by: Jack Friedman
When an administrative agency such as the EPA decides to issue a regulation, that action may be challenged in the federal courts. The judicial review provisions of environmental statutes specifically authorize courts to review agency actions, such as the issuance of environmental regulations. Issuing a regulation is by no means an easy affair. Agencies must adhere to procedures laid out by the Administrative Procedure Act before publishing a rule. This process takes a considerable amount of time and money. Therefore, it is imperative to an agency like the EPA to be able to determine whether they have the regulatory authority because the courts will otherwise strike down the agency action. In Chevron v. NRDC, the Supreme Court created a 2 part test for determining whether an agency had authority to issue a regulation.[1]This test not only looks to Congressional intent, but also to the agency’s interpretation of the statute in deciding whether or not that agency was authorized to issue a regulation. As I will explain, the latter is vital to facilitating a future of successful environmental regulations.
Before we discuss Chevron, it is important to give an explanation of how agencies are delegated authority to create regulations. Congress, in its legislative process, passes legislation that gives administrative agencies to carry out certain regulations. It is Congress’s delegation of power which gives agencies the ability to carry out their actions. Therefore, in creating regulations, agencies must adhere to the will of Congress. If an agency carries out an action to which they didn’t not have the authority to do so, courts will strike it down.
Now that we have the background, how does a court make a determination that Congress gave an agency the authority to carry out a regulation? This takes us to 1984, in the case of Chevron v. NRDC. In Chevron, the Supreme Court created a test to determine whether an administrative authority had authority by Congress to implement a certain regulation.[2] In Chevron, the Court faced the question of whether the Environmental Protection Agency’s interpretation of “stationary source” in the Clean Air Act was reasonable to include not just a single smoke stake itself, but the plant as a whole.[3] That sounds confusing right? Well, what is important is that the Court was trying to determine whether Congress had given the EPA the authority to carry out such a ruling.
So, how did the Court determine if the EPA had authority? The Supreme Court created the Chevron 2-step in order to make a determination. The first step of Chevron is determining whether the intent of Congress is clear.[4] Specifically, whether Congress has directly spoken to the precise question at issue.[5] For example, if Congress passed legislation that unambiguously defines a word, then the intent of Congress is clear. For example, if Congress when issuing environmental legislation, gave the EPA the ability to regulate the deforestation of “Red Pine Trees,” Congress intended for the EPA to regulate the deforestation of the tree. In Congress’s regulation, it directly spoke to the regulation of pine trees. If this is so, that is the end of the analysis as courts will give the interpretation that effect given Congress’s intent is clear.[6]Unfortunately, as was the case in Chevron, Congress may not be so clear as to define the exact words which are subject to agencies regulation. There is a reasoning behind this strategy which I will touch on later on in this post. Now back to Chevron. The Court determined “Stationary Source” in the Clean Air Act is clearly ambiguous on whether that means regulate one smoke stake, or all of them. Because it “Stationary Source” was determined to be ambiguous[7], the Court created the second step of the Chevron 2-step. The Court then decides whether the agency’s interpretation of the word is a reasonable construction of the statute.[8] Basically, the Court needs to find the agency’s interpretation as a logical outgrowth of the word Congress referred to in its statute. If the answer the Court finds the answer to that question is yes, then the court will grant deference to the agency’s interpretation of the statute which it is administers.[9] As such, the agency is allowed to regulate the action in question. In Chevron, the Court held that the EPA met the second step, finding that the EPA’s definition of the term “source” was a permissible construction of the statute.[10] If, however, the court decides that the agency’s interpretation was not reasonable, the court will strike the regulation down.
The Chevron 2-step process is extremely important for administrative agencies like the EPA to carry out regulations based on the will of Congress. As I alluded to earlier, Congress does not always explicitly define what is subject to an agency’s authority. Why? Congress is not an all knowing entity! Congress cannot predict everything that is subject to regulation by an agency! As time passes, we are faced with new, impending threats. Think about how many chemical substances have been found to be detrimental to human health decades after they are introduced in various consumer products. If Congress creates narrow regulating authority to an agency when it enacts legislation, it risks limiting the agency from regulating a relevant future threat that was unknown to Congress at the time. This is why the step 2 of the Chevron test is so important in allowing agencies to regulate future threats. The test gives a reasonable level of deference to agencies to make these determinations. As Justice Stevens explained in the majority opinion in Chevron, deferring to an agency’s reasonable interpretation is important considering how the regulatory scheme is technical and complex.[11] Who better to make this determination than the agency that is comprised of experts in that field. As Justice Stevens notes Judges, and the members of Congress are not experts and thus the agency is more capable to make this decision.[12]
Although I have explained the importance of judicial deference, I want to note that regulating our administrative agencies is very important. Given they are delegated authority by Congress, granting broad regulatory authority to agencies would be contrary to the separation of powers. I may be naïve, but I have faith in this country’s ability to not only delegate authority, but to hold those with authority in check. This is why I stand by the Chevron 2-step. It gives agencies the chance to determine what is to be regulated, while still holding them to a reasonable standard in case they venture to far from Congress’s intent.
When considering the future of environment regulation, it is important to give the EPA regulatory discretion to face new problems as they arise. I fear the future of our planet. The negative impacts of climate change continue to grow, and therefore, environmental regulation has never been more important. For a long time, we did not understand how burning fossil fuels would contribute to massive bleaching events on coral reefs, destroying ecosystems which many people rely on in order to survive. It has never been more important to give agencies like the EPA, the discretion to regulate critical threats to our environment. As noted early, Justice Stevens explained how regulating is technical and complex. Therefore, we must give agencies discretion to regulate the issues that, as experts, they determine pose the most significant threats to the future of human health and the environment. If courts then determine that the agency did not have the authority by Congress to regulate the action, then following Chevron step 2, the court should strike it down. But it is important to at least give agencies the chance to regulate new issues that may pose a significant threat.
Lastly, on June 30th, 2022, the Supreme Court issued a ruling West Virginia v. EPA that may upend the Chevron 2-Step entirely. I suggest you to take at my classmate’s, Laura Christensen Garcia, blog post titled “West Virginia v. EPA: The Fallacy of The Major Questions Doctrine” in order to gain a better understanding on the ruling.
[1] See generally Chevron U.S.A v. Natural Res. Def. Council, 467 U.S. 837 (1984).
[2] See generally Chevron, 467 U.S. 837 (1984).
[3] Id. at 840.
[4] Id. at 842.
[5] Id.
[6] Id. at 843.
[7] Id. at 845.
[8] Id. at 843.
[9] Id. at 865.
[10] Id. at 866.
[11] Id. at 865.
[12] Id.