing it. Chevron, 467 U.S. at 865. 5

Second, because the interpretive questions that

arise when implementing a statute often entail at least

some consideration of policy, deference helps restrain

judges from resolving such disputes based on their personal policy preferences. Id. at 865-66; Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696 (1991); see also

Barnett & Walker Amicus Br. 29-31 (discussing empirical evidence supporting this point). As recounted

above (at 10-11), it was this concern that prompted the

Court to emphasize deference in its Chevron opinion.

The Court in Chevron explained that federal

judges “are not part of either political branch of the

Government,” and thus must not decide cases “on the

basis of the judges’ personal policy preferences.” 467

5 An alternative judicial review scheme that only deferred to

agency interpretations that were “contemporaneous” with a statute’s enactment, Baldwin v. United States, 140 S. Ct. 690, 693

(2020) (Thomas, J., dissenting from denial of certiorari), would

ignore the valuable expertise that an agency develops from implementing a statute over the course of decades. See Smiley v.

Citibank (S.D.), N.A., 517 U.S. 735, 740-41 (1996) (Scalia, J.) (“We

accord deference to agencies … not because of a presumption that

they drafted the provisions in question … ; but rather because of

a presumption that Congress, when it left ambiguity in a statute

meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency ….”).

17

U.S. at 865. By contrast, “an agency to which Congress

has delegated policy-making responsibilities” may

“properly rely upon the incumbent administration’s

views of wise policy to inform its judgments.” Id. (Recall that the 1981 regulation at issue in Chevron was

adopted by EPA to carry out the Reagan administration’s focus on deregulation. See supra 5-6.)

To be sure, agency officials themselves are not “directly accountable” to the public. Chevron, 467 U.S. at

865. But those officials generally serve at the pleasure

of the President—the most “politically accountable official in Government,” Seila Law LLC v. CFPB, 140 S.

Ct. 2183, 2203 (2020)—and it is “entirely appropriate”

for the Executive Branch to make policy choices when

addressing interpretive questions that arise in implementing a complex statute. Chevron, 467 U.S. at 865.

Deference principles properly recognize that “federal

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

Id. at 866.

By restraining judges from imposing their policy

preferences on an agency, deference also promotes legal uniformity by preventing courts from reaching disparate conclusions based on their own preferred constructions of a statute. Silberman, Chevron—the Intersection of Law & Policy, 58 Geo. Wash. L. Rev. at

824; see also Barnett & Walker Amicus Br. 27-29 (discussing empirical evidence supporting this point). The

Train case, discussed above, again is illustrative.

There, five circuits had adopted three different constructions of a Clean Air Act provision; at least one of

those constructions was “quite candidly a judicial creation.” 421 U.S. at 72-74. This Court highlighted the

“disparity among the Courts of Appeals” as one of the

reasons why the courts should have deferred to EPA’s

reasonable interpretation, instead. Id. at 75. Indeed,

18

the D.C. Circuit cases that led to Chevron show that

even different panels within a single circuit can reach

disparate constructions of a statute, see supra 7-8—an

undesirable outcome that deference to reasonable

agency interpretations can help avoid.

These cases provide some insight into what could

result if the deference principles articulated in Chevron were now abandoned. If the Court were to instruct

that federal judges should determine de novo what

they believe to be the “best” reading of a statute, Brett

Kavanaugh, Fixing Statutory Interpretation, 129

Harv. L. Rev. 2118, 2121 (2016), that instruction could

invite judges to resolve interpretive disputes based on

their policy preferences. Such a result would disserve

our democratic system, where policy choices are “not

the natural province of courts.” Starr, Judicial Review

in the Post-Chevron Era, 3 Yale J. on Reg. at 312. Judicial outcomes also might become less uniform and

less predictable. Cf. Vt. Yankee Nuclear Power Corp.

v. NRDC, 435 U.S. 519, 546 (1978) (if a court reviews

agency decisions based on “what the court perceives to

be the ‘best’ or ‘correct’ result, judicial review would be

totally unpredictable”); Merrill Amicus Br. 28-29.

We say this even though NRDC could well win

more cases if Chevron is overruled. After all, NRDC

challenges more agency actions than we defend, and

agency interpretations generally fare better under

Chevron than they do without it. Barnett & Walker

Amicus Br. 28. Such interpretations include, of

course, not only those that might strengthen regulatory obligations, see EPA v. EME Homer City Generation, L.P., 572 U.S. 489, 512-13 (2014), but also—as

Chevron, Chemical Manufacturers, and Train all make

clear—those that reduce regulatory burdens and

weaken protections for public health and the

19

environment, see also Entergy Corp. v. Riverkeeper,

Inc., 556 U.S. 208, 217-18 (2009). 6

Putting that aside, we recognize and respect the

broader values served by the judicial review principles

articulated in Chevron. And we do not wish for an alternative where federal judges feel free to substitute

their policy judgment for an agency’s. Whatever one

thinks of Chevron, its principles have provided a

“background rule,” City of Arlington, 569 U.S. at 296,

on which courts, Congress, agencies, and litigants like

us have relied for decades. See Resp. Br. 27-35; Barnett & Walker Amicus Br. 8-17. We urge the Court to

exercise caution before abandoning them.

CONCLUSION

The Court should affirm.

Respectfully submitted,

David Doniger

NATURAL RESOURCES

DEFENSE COUNCIL

1152 15th Street NW,

Suite 300

Washington, DC

20005

Ian Fein

Counsel of Record

NATURAL RESOURCES

DEFENSE COUNCIL

111 Sutter Street,

21st Floor

San Francisco, CA 94104

(415) 875-6147

ifein@nrdc.org

Counsel for Natural Resources Defense Council

September 22, 2023

6 See also, e.g., NRDC v. EPA, 896 F.3d 459, 465-66 (D.C. Cir.

2018); NRDC v. EPA, 529 F.3d 1077, 1083 (D.C. Cir. 2008); NRDC

v. EPA, 937 F.2d 641, 645 (D.C. Cir. 1991).