With Friends like These: The Trouble with Auer Deference

Article excerpt

I. INTRODUCTION  II. THE MANY DOCTRINES OF DEFERENCE      A. Agency Interpretations     B. Development of Deference to Agency Statutory Interpretations     C. Development of Deference to Agency Regulatory Interpretations  III. WHAT TO DO WITH AUER  IV. THEORIES OF DEFERENCE  V. A NEW WAY TO SEE DEFERENCE TO STATUTORY INTERPRETATIONS  VI. REPLACING AUER      A. Decker and the Trouble with Surprise     B. SmithKline Beacham--Heads You Win, Tails I Lose     C. Waters of the United States Guidance  VII. CONCLUSION 

I. INTRODUCTION

Of the issues raised by the Supreme Court's recent decision in Decker v. Northwest Environmental Defense Center ("Decker"), (1) the one that elicited the most excited commentary--other than, perhaps, the Chief Justice's use of the contraction "don't" (2) was the Court's decision to give controlling weight to the Environmental Protection Agency's (EPA) interpretation, offered in the agency's amicus brief, of its regulations. (3) No doubt it was the withering attack Justice Scalia aimed at this so-called "Auer deference" (4) and the Chief Justice's invitation for future parties to seek to overturn Auer v. Robbins (Auer), (5) that piqued the interest in this issue. (6) But, it is also the starkness of the facts in Decker that makes the issue of deference to agency interpretations of regulations so compelling. Although the deference doctrine has been part of Supreme Court jurisprudence for nearly seventy years, rarely has the power of Auer deference been so clearly displayed. Decker should be a call for courts to revisit and revise their approach to deferring to agency interpretations of regulations.

In Decker, an environmental group brought suit against several logging companies and the State of Oregon under the Clean Water Act (CWA) (7) for their unpermitted discharges of polluted stormwater from logging roads. (8) Under the CWA, stormwater "discharge associated .with industrial activity" is illegal unless authorized by a permit. (9) In its "Industrial Stormwater Rule," EPA defined the scope of "industrial activity" that would be subject to the permit requirement. (10) That rule explicitly included the "logging" industry in the list of sectors falling within the CWA's regulatory ambit. (11) The rule also clarified that "industrial activity" extended beyond the sites of activities themselves and included access roads associated with those activities. (12) NEDC argued that, pursuant to these regulations, discharges of stormwater from the extensive drainage systems of logging roads required permits. (13)

Three months after NEDC filed its complaint, EPA submitted an amicus brief in support of the defendants' motion to dismiss, arguing that its rule did not cover stormwater from logging operations. (14) The agency argued that, despite the fact that the rule identified logging as a regulated industrial sector, the agency actually meant only to include facilities--such as lumber mills--not the actual logging operations at issue in the case. (15)

Although this was the first time EPA had ever articulated this construction of its regulation, the majority of the Court deferred to EPA's interpretation with little apparent hesitation. (16) Under the Auer doctrine, the Court deferred because EPA's interpretation of its rule was not "plainly erroneous." (17) Justice Scalia, alone in dissent, argued that the regulation plainly applied to "logging" and "tree cutting," and thus the rule was clear and the defendants were liable for discharging industrial stormwater without a permit. (18) Deferring to EPA's interpretation, Scalia explained, was simply wrong. (19) In so doing, Justice Scalia took aim at Auer itself, arguing that, in effect, Auer deference allows agencies not just to write federal law via regulations, but also to stand in the federal courts' shoes and interpret what those regulations mean. (20) By allowing an agency to write and interpret federal law, he argued, Auer contravenes the separation of powers enshrined in the Constitution and undermines democratic governance. …