How the Supreme Court created agency deference
On this day in 1984, the Supreme Court decided Chevron v. National Resources Defense Council, which created the doctrine that courts normally must defer to government agencies when a law’s language is ambiguous.
The concept of “Chevron deference” came out of the competing interpretations of the Clean Air Act between the Carter and Reagan administrations. In 1977, Congress amended the Clean Air Act after criticisms the government failed to meet the air quality standards established by the Environmental Protection Agency (or EPA). The amended act required that “non-attainment” states establish a permit program regulating “new or modified major stationary sources” of air pollution. It largely left undisturbed the definition of “stationary sources” under the 1970 amendments to the Clean Air Act, which referred to “any building, structure, facility, or installation which emits or may emit any air pollutant." The Carter and Reagan administrations did not agree on a definition of stationary sources”
The Carter EPA interpreted stationary sources to cover any device in a manufacturing plant that produced pollution. In 1981, the Reagan EPA adopted a new definition that granted new equipment permits that did not meet the Clean Air Act standards for existing plants as long as total emissions for the plant itself did not increase. This was known as the “bubble concept,” treating the emissions of one industrial grouping as the same for purposes of the Clean Air Act.
Upon the change in definition, the non-profit environmental advocacy organization, the National Resources Defense Council, sued and challenged the new standard.
On June 25, 1984, Justice John Paul Stevens wrote the decision for a unanimous court. It considered the question of whether judicial review of an agency’s interpretation of a statute, when Congress has not directly spoken to the precise issue at hand, should be based on a permissible construction of the statute.
The Court looked to several prior cases to make its ruling. It first enforced deference to agency interpretations in the 1944 case of Skidmore v. Swift, whereby they adopted a case-by-case standard based on the persuasiveness of an agency’s interpretation. Later, in Morton v. Ruiz, the Court wrote that, “The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." Generally, the Court found that it was a well-settled principle that considerable weight and deference should be granted to an agency’s construction of a statutory scheme.
In the case of Chevron, the 1977 amendments left the agency with the power to interpret ambiguous language. Justice Stevens argued that there was no clear intent in the legislative history of the 1977 amendments to elicit a clear definition of “stationary sources” and where the language was not precise on the question of its application, agencies had expertise beyond Congress and needed the flexibility to administer important legislation.
Stevens wrote that the fact that an administrative agency changed its interpretation of a statutory term did lead to the conclusion that no deference should be accorded to the agency's interpretation of the statute. Rather, policy arguments concerning the ‘bubble concept’ should be addressed to legislators or administrators, not to judges.
Chevron left Courts with a two-part test for when they should defer to the reasonable interpretation of a statute by an administrative agency: First, the language of the statute must be ambiguous or the intent of Congress not clear and secondly, the interpretation must be reasonable or permissible.
In the wake of Chevron, lower courts disagreed about what agency decisions Chevron applied to. While it was clear it applied to formal adjudications and legislative rulemaking, there was disagreement as to whether it applied to informal actions like interpretive rules, statements of policy, informal adjudications, and advisory letters. First, in the 1997 case of Auer v. Robbins, the Court expanded Chevron and ruled that agencies are afforded a high level of deference as to their interpretations of their own regulations. Then in 2001, the Court in United States v. Mead Co. added what scholars called “Step Zero” to Chevron: does the agency have the authority to issue binding legal rules? If it does not, Chevron does not apply, but Skidmore, a less deferential standard, may apply as it did in Mead to uphold the tariff schedules of the U.S. Customs Officials.
Chevron has continued to be the topic of discussion and one of the most cited Supreme Court precedents. Some scholars and justices have criticized Chevron deference as a violation of the ideas related to the Constitution's concepts about the separation of powers and the role of the courts as stated in Article III. In March 2020, Justice Neil Gorsuch suggested that the courts, “charged with the independent and neutral interpretation of the laws Congress has enacted,” should not defer what he called “bureaucratic pirouetting.” Defenders of Chevron deference point out that there is no Article III problem when courts recognize the discretion conferred by the statute. As Justice Elena Kagan ruled last year in Kisor v. Wilkie, Chevron does not create absolute deference to agencies, as courts must exhaust all the "traditional tools" of construction before concluding a rule is genuinely ambiguous.
Further Reading:
Daniel Farber, “Everything You Always Wanted to Know about Chevron Deference,” Yale Journal of Regulation, October 23, 2017, https://www.yalejreg.com/nc/everything-you-always-wanted-to-know-about-the-chevron-doctrine-by-dan-farber/
Philip Hamburger, “Chevron Bias,” George Washington Law Review (2016), http://www.gwlr.org/wp-content/uploads/2016/09/84-Geo.-Wash.-L.-Rev.-1187.pdf
Jonathan Siegel, “The Constitutional Case for Chevron Deference,” Vanderbilt Law Review (2018), https://cdn.vanderbilt.edu/vu-wp0/wp-content/uploads/sites/278/2018/04/18125109/The-Constitutional-Case-for-Chevron-Deference.pdf
Matthew Stephenson & Adrian Vermeule, “Chevron has Only One Step,” Virginia Law Review (2009), https://www.virginialawreview.org/volumes/content/chevron-has-only-one-step
Nicholas Mosvick is a Senior Fellow for Constitutional Content at the National Constitution Center.