Chevron gets fresh D.C. Circuit airing — sort of

By Ellen M. Gilmer | 06/14/2019 01:17 PM EDT

The E. Barrett Prettyman Courthouse houses the U.S. Court of Appeals for the District of Columbia Circuit.

The E. Barrett Prettyman Courthouse houses the U.S. Court of Appeals for the District of Columbia Circuit. Bill Clark/CQ Roll Call/Newscom

A complex Clean Air Act fight nearly 40 years old landed before a pair of federal judges yesterday, but the stakes were decidedly low.

In an event Columbia Law School professor Gillian Metzger dubbed "the ultimate administrative law geek-out," lawyers and judges converged on the U.S. Court of Appeals for the District of Columbia Circuit to reimagine oral arguments in the case that spawned the Chevron deference — a doctrine now central to agency litigation.

The D.C. Circuit decided the dispute in 1982, agreeing with the Natural Resources Defense Council that a Reagan-era EPA regulation violated the Clean Air Act. The Supreme Court reversed the decision in 1984, explaining that judges should yield to reasonable agency interpretations of ambiguous statutes.


The D.C. Circuit Historical Society staged a reenactment yesterday, with Judges Judith Rogers and Gregory Katsas presiding.

"I think because it’s May 1982, a little statutory history is in order," said Vinson & Elkins LLP attorney John Elwood, who played the role of NRDC’s lawyer for the event.

The now-landmark case arose in the early 1980s as the Reagan administration sought to loosen EPA’s definition of a "stationary source" under the Clean Air Act.

NRDC challenged Administrator Anne Gorsuch’s use of the "bubble concept," which viewed an entire power plant as a single source, allowing it to make various changes to boilers, smokestacks and other equipment without triggering EPA permitting requirements.

In an opinion authored by then-Judge Ruth Bader Ginsburg, the D.C. Circuit sided with NRDC and ordered EPA to halt the use of the bubble concept under the agency’s nonattainment program for areas with high levels of certain pollutants.

Deference didn’t come into play in the D.C. Circuit’s decision. The three-judge panel applied other recent precedents involving the bubble concept, considered the purpose of the Clean Air Act’s nonattainment program and determined the Reagan EPA’s approach was inappropriate under the law.

The Supreme Court saw it differently. In a 6-0 opinion, it reversed the lower court and said judges should defer to an agency’s understanding of murky statutes, so long as the agency’s position is reasonable.

Yesterday’s reenactment — before a packed courtroom that included Chief Judge Merrick Garland and other legal luminaries — explored how the case would have gone had the D.C. Circuit considered deference arguments at the time.

Elwood, reimagining NRDC’s arguments, argued the judges should apply their own judgment to whether EPA’s interpretation of the term stationary source was correct. Georgetown University’s David Vladeck, playing the role of EPA’s lawyer, said Congress clearly delegated rulemaking power to the agency, giving it the authority to resolve any ambiguities.

The judges on the mock panel grilled the lawyers, raising arguments that are now common in the debate over Chevron. Katsas, for example, asked whether giving agencies deference would build bias into the judicial process, putting a thumb on the scale for the government. But he also questioned whether it would be appropriate for judges to assume they know best on technical policy judgments.

The lighthearted exploration of Chevron‘s origins came as the doctrine’s future is uncertain. In the nearly four decades since the Supreme Court established the precedent — which in that case benefited President Reagan’s deregulatory agenda and hindered NRDC’s opposition — the arguments for and against the doctrine have swapped sides.

Conservative legal scholars lead the charge against Chevron today, saying it violates the Administrative Procedure Act and the constitutional separation of powers by giving too much power to unaccountable agency officials.

Metzger, the Columbia professor, noted that judicial opinions have cited the precedent some 15,000 times, but that the Supreme Court has shied away from it in recent years — not relying on Chevron since 2014.

In March, the high court considered a case targeting a related doctrine, Auer, which calls for deference to agency interpretations of their own rules. The court hasn’t yet issued a decision in the case, but many experts say it likely will ultimately embrace limits on the standard.

Lawyers and scholars speaking on a panel at yesterday’s event said Chevron might face a similar fate, but not for a while. Though a few current justices are on record favoring Chevron‘s downfall, Elwood noted that Chief Justice John Roberts might favor slow-walking such a big change to administrative law.