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

No. 22-451

In the

Supreme Court of the United States

LOPER BRIGHT ENTERPRISES, et al.,

Petitioners,

v.

GINA RAIMONDO,

SECRETARY OF COMMERCE, et al.

Respondents.

On Writ of Certiorari to the United States

Court of A ppeals for the District of Columbia Circuit

BRIEF AMICUS CURIAE OF

ENVIRONMENTAL DEFENSE FUND

IN SUPPORT OF RESPONDENTS

Vickie L. Patton

Peter Zalzal

Grace M. Smith

Environmental

Defense Fund

2060 Broadway, Suite 300

Boulder, CO 80302

Sean H. Donahue

Counsel of Record

David T. Goldberg

Megan M. Herzog

Donahue & Goldberg, LLP

1008 Pennsylvania Avenue, SE

Washington. DC 20003

(202) 277-7085

sean@donahuegoldberg.com

Counsel for Amicus Curiae

323894

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

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

ARGUMENT ............................................................... 7

I. Judicial Review Standards Should Effectuate

Congressional Intent—Including When

Congress Delegates Responsibility to an

Agency. .....................................................................7

II. Judicial Review Standards Should Respect

the Constitutional Status, Institutional

Capacities, and Accountability of Executive

Officials Charged with Implementing Acts of

Congress. ................................................................ 15

III. Judicial Review Standards Should Promote

Stability and Predictability for the Public,

Including Statutory Beneficiaries and

Regulated Entities Alike. ...................................... 23

CONCLUSION .......................................................... 29

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Abbott Laboratories v. Gardner,

387 U.S. 136 (1967) ................................................ 22

Adams Fruit Co. v. Barrett,

494 U.S. 638 (1990) ..................................................8

Alaska Dep’t of Env’t Conservation v. EPA,

540 U.S. 461 (2004) .............................................. 1, 2

Biden v. Nebraska, 143 S. Ct. 2355 (2023) .................8

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc. 467 U.S. 837

(1984) ......................................... 2 ,3, 5, 7, 12, 15, 16

Christensen v. Harris County,

529 U.S. 576 (2000) ..................................................8

City of Arlington v. FCC, 569 U.S. 290

(2013) .................................................... 7, 8, 9, 12, 25

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

Env’t Def. v. Duke Energy Corp.,

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

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

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

FERC v. Elec. Power Supply Ass’n,

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

J.W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928) ................................................ 10

Judulang v. Holder, 565 U.S. 42 (2011) ................... 25

King v. Burwell, 576 U.S. 473 (2015) .........................8

iii

Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ..................... 23

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

Mistretta v. United States,

488 U.S. 361 (1989) ................................................ 10

New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005) ......... 26

Salinas v. United States Railroad Retirement

Board, 141 S. Ct. 691 (2021) ...................................8

Smith v. Berryhill, 139 S. Ct. 1765 (2019) .................8

Sorenson Commc’ns, LLC v. FCC,

897 F.3d 214 (D.C. Cir. 2018) ................................ 25

United States v. Home Concrete & Supply, LLC,

566 U.S. 478 (2012) ................................................ 27

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

Util. Air Regul. Group v. EPA,

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

West Virginia v. EPA, 142 S. Ct. 2587 (2022) .... 1, 8, 9

Weyerhaeuser Co. v. U.S. Fish &

Wildlife Serv., 139 S. Ct. 361 (2018) ..................... 22

Whitman v. Am. Trucking Assn’s,

531 U.S. 457 (2001)............................................ 2, 10

Constitutional Provisions

U.S. Const. art. I, § 8, cl. 18 ...................................... 11

U.S. Const., art. II, § 2 .............................................. 15

U.S. Const. art. II, § 2, cl. 2 ....................................... 20

U.S. Const. art. VI, cl. 3 ............................................ 15

iv

Statutes

Page(s)

5 U.S.C. § 553 ............................................................ 21

5 U.S.C § 701 ....................................................... 13, 14

5 U.S.C. § 702 ............................................................ 22

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

5 U.S.C. § 706(2)(A) ............................................. 14, 25

5 U.S.C. §§ 801 et seq ............................................. 4, 22

42 U.S.C. § 7411(a)(4) ............................................... 26

42 U.S.C. § 7607(d) .................................................... 21

Pub. L. No. 94-210 (1976)............................................3

Pub. L. No. 95-2 (1977)................................................3

Pub. L. No. 95-504 (1978)............................................3

Pub. L. No. 96-296 (1980)............................................3

Pub. L. No. 96-354 (1980)............................................4

Pub. L. No. 96-448 (1980)............................................4

Pub. L. No. 96-511 (1980)............................................4

Pub. L. No. 104-4 (1995)..............................................4

Pub. L. No. 104-104, § 401 et seq. (1996) ....................4

Pub. L. No. 106-102 (1999)..........................................4

Pub. L. No. 115-174 (2018)..........................................4

v

Other Authorities

Page(s)

Attorney General’s Manual on the Administrative

Procedure Act (1947) .............................................. 14

Kenneth A. Bamberger, Normative Canons

in the Review of Administrative

Policymaking, 118 Yale L. J. 64 (2008) ........... 18, 19

Beau J. Baumann, Americana Administrative

Law, 111 Geo. L. J. 465 (2023) .............................. 11

Anya Bernstein & Christina Rodríguez, The

Accountable Bureaucrat, 132 Yale L. J.

1600 (2023) ........................................... 16, 17, 19, 21

Maeve P. Carey & Christopher M. Davis, Cong. Rsch.

Serv., The Congressional Review Act (CRA):

Frequently Asked Questions (2021) ....................... 22

Maeve P. Carey & Christopher M. Davis,

Cong. Rsch. Serv., The Congressional

Review Act (CRA): A Brief Overview (2023) .......... 22

Pamela J. Clouser McCann & Charles R.

Shipan, How Many Major U.S. Laws

Delegate to Federal Agencies? (Almost)

All of Them, 10 Pol. Sci. Rsch. &

Methods 438 (2021)................................................ 11

Curtis W. Copeland, Cong. Rsch. Serv.,

Congressional Influence on Rulemaking and

Regulation Through Appropriations

Restrictions (2008) ................................................. 19

Jesse M. Cross & Abbe R. Gluck, The

Congressional Bureaucracy, 168 U. Penn. L. Rev.

1541 (2020) ............................................................. 25

vi

J.R. DeShazo & Jody Freeman, The

Congressional Competition to Control

Delegated Power (U.C.L.A. L. Sch. Research

Paper No. 02-24, 2002) .......................................... 20

Jody Freeman & Jim Rossi, Agency

Coordination in Shared Regulatory

Space, 125 Harv. L. Rev. 1131 .............................. 21

Abbe R. Gluck & Lisa Schultz Bressman,

Statutory Interpretation from the Inside—An

Empirical Study of Congressional Drafting,

Delegation,

and the Canons: Part I,

65 Stan. L. Rev. 901 (2013) .................................. 12

The Federalist No. 76 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) ................................... 20

Elena Kagan, Presidential Administration,

114 Harv. L. Rev. 2245 (2001) ......................... 20, 21

Jiwon Lee, David Schoenherr, & Jan

Starmans, The Economics of Legal Uncertainty

(Eur. Corp. Governance Inst., Law Working Paper

No. 669/2022, 2022) ............................................... 23

Ronald M. Levin, The APA and the Assault on

Deference, 106 Minn. L. Rev. 125 (2021) ............... 14

Mathew D. McCubbins, Roger G. Noll, & Barry R.

Weingast, Structure and Process, Political and

Policy: Administrative Arrangements and the

Political Control of Agencies, 75 Va. L. Rev.

431 (1989) ............................................................... 12

Thomas W. Merrill, High Level, “Tenured”

Lawyers, 61 L. & Contemp. Probs. 83

(1998) ................................................................ 17, 18

vii

Gillian E. Metzger, Administrative

Constitutionalism, 91 Tex. L. Rev.

1897 (2013) ............................................................. 18

Gillian E. Metzger, Taking Appropriations

Seriously, 121 Colum. L. Rev. 1075 (2021) ........... 19

Julian Mortensen & Nicholas Bagley,

Delegation at the Founding, 121 Colum.

L. Rev. 277 (2021) .................................................. 10

Note, Developments in the Law—Presidential

Authority, 125 Harv. L. Rev. 2057 (2012) ............. 20

Eloise Pasachoff, The President’s Budget as a

Source of Agency Policy Control, 125 Yale

L. J. 2182 (2016) .................................................... 22

Molly E. Reynolds & Jackson Gode, Tracking

Oversight in the House in the 116th Congress,

66 Wayne L. Rev. 237 (2020) ................................. 20

William G. Ross, The Senate’s Constitutional

Role in Confirming Cabinet Nominees and

Other Executive Officers, 48 Syracuse

L. Rev. 1123 (1998) ................................................ 20

Matthew C. Stephenson, Statutory Interpretation

by Agencies, in Research Handbook on Public

Choice and Public Law (Daniel A. Farber &

Anne Joseph O’Connell eds., 2010) ....................... 12

Cass R. Sunstein, Chevron as Law, 107 Geo. L. J.

1613 (2019) ............................................................. 14

Cass R. Sunstein, Commentary: The Office of

Information and Regulatory Affairs: Myths

and Realities, 126 Harv. L. Rev. 1838 (2013) ....... 22

viii

David S. Tatel, The Administrative Process and the

Rule of Environmental Law, 34 Harv. Env’t L. Rev.

1 (2010) ................................................................... 21

Christopher J. Walker, Inside Agency Statutory

Interpretation, 67 Stan. L. Rev. 999 (2015) .......... 18

Executive Orders

Page(s)

Exec. Order No. 12,044 (1978) ....................................4

Exec. Order No. 12,291 (1981) ....................................4

Exec. Order No. 12,866 (1993) ....................................4

Exec. Order No. 13,258 (2002) ....................................4

Exec. Order No. 13,563 (2011) ....................................4

Exec. Order No. 13,771 (2017) ....................................4

Exec. Order No. 14,094 (2023) ....................................4

1

INTEREST OF AMICUS CURIAE1

Amicus Environmental Defense Fund is a nonprofit public interest organization dedicated to protecting people’s health, stabilizing the climate, and

strengthening people’s and nature’s ability to thrive –

anchored in science, economics, and law. EDF has

hundreds of thousands of members across the United

States, including members in each of the 50 states and

the District of Columbia.

As part of that work, EDF advocates for effective

and stable implementation of federal statutes such as

the Clean Air Act, Food Safety Modernization Act,

Magnuson-Stevens Fishery Conservation and Management Act, Natural Gas Pipeline Safety Act, Federal Power Act, and Toxic Substances Control Act.

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

and other statutes. EDF has been a party in this

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

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

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

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

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

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

511 U.S. 328 (1994), and has participated as amicus

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

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

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

and no person or entity other than amicus curiae or its counsel

contributed monetarily to the preparation or submission of this

brief.

2

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

and its members have an interest in how these critically important measures are administered and in ensuring that the standards courts employ in performing their congressionally assigned task of reviewing

agency decisions are principled, coherent, and consistent.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Petitioners and their supporters urge the Court to

make sweeping changes in how federal courts review

administrative agencies’ interpretations of statutes

and to dispense with the framework expressed in this

Court’s most-cited administrative law decision, Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc. 467 U.S. 837 (1984). The Court should decline petitioners’ invitation; it should not overrule Chevron.

It is an irony that a neutral rule of judicial restraint, announced in a case upholding a Reagan Administration regulatory amendment designed to reduce burdens on industrial polluters, id. at 857–58,

has morphed into the ultimate quarry of a campaign

to effect a judicially-driven downgrading of the role of

administrative agencies. This campaign is marked by

the kind of sloganeering, argument by anecdote, and

sacrifice of empirical rigor that are all too familiar in

hardball politics but out of place in legal argumentation. Like any shrewd campaigners, petitioners and

their supporters seek to “drive up the negatives” by

misstating what Chevron instructs. For instance, this

Court’s decision in no way established that “[i]f the

statute is silent, the government wins.” Pet. Br. 44. In

3

fact, Chevron only authorizes agencies to interpret

statutes in a manner consistent with how a court, applying all the “traditional tools of statutory construction,” would construe it, 467 U.S. at 843 n.9, and even

then, conditions acceptance on the court’s determination that the agency’s reading is reasonable.

The Court should avoid being drawn in by shrill

attacks on regulatory programs that members of petitioners’ coalition have long opposed for their own reasons. It should avoid debates imported from arguments conducted, along nakedly partisan lines, in the

political arena over whether there is “too much” federal regulation. The Court should instead reaffirm

that, however one regards the wisdom of administrative agencies’ actions, choices about how to implement

federal legislative policy—including the identity of the

implementing body; the constraints under which that

body must operate; and standards for judicial review,

if any, of its decisions—are matters for Congress. Tectonic changes in the standards that have been the

foundation for generations of congressional legislation, administrative rulemakings, and judicial review

proceedings should come only after appropriately

broad-lens legislative inquiry, debate, and voting.

Congress has, in fact, proven fully capable of enacting deregulatory laws when it so chooses.2 In

2 See, e.g.,

Railroad Revitalization and Regulatory Reform

Act of 1976, Pub. L. No. 94-210, 90 Stat. 31 (1976); Emergency

Natural Gas Act of 1977, Pub. L. No. 95-2, 91 Stat. 4 (1977); Airline Deregulation Act of 1978, Pub. L. No. 95-504, 92 Stat. 1705

(1978); Motor Carrier Act of 1980, Pub. L. No. 96-296, 94 Stat.

793 (1980); Staggers Rail Act of 1980, Pub. L. No. 96-448, 94 Stat.

1895 (1980) (substantially deregulated the railroad industry);

4

addition to measures addressing particular industries

or agencies, Congress has enacted “structural”

changes to the administrative process to shape and

constrain how the Executive Branch implements statutory commands. See, e.g., Regulatory Flexibility Act,

Pub. L. 96-354 (1980), codified as amended at 5 U.S.C.

§ 601 et seq.; Congressional Review Act of 1996, Pub.

L. No. 104-121, 110 Stat. 847 (1996), codified as

amended at 5 U.S.C. §§ 801 et seq. Presidents too have

made significant efforts to eliminate unnecessary regulation, promote regulatory flexibility, and reduce

costs.3 Altering longstanding judicial review standards—at best, a blunt instrument of deregulation in

any event—should be left to Congress.

Paperwork Reduction Act of 1980, Pub. L. No. 96-511, 94 Stat.

2812 (1980); Unfunded Mandates Reform Act of 1995, Pub. L. No.

104-4, 109 Stat. 48 (1995); Telecommunications Act of 1996, Pub.

L. No. 104-104, § 401 et seq., 110 Stat. 56 (1996) (removed various

regulatory burdens from the telecommunications sector);

Gramm-Leach-Bliley Act of 1999, Pub. L. No. 106-102, 113 Stat.

1338 (1999) (eliminated Glass-Steagall Act’s limits on commercial banks’ ability to engage in investment banking); Economic

Growth, Regulatory Relief, and Consumer Protection Act of 2018,

Pub. L. No. 115-174, 132 Stat. 1296 (2018) (cabined some financial regulations imposed after the 2008 financial crisis).

3 Presidents of both parties have issued executive orders to

streamline the regulatory process with a focus on removing unnecessary, redundant, or overly burdensome regulations. See,

e.g., Exec. Order No. 12,044, 43 Fed. Reg. 12,661 (1978); Exec.

Order No. 12,291, 46 Fed. Reg. 13,193 (1981); Exec. Order No.

12,866, 58 Fed. Reg. 51,735 (1993); Exec. Order 13,258, 67 Fed.

Reg. 9,385 (2002); Exec. Order No. 13,563, 76 Fed. Reg. 3,821

(2011); Exec. Order No. 13,771, 82 Fed. Reg. 9,339 (2017); Exec.

Order No. 14,094, 88 Fed. Reg. 21,879 (2023).

5

Despite extravagant rhetoric about “[t]he destruction that Chevron has wrought,” Pet. Br. 36, petitioners’ case for undoing one of the Court’s bedrock precedents is remarkably thin–and far short of the case

that should be required to overcome such a deeply

rooted precedent. It is hardly surprising, for example,

that a decision addressing a topic as common as judicial review of administrative interpretations has, over

the course of decades, generated some controversial or

mistaken applications. And this Court has never

treated Chevron as infallible writ. To the contrary, it

has handed down numerous decisions articulating

clarifications of and limitations on Chevron’s review

framework. Infra. 7–8.

While the Chevron framework has proven amenable to refinement, core aspects of Justice Stevens’s

opinion for the Court remain unassailably sound.

Chevron crisply articulated what remains common

ground: that when application of ordinary rules of

statutory construction yields a definitive answer, the

reading of the reviewing court—“the final authority

on issues of statutory construction”—controls. 467

U.S. at 843 n.9; id. at 865. But Chevron also correctly

recognized that Congress often purposefully calls

upon agency discretion and expertise to implement

statutes. Id. at 843–44, 865–66. The opinion made no

great leap in concluding that, when the court concludes the agency’s interpretation of Congress’s direction is reasonable (even if not inevitable), the agency’s

interpretation should be respected. Id. at 866.

In cataloging Chevron’s alleged sins and advocating its overthrow, petitioners fail meaningfully to address the question all denouncers of the status quo

6

should have to answer: “compared to what?” See Merrill Br. 28. For example, there would be much for all

stakeholders to dislike about a regime where agencies’

reasonable, considered interpretations of complex, nationally uniform regulatory statutes that Congress entrusted to their administration must yield to determinations by myriad federal courts across the country.

See id. at 28–29. It seems very likely that, stare decisis considerations aside, petitioners’ proposed overruling of Chevron would generate far more uncertainty,

disuniformity, confusion, and cost than it could forestall.

For all the foregoing reasons, as well as the numerous other compelling reasons outlined by respondents,

the Court should decline petitioners’ invitation to

overrule or significantly narrow Chevron. EDF urges

that three critical values should guide this Court’s

consideration of this case:

First, respect for Congress’s choices to delegate interpretive responsibility to the Executive

Branch. It is undeniably true that Congress frequently elects to delegate to Executive Branch officers

the power to interpret statutory ambiguities and gaps

as part of their responsibility to implement the statute. Courts should honor that legislative decision.

Second, respect for the distinct constitutional

status, expertise, and resources of Executive

Branch officials whom Congress has empowered to implement statutes, including recognition of the substantial checks that constrain

them.

Finally, respect for the people the laws

serve—including statutory beneficiaries and

7

regulated entities alike—by promoting stability,

uniformity, and predictability in statutory administration.

Each of these principles counsels strongly against

disturbing Chevron’s basic framework.4

ARGUMENT

I. Judicial Review Standards Should Effectuate Congressional Intent—Including When

Congress Delegates Responsibility to an

Agency.

Chevron is based upon the premise that when Congress delegates to an agency responsibility to administer a statute, Congress should be understood also to

have delegated responsibility to resolve relevant statutory ambiguities in a reasonable manner—with reviewing courts’ serving as the final arbiters of whether

there is a genuine ambiguity and whether the

agency’s resolution is reasonable. 467 U.S. at 843–44,

865–66. Even when they might not have resolved the

ambiguity the same way, courts upholding reasonable

agency interpretations are not abdicating their role,

but rather “respect[ing]” Congress’s directives about

who decides in those circumstances. See, e.g., City of

4 Petitioners’ alternative suggestion that the Court announce

a more limited rule of nondeference for what they call “statutory

silence” concerning “controversial powers” (Pet. Br. i, 43 –44)

should be rejected. “Controversy,” the sine qua none for any federal litigation, would provide an unhelpfully amorphous and manipulable test.

8

Arlington v. FCC, 569 U.S. 290, 317 (2013); see also

Merrill Br. 24.

And in a line of post-Chevron cases, the Court has

instructed that deference is unwarranted in circumstances where Congress is found not to have delegated

interpretive authority as to particular topics, decisionmakers, or contexts. See Adams Fruit Co. v. Barrett, 494 U.S. 638, 649–650 (1990); Christensen v. Harris County, 529 U.S. 576, 586–88 (2000); United States

v. Mead Corp., 533 U.S. 218, 226–27 (2001); King v.

Burwell, 576 U.S. 473, 486–86 (2015); Smith v. Berryhill, 139 S. Ct. 1765, 1778–79 (2019); Salinas v.

United States Railroad Retirement Board, 141 S. Ct.

691, 700 (2021); West Virginia, 142 S. Ct. at 2607–08;

see also City of Arlington, 569 U.S. at 321–22 (Roberts, C.J., dissenting, joined by Kennedy and Alito,

JJ.) (arguing that the threshold question whether

Congress has delegated policy-making authority to

the agency should be reviewed de novo).

The Court has instructed reviewing courts to at

least “hesitate” before concluding that ambiguous

statutory language amounts to congressional authorization of “unheralded” and “transformative” agency

actions with “vast economic and political significance.” See West Virginia, 142 S. Ct. at 2608–10; see

also Biden v. Nebraska, 143 S. Ct. 2355, 2373–74

(2023). Courts’ special responsibility, in the “extraordinary cases” that trigger the major questions doctrine, to scrutinize with skepticism improbably bold,

novel, and scantily supported agency actions, West

Virginia, 142 S. Ct. at 2608, undercuts arguments for

a general rollback of Chevron.

9

But petitioners and many amici ask the Court to

do something fundamentally different from continuing to determine, in particular contexts, whether Congress sought to delegate the interpretive authority in

question. They seek, instead, to overthrow the entire

framework of judicial review, overturning countless,

pre- and post-Chevron precedents affirming Congress’s power to delegate to Executive officers appropriately delineated interpretive tasks, and to hold

that, however plain its intent to do so, Congress

simply may not delegate to agencies interpretive and

policy-making authority. For petitioners deny that

“affirmatively delegating [to the Executive branch]

power to make policy” is “consistent with our constitutional scheme.” Pet. Br. 26.

This extreme submission is mistaken. It depends

upon a novel, supercharged version of the nondelegation doctrine and on tossing out all three branches’

centuries-old understandings of Congress’s powers. It

would be inimical to effective modern government in

a vast and complex nation. And if it did not rampantly

annul commonplace statutory delegations, by directing courts to decide for themselves a vast array of difficult, technical, and value-laden statutory questions,

petitioners’ approach would greatly increase the risk

of “the Judiciary[’s] arrogating to itself policymaking

properly left, under the separation of powers, to the

Executive.” City of Arlington, 569 U.S. at 327 (Roberts, C.J., dissenting). Petitioners’ argument is in essence a call to invalidate long-recognized, core powers

of Congress and the Executive, powers exercised in

virtually all important legislation; indispensable to effective government; and, within long-recognized

bounds, both constitutional and routine.

10

Congress has delegated broad authority to Executive Branch officers since the Founding. See Julian

Mortensen & Nicholas Bagley, Delegation at the

Founding, 121 Colum. L. Rev. 277, 281–82 (2021).

And over the centuries, this Court repeatedly has affirmed Congress’s constitutional authority to “use officers of the executive branch within defined limits, to

secure the exact effect intended by its acts of legislation, by vesting discretion in such officers to make

public regulations interpreting a statute and directing

the details of its execution.” J.W. Hampton, Jr., & Co.

v. United States, 276 U.S. 394, 406 (1928) (unanimous

opinion per Taft, C.J.); id. at 407–08 (explaining that

Congress may direct the Executive to set “just and

reasonable” interstate-carrier rates because “[i]f Congress were to be required to fix every rate, it would be

impossible to exercise the power at all”). The Court

has recognized that “in our increasingly complex society, replete with ever changing and more technical

problems, Congress simply cannot do its job absent an

ability to delegate power under broad general directives.” Mistretta v. United States, 488 U.S. 361, 372

(1989). And as Justice Scalia emphasized, this Court

has “ha[s] ‘almost never felt qualified to second-guess

Congress regarding the permissible degree of policy

judgment that can be left to those executing or applying the law.’” Whitman v. Am. Trucking Ass’ns, 531

U.S. 457, 474–75 (2001) (quoting Mistretta, 488 U.S.

at 416 (Scalia, J., dissenting)).

Indeed, delegation of the power to formulate policy, including by interpreting legislative acts, is indispensable to modern government. A recent review of

more than 440 significant federal statutes enacted between 1948 and 2016 found that “more than 99

11

percent” “contain delegations to federal agencies.”

Pamela J. Clouser McCann & Charles R. Shipan, How

Many Major U.S. Laws Delegate to Federal Agencies?

(Almost) All of Them, 10 Pol. Sci. Rsch. & Methods

438, 438–44 (2021). Taken seriously, petitioners’ suggestion that Congress cannot delegate policy discretion to agencies would, in an instant, taint as constitutionally suspect hundreds of federal statutes.

Chevron recognizes and respects that Congress’s

constitutional authority to legislate under its enumerated powers—for example to regulate interstate commerce—includes the authority to delegate responsibility for implementing Congress’s directives. That

power is squarely with Congress’s broad power “To

make all Laws which shall be necessary and proper

for carrying into Execution the foregoing Powers, and

all other Powers vested by this Constitution in the

Government of the United States, or in any Department or Officer thereof.” U.S. Const. art. I, § 8, cl. 18.

A rule of judicial review that overrode Congress’s

choices as to how and by whom its statutes should be

carried into execution would directly contravene this

constitutional disposition.

Congress’s choice to delegate to an agency—and

what and how to structure the agency’s decisions—are

integral aspects of statutory design. Substantial delegation is essential in any large public or private organization—let alone in governing a wealthy continental nation of a third of a billion people. 5 Congress

chooses to delegate in order to make use of agencies’

5 See Beau J. Baumann, Americana Administrative Law, 111

Geo. L. J. 465, 516 (2023).

12

distinctive institutional capacities and characteristics, including scientific and technical expertise; the

flexibility to adjust policies to changing circumstances; the ongoing ability to account for the interaction of related public policies and programs; and political responsibility, based upon presidential control.6

A world in which congressional delegations conferred no meaningful interpretive authority would be

far out of step with the expectations and intentions of

Congress. See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An

Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901,

906–07, 927–28 figs. 1–2 (2013). For decades, Congress has drafted and enacted legislation on the understanding that agency interpretations of statutory

language would receive judicial deference, provided

they were consistent with the statute and reasonable

(as determined by the federal courts). And Congress is

also well aware of how to limit agency discretion under Chevron: “Congress knows to speak in plain terms

when it wishes to circumscribe, and in capacious

terms when it wishes to enlarge, agency discretion.”

City of Arlington, 569 U.S. at 296. Against that

6 See, e.g., Mathew D. McCubbins, Roger G. Noll, & Barry R.

Weingast, Structure and Process, Political and Policy: Administrative Arrangements and the Political Control of Agencies, 75

Va. L. Rev. 431, 446–49 (1989) (recounting the policy challenges

that led Congress to delegate certain powers under the Clean Air

Act); Matthew C. Stephenson, Statutory Interpretation by Agencies, in Research Handbook on Public Choice and Public Law

287–88 (Daniel A. Farber & Anne Joseph O’Connell eds., 2010)

(“agencies may have better access to information about the connection between policy choices and actual outcomes”).

13

background, Congress has in some instances chosen

to provide for de novo review, or other standards different from Chevron’s reasonableness test. Barnett &

Walker Br. 8–11. And Congress has rejected many

proposals to undo or alter Chevron. Barnett & Walker

Br. 11–12; U.S. Br. 30.

The Court should not accept facile claims that Congress’s decisions to delegate policy–making discretion

to agencies are mere products of institutional lassitude or a desire to avoid political responsibility—such

that all that a ruling for petitioners would mean is

that Congress would have to “work a little harder on

occasion.” West Virginia Br. 28. Far more often, Congress (like other principals in the public and private

worlds alike) chooses to delegate for sound, public-regarding reasons, such as that it determines that it

cannot pre-ordain all the implementation-level decisions necessary to administer a statute, what adjustments shifting circumstances may call for, or that it

wishes to call upon agency factfinding or analytic expertise. And Chevron’s rule that statutory silence or

ambiguity on a particular point should normally be

deemed to confer authority was realistic even before

many decades of experience made it the settled background rule. It is implausible indeed that Congress

would routinely decide that an administrative agency

should have responsibility for implementing a statute,

but that a federal court—or 93 different ones—should

have sole and conclusive responsibility to determine

the meaning of statutory gaps and ambiguities.

The Court should also reject petitioners’ argument

(Pet. Br. 28–29) based on the 1947 Administrative

Procedure Act (APA), 5 U.S.C. §§ 701 et seq. Surely the

14

many Congresses that delegated policymaking authority to agencies in the hundreds of statutes enacted

in the decades after Chevron was handed down could

not have thought that it would be unlawful for federal

courts to follow Chevron’s instructions regarding deference. Even as an original matter, it seems implausible to maintain that the APA, which was intended to

“restate the law of judicial review,” Attorney General’s

Manual on the Administrative Procedure Act 9 (1947),

rejected the teachings of J.W. Hampton and other preAPA cases affirming that courts should respect administrators’ reasonable interpretive choices. See

Ronald M. Levin, The APA and the Assault on Deference, 106 Minn. L. Rev. 125, 130 (2021); Cass R. Sunstein, Chevron as Law, 107 Geo. L. J. 1613, 1654–56

(2019). And longstanding practice under the APA

would weigh strongly against an about-face even if the

question were closer. See U.S. Br. 41–44.

The APA’s text certainly does not mandate de novo

judicial review even when Congress has delegated implementation responsibility to the Executive Branch.

The APA tasks courts with deciding questions of law

“to the extent necessary to decision,” 5 U.S.C. § 706;

limits them to deciding “relevant” issues of law, id.;

withholds judicial review entirely (making the agency

the only interpreter) when “statutes preclude review”

or when “agency action is committed to agency discretion by law,” and instructs that certain agency decisions be reviewed under the “arbitrary, capricious,

and abuse of discretion” standards. Id. §§ 701,

706(2)(A). The APA’s text refutes the proposition that

it requires that federal courts decide de novo all questions of law related to statutory implementation.

15

Petitioners are ultimately asking this Court to

override Congress’s choices about how its enactments

should be administered. Doing so would dramatically

transfer authority from the two elected branches of

government to federal judges. The power to make that

sweeping change belongs to Congress, not the courts.

II. Judicial Review Standards Should Respect

the Constitutional Status, Institutional Capacities, and Accountability of Executive Officials Charged with Implementing Acts of

Congress.

In addition to honoring Congress’s choices regarding statutory implementation, both the Constitution’s

allocation of responsibilities among branches and the

branches’ relative institutional capacities counsel a

review standard that gives appropriate weight to Executive officials’ interpretations of statutes Congress

has charged them with implementing.

Petitioners’ amici take aim at the public officials

charged by Congress with implementing statutes, who

are derided as “unaccountable” (Pacific Legal Found.

Br. at 8), “power-hungry” (Gun Owners of America,

Inc. et al. Br. 11), “bureaucrats” (New Civil Liberties

Alliance Br. 4)—ignoring that the Executive officers

who administer statutes have their own constitutional

status—including explicit recognition of their subjectmatter expertise, see U.S. Const., art. II, § 2 (Opinion

Clause), are sworn to the Constitution just like members of the other branches, art. VI, cl. 3, and are subject to an unequalled array of constraints that includes substantial checks from the only officer elected

by the whole Nation and substantial checks from the

other two branches. Cf. Chevron, 467 U.S. at 865–66

16

(noting that federal courts have “no constituency” or

special policy or technical expertise).

The people whom petitioners’ amici call “bureaucrats” (e.g., West Virginia et al. Br. 13; Pacific Legal

Found. Br. 8, 9, 25, 30) are public servants who are

themselves, or are directed by, constitutional officers.

They typically have extensive expertise and are no

less dedicated to following the law and serving the

public than are other federal officers, including federal judges, who take the same oath. Executive officers strive to act in ways that are simultaneously consistent with their statutory authority—as understood

through “institutional memory” provided by career

staff—and with policy guidance and prioritization

conveyed by the Nation’s highest elected official.

Petitioners and their supporters disregard the significant ways in which Executive Branch delegatees’

interpretations of statutes are (1) informed by extensive subject-matter expertise, uniquely robust resources, institutional memory, and comments from

the broad public rather than merely the arguments

and evidence adduced by the parties to case-by-case

litigation; and (2) limited by multiple, substantial constraints in addition to the prospect of judicial review

itself.

Modern federal agencies are structured to govern

through principles of expertise and political accountability. The control of regulatory policy by Presidential

appointees who oversee staffs of career civil servants

facilitates effective policy based on technical and legal

knowledge and capability, with guardrails of transparency and accountability to both Congress and the

public. See Anya Bernstein & Christina Rodríguez,

17

The Accountable Bureaucrat, 132 Yale L. J. 1600,

1633–34 (2023).

First, developing effective policy that takes account of the immense real-world complexities and implications of modern governance depends on a large

number of interdisciplinary experts. Agencies are

structured to enable specialization and coordination

in service of policymaking guided by goals set by the

democratically elected Presidential administration.

Id. They are also designed to allow the President and

other politically responsible decision-making officers

to draw on the knowledge of federal research scientists, economists, social science researchers, policy

and industry experts, technologists, and lawyers, all

of whom are sources of both practical expertise and

institutional memory. See id. at 1634, 1643–44.

Second, long-tenured agency lawyers provide essential knowledge of the intricate statutory, regulatory, and constitutional frameworks within which

agencies develop policy, as well as the judicial canons

that govern review of agency actions, thus respecting

and effectuating separation of powers principles. See

id. at 1635. Tenured lawyers are conscious of their

agency’s responsibilities to the courts, the regulated

public, and Congress, and work to enhance their institutions’ reputations with diverse audiences. Thomas

W. Merrill, High Level, “Tenured” Lawyers, 61 L. &

Contemp. Probs. 83, 93 (1998). Career agency lawyers

provide “a unique vantage point for understanding the

factual details underpinning the constitutional implication of particular policies, [and] the interaction between a complete federal statutory scheme” and state

laws that are at risk of preemption. Kenneth A.

18

Bamberger, Normative Canons in the Review of Administrative Policymaking, 118 Yale L. J. 64, 96–97

(2008). Agencies’ legal experts also provide training to

political appointees, regardless of party, and to junior

civil servants, amplifying an agency’s ability to create

policy consistent with statutory and constitutional obligations. See Merrill, supra, at 104. Agencies are an

indispensable part of the rule of law.

An empirical study of career civil servants found

that agency lawyers understand that their primary

job is to serve as faithful agents to Congress. See

Christopher J. Walker, Inside Agency Statutory Interpretation, 67 Stan. L. Rev. 999, 1066 (2015). Agencies

typically interpret statutory mandates with keen

awareness of their constitutional obligation to carry

out the wishes of Congress as expressed through legislative text, using interpretative guidance provided

by federal courts. Id. Furthermore, coordination between technical and legal experts helps both longserving lawyers and Presidential appointees to understand the real-world impacts—and constitutional and

statutory implications—of given policy options.

Gillian E. Metzger, Administrative Constitutionalism,

91 Tex. L. Rev. 1897, 1923 (2013).

Finally, federal agencies’ structure facilitates democratically accountable policy through ongoing contact

with affected parties, including businesses, trade associations, state and local governments, nonprofits,

unions, academic experts, and others. See id. at 1928.

This communication occurs through formal mechanisms like notice-and-comment rulemaking as well as

informal interactions that allow affected parties to

participate in policymaking and provide further

19

opportunities for oversight from Congress. Bamberger, supra, at 98.

Far from “black box” policy-making, modern federal administration typically enables continuous contact with affected stakeholders, giving the public a

voice in shaping policy. See Bernstein & Rodríguez,

132 Yale L. J. at 1656–58. The career civil servants

connect political officials with their networks of stakeholders, giving the administration direct access to national constituencies. See id. at 1628.

The slogan that agency officials charged with authoritatively interpreting federal statutes are “unaccountable” (e.g., West Virginia et al. Br. 5; Chamber of

Com. of the U.S. Br. 14) is wildly unfounded, and is

not a sound basis for according less weight to agencies’

interpretations of statutes under their administration.

In fact, Executive officers responsible for implementing statutes operate under a suite of constraints

that, together, are as at least as robust and confining

as those faced by any other participants of our constitutional system. These include:

(1) Agencies are dependent on Congress for

their very continued existence and on congressional appropriations for their budgets and for specific initiatives;7

7 See Curtis W. Copeland, Cong. Rsch. Serv., Congressional

Influence on Rulemaking and Regulation Through Appropriations Restrictions 7–10 (2008) (analyzing the ways in which Congress influences agency rulemaking through appropriations);

Gillian E. Metzger, Taking Appropriations Seriously, 121 Colum.

L. Rev. 1075, 1086 (2021) (noting that Congress and the

20

(2) Agency officials are subject on an ongoing

basis to congressional oversight, including congressional demands for information and required

testimony before committees;8

(3) Agency officials must undergo Senate confirmation, U.S. Const. art. II, § 2, cl. 2, providing

protections against “the appointment of unfit characters” while promoting “stability in the administration;”9

President are “increasingly resorting to appropriations to advance their policy agendas and exert control over” agencies); id.

at 1093–94 (describing Congress’s use of appropriations riders to

influence agency policy).

8 See Jesse M. Cross & Abbe R. Gluck, The Congressional Bureaucracy, 168 U. Penn. L. Rev. 1541, 1581, 1591–94 (2020) (explaining how the Joint Committee on Taxation and the Government Accountability Office facilitate ongoing congressional oversight of agencies); J.R. DeShazo & Jody Freeman, The Congressional Competition to Control Delegated Power 41–42 (U.C.L.A.

L. Sch. Research Paper No. 02-24, 2002), http://ssrn.com/abstract_id=324482 (describing how congressional committees provide ongoing oversight of agency policy); Molly E. Reynolds &

Jackson Gode, Tracking Oversight in the House in the 116th Congress, 66 Wayne L. Rev. 237, 241–44 (2020) (detailing methodology for tracking House oversight of the Executive Branch); Elena

Kagan, Presidential Administration, 114 Harv. L. Rev. 2245,

2259–60 (2001) (discussing congressional review of agency action

at the committee and subcommittee level).

9 The Federalist No. 76, at 457 (Alexander Hamilton) (Clinton Rossiter ed., 1961); see also Note, Developments in the Law—

Presidential Authority, 125 Harv. L. Rev. 2057, 2147–53 (2012)

(recounting recent conflicts between the President and Congress

regarding appointments to agency and explaining the importance of the Senate’s advice and consent power); William G.

Ross, The Senate’s Constitutional Role in Confirming Cabinet

Nominees and Other Executive Officers, 48 Syracuse L. Rev.

21

(4) Agency officials are subject to oversight by

the President, who is accountable to the national

electorate, and keenly interested in avoiding political liabilities from any corner of their administration;10

(5) Agency actions must follow congressionally

prescribed public rulemaking processes, e.g., 5

U.S.C. § 553; 42 U.S.C. § 7607(d), including requirements to publish formal proposals, which

limit the permissible contours of final decisions; to

solicit and respond to public comment on the proposals; to publicly docket records; and to provide

written explanations for administrative choices;11

1123, 1196–99 (1998) (arguing that the Senate confirmation process provides a crucial public forum for agency accountability).

10 Kagan, supra, at 2331–33 (explaining how presidential

control over agency action promotes accountability and transparency in the Executive Branch); id. at 2335 (“[B]ecause the President has a national constituency, he is more likely to consider, in

setting the direction of administrative policy on an ongoing basis,

the preferences of the general public, rather than merely parochial interests.”); Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1131, 1144–

45 (2012) (explaining that the President bears the most visible

political risk from failed interagency coordination); id. at 1175–

81 (2012) (detailing the administrative mechanisms and structures Presidents employ to create public interagency coordination).

11 See Bernstein & Rodríguez, supra, at 1650–62 (detailing

formal and informal ways agencies interact and seek input from

regulated parties throughout the rulemaking process); David S.

Tatel, The Administrative Process and the Rule of Environmental

Law, 34 Harv. Env’t L. Rev. 1, 6 (2010) (discussing the kind of

explanations required for a notice-and-comment rulemaking to

withstand scrutiny under Chevron step two).

22

(6) Interagency review by the Office of Management and Budget and other Executive Branch entities provides a formal mechanism for White

House supervision of agency proposals and opportunity for additional public input and for comment

from other agencies;12 and

(7) The Congressional Review Act, 5 U.S.C.

§§ 801 et seq., provides Congress a specially structured, streamlined ability to overturn major federal rules (and prospectively bar agencies from

adopting similar rules) without super-majority cloture requirements.13

All of these constraints are in addition to the fact

that agencies’ actions are presumptively subject to judicial review. See Weyerhaeuser Co. v. U.S. Fish and

Wildlife Serv., 139 S. Ct. 361, 370 (2018) (citing Abbott

12 Cass R. Sunstein, Commentary: The Office of Information

and Regulatory Affairs: Myths and Realities, 126 Harv. L. Rev.

1838, 1840–44 (2013) (summarizing the role of OIRA in rulemaking, particularly in ensuring transparency and interagency coordination); Eloise Pasachoff, The President’s Budget as a Source

of Agency Policy Control, 125 Yale L. J. 2182, 2209 (2016) (detailing the Office of Management and Budget’s “three levers that affect agency policy making during the budget-preparation process”); id. at 2189–91 (explaining how Resources Management

Offices within OMB play an important role in directing and overseeing agencies).

13 See Maeve P. Carey & Christopher M. Davis, Cong. Rsch.

Serv., The Congressional Review Act (CRA): Frequently Asked

Questions 6–10 (2021); Maeve P. Carey & Christopher M. Davis,

Cong. Rsch. Serv., The Congressional Review Act (CRA): A Brief

Overview 1–3 (2023). “The CRA has been used to overturn a total

of 20 rules.” Id. at 1.

23

Laboratories v. Gardner, 387 U.S. 136, 140 (1967)); 5

U.S.C. § 702.

III. Judicial Review Standards Should Promote

Stability and Predictability for the Public,

Including Statutory Beneficiaries and Regulated Entities Alike.

Judicial review principles should foster stability

and predictability for the public, including both beneficiaries and objects of agency rules. Petitioners reject

those values in proposing a radical break from decades-long practice and abrupt repudiation of one of

the most relied-upon cases of all time. See Merrill Br.

26. Petitioners’ breezily dismissive tally of the beneficiaries of Chevron—“some governmental officials”

who would be “inconvenience[d]” if the current regime

were eviscerated, Pet. Br. 17—is likewise severely deficient.

This Court, in contrast, must acknowledge and

weigh the full range of consequences of any altered regime. Cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2423 (2019).

And such evaluation inevitably will reveal that a ruling significantly disrupting Chevron would have acute

disruptive effects for the law and impose corresponding costs across the economy, and any likely alternative standard would produce profound, chronic, and

costly uncertainty.14

14 See Jiwon Lee, David Schoenherr, & Jan Starmans, The

Economics of Legal Uncertainty 47 (Eur. Corp. Governance Inst.,

Law

Working

Paper

No.

669/2022,

2022),

24

Were the court to overrule Chevron, its decision

could immediately destabilize vast legal regimes that

have been established during Chevron’s nearly 40year tenure as settled law. It would invite new challenges based upon the proposition that decades-old judicial decisions upholding agency policies were (or

may have been) wrongly decided. Lower federal courts

might well be inundated with petitions to reopen longsettled agency rules and policies. The costs would be

enormous, as parties shift resources away from other

priorities to challenge or defend established regulatory programs and key precedent. Critical permits,

product approvals, and other core regulatory programs could be disrupted or jeopardized, with untold

consequences for the people and businesses that rely

on them. As the United States correctly notes, the

“prospect of cascading uncertainty” is “another reason

to leave any substantial changes to Congress, which

could act prospectively.” U.S. Br. 34.

Over the long term, any replacement methodology

also would likely generate greater uncertainty and follow-on costs as compared to Chevron.15 Many regulated entities—particularly national corporations—

particularly value regulatory stability and uniformity.

Chevron serves those values better than a regime of

de novo interpretation in every federal judicial district

https://ssrn.com/abstract=4276837 (finding that “legal uncertainty has a detrimental effect on economic activity”).

15 Petitioners claim that occasional issues arising over 40

years under Chevron establish “unworkability,” Pet. Br. 34, but

fail to provide any reason to expect that an abruptly reconfigured

regime would generate less uncertainty, legal risk, or complexity

as it is applied in hundreds of cases annually.

25

(or, more precisely, in every district judge’s courtroom). See Merrill Br. 26–27. A rule that permits (and

requires) more than 650 federal district judges to invalidate agencies’ decisions whenever the judge interprets an ambiguous statute differently would produce

chaos, frustrate effective administration of Congress’s

directives, and invite forum- and judge-shopping.

Lower courts with large caseloads would suffer in

their attempts to apply standards that are less uniform and require greater interpretive effort. See id.

For Congress, Chevron’s status as “a stable background rule against which [it] can legislate” would be

lost. See City of Arlington, 569 U.S. at 296; see also

U.S. Br. 28–29; Barnett & Walker Br. 14–16. Also injured would be private parties who have made investments and other commitments in reliance on the

Chevron framework and judicial and administrative

decisions under it. See U.S. Br. 32–33.

Petitioners’ new regime would complicate the numerous cases where legal, factual, and policy determinations are intertwined. Executive officials’ statutory

interpretations are often interwoven with determinations that are undisputedly reviewable under the

strongly deferential “substantial evidence” or “arbitrary and capricious” standards. See 5 U.S.C.

§ 706(2)(A). Under current law, little turns on reviewing courts’ ability to distinguish definitively between

determinations that might fairly be deemed legal, factual, or policy judgments: As this Court has previously

noted, arbitrary and capricious review and Chevron’s

step-two reasonableness inquiry are often “the same.”

Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011); see

Sorenson Commc’ns, LLC v. FCC, 897 F.3d 214, 230

(D.C. Cir. 2018).

26

But a new, high-stakes dichotomy between the review standards for legal interpretation and policy

judgments would generate legal uncertainty and extensive litigation—with no reason to expect different

courts would resolve the potentially outcome-determinative classification questions consistently. A regime

that would make the standard of review careen from

reasonableness to de novo based upon such notoriously murky and contestable distinctions would be

cumbersome, disuniform, and uncertain.

Similarly, many statutory terms simply do not

have a single meaning that can be determined

through application of the tools of statutory construction alone. For example, the Clean Air Act predicates

certain requirements on whether there has been an

“increase[]” in a pollution source’s emissions, see 42

U.S.C. § 7411(a)(4), but does not say whether, in determining whether such an increase has occurred, one

should compare present emissions to those of five

years ago, six months ago, two weeks ago, 10 minutes

ago, or something else. See New York v. EPA, 413 F.3d

3, 22-23 (D.C. Cir. 2005). Chevron yields a practical

and sensible way of addressing these common situations. Petitioners offer no workable alternative.

Overturning Chevron would seriously undermine

the uniformity of federal law. U.S. Br. 37. One reason

Congress frequently chooses to delegate responsibility

to an agency is to ensure uniform national interpretation and application of the law. See also Barnett &

Walker Br. 27–28. Deference to the agency’s reasonable interpretation of ambiguous language protects

this objective. In contrast, de novo interpretations of

ambiguous statutory language by hundreds of federal

27

judges are likely to yield a multiplicity of differing answers, undermining stability. See Merrill Br. 26 (noting “the differential capacity of this Court and the

lower federal courts to engage in de novo review of all

questions of statutory interpretation arising on judicial review”).

The nature of the statutory terms through which

Congress frequently delegates policy-making authority to agencies—terms that are often at once broad

and designed to be given a unitary meaning by the

specialized agency—are inherently likely to result in

a plethora of different and possibly inconsistent meanings when interpreted (diligently and reasonably) by

multiple different federal courts.

For example, suppose a statute directs an agency

to promulgate a rule ensuring that dock workers be

protected from “unsafe conditions.” Different reviewing courts empowered (and required) to measure an

agency rule against the judges’ own blank-slate interpretation of such a term would be almost certain to

arrive at a wide array of understandings. If the implementing regulation is one that details specific requirements (e.g., mandated safety equipment, or maximum

heights for stacked cargo, etc.), it would be a minor

miracle if courts’ de novo answers accorded with the

agency’s (or with each other’s).16

16 Even narrower and more mundane delegations intended

for a single agency are likely to produce disparate results in the

hands of multiple judges reviewing without deference. If the statute tells an agency to ensure that warning signs are painted

“bright yellow,” different judges are likely to have differing conceptions of what hues, tones, tints, and shades that term includes

28

Again, petitioners are plainly wrong when they describe those harmed by overruling Chevron as “government officials” alone. Pet. Br. 17. In fact, the government “represents [] citizens’ interests,” U.S. Br. 41,

as reflected in the statutes it is charged with administering. Indeed, petitioners’ cynical accounting cuts

the intended beneficiaries of Congress’ scores of policy-delegating statutes out of the stare decisis reliance

calculus. Yet Congress enacts agency-administered

statutes to protect the American people from diverse

hazards such as poisonous food and drugs, financial

fraud, stock market collapses, toxic pollution, electricity blackouts, telephone spam, cyberattacks, perilous

working conditions, defective airbags and infant car

seats, and much more. Congress chooses to delegate

because it believes that agencies’ capabilities and expertise make them best suited to vindicate Congress’s

protective purposes effectively; overriding Congress’s

chosen means of implementing its laws would very

likely harm the public in serious ways.

and excludes. Cf. United States v. Home Concrete & Supply, LLC,

566 U.S. 478, 493 n.1 (2012) (“‘yellow’ is ambiguous”) (Scalia, J.,

concurring in part and concurring in the judgment).

29

CONCLUSION

This Court should affirm the judgment of the court

of appeals.

Respectfully submitted,

Vickie L. Patton

Peter Zalzal

Grace M. Smith

Environmental Defense

Fund

2060 Broadway

Suite 300

Boulder, CO 80302

Sean H. Donahue

Counsel of Record

David T. Goldberg

Megan M. Herzog

Donahue & Goldberg, LLP

1008 Pennsylvania Ave. SE

Washington, DC 20003

(202) 277-7085

sean@donahuegoldberg.com

September 2023

Counsel for Amicus Curiae