Academic journal article Harvard Law Review

Waiving Chevron Deference

Academic journal article Harvard Law Review

Waiving Chevron Deference

Article excerpt

In a challenge to an agency action, what happens when the agency does not claim Chevron (1) deference? Perhaps the agency has failed to realize that the statute is ambiguous. (2) Or perhaps the agency fears political blowback from its policy choice and strategically takes the position that the statute unambiguously compelled its policy. (3) Irrespective of the reason, what result? The Supreme Court has never squarely addressed the question. But the circuit courts have almost uniformly suggested that the answer is waiver. That is, when an agency fails to invoke Chevron deference during litigation, the reviewing court will assume that Chevron does not apply. (4) This Note argues that such a regime is contrary to both law and sensible policy.

This question has substantial stakes. Consider, for example, the Trump Administration's ongoing effort to replace the Obama-era Clean Power Plan. (5) Because the Obama Administration promulgated the Clean Power Plan via notice-and-comment rulemaking, the process to replace it involves several important procedural and substantive hurdles under the Administrative Procedure Act (6) (APA). (7) Most importantly, a replacement plan must also be promulgated via notice-and-comment rulemaking, (8) which will likely take years. (9) The Trump EPA's volte-face will also be reviewed for arbitrariness, (10) which poses a problem under modern administrative law because the original plan was grounded in "a very elaborate set of findings in the record." (11) These hurdles are a feature, not a bug, of administrative law. They exist to ensure that the administrative state charts a relatively steady course in the face of fickle political winds. (12) Because of these hurdles, regime change does not inexorably lead to policy change--an outcome that rightly protects reliance interests, (13) promotes agency accountability, (14) and discourages irrational decisionmaking. (15) Such is the bargain struck by current doctrine between bureaucratic administration and presidential administration.

By waiving Chevron deference, however, the EPA can potentially evade the APA's hurdles altogether--while simultaneously disclaiming any responsibility. Instead of mounting an effort to administratively replace the Clean Power Plan (which would surely incur political cost), the EPA can simply disavow any entitlement to Chevron deference in the ongoing litigation over the Clean Power Plan's legality. (16) If the D.C. Circuit accordingly denies Chevron deference and proceeds to interpret the Clean Air Act de novo, it is likely that the court would reject that the EPA's reading of the relevant provision was the "best reading." (17) The proper remedy would then be vacatur of the rule. (18) Thus, by waiving Chevron, the EPA can conceivably secure the reversal of an agency policy without complying with any of the APA's strictures. And it can plausibly evade political responsibility for deregulation by pointing the finger at the judicial branch.

Modern administrative law blanches at the possibility. (19) And yet this regime is ours. The Trump Administration has already attempted to waive Chevron deference in at least one case. In Global Tel*Link v. FCC, (20) the Trump Administration's FCC refused to defend an Obamaera rule that capped the rates telephone companies could charge prison inmates for phone calls. (21) Attributing its shift in policy only to "significant changes in [agency] composition," (22) the FCC abandoned the rule in court and disclaimed any entitlement to Chevron deference. (23) What's worse, the D.C. Circuit endorsed the FCC's gambit--on its initial review, the court refused to apply Chevron, held that the FCC's interpretation was not the "best reading" of the statute, (24) and vacated the rule. (25) This case study casts Chevron waiver in an even more sinister light--as a potential weapon of deregulation.

This Note attempts to construct a more sensible doctrine of waiver. Unlike waiver in other contexts, an agency's failure to invoke Chevron deference implicates none of the traditional reasons for applying the doctrine of waiver. …

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