Deference isn’t an ‘endangered species’ — DOJ’s Cruden

By Robin Bravender | 11/11/2015 12:54 PM EST

The Obama administration’s top environmental attorney yesterday said he doesn’t expect the courts to stop deferring to agencies’ expertise when it comes to implementing the law.

In light of some high-profile opinions — most notably a Supreme Court ruling upholding the Obama administration’s health care law — some legal experts have mused that the leeway given to agencies could be in jeopardy. Lawyers and scholars have questioned whether the so-called Chevron doctrine will remain intact.

But John Cruden, assistant attorney general for the Justice Department’s Environment and Natural Resources Division, said yesterday that "Chevron is not — in environmental terms — a dead or endangered species."

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The Chevron doctrine was named for the landmark 1984 Supreme Court case Chevron v. Natural Resources Defense Council. That opinion held that if Congress hasn’t clearly addressed an issue, courts must defer to agencies’ reasonable interpretations of the law.

The high court’s opinion earlier this year in the health care case, King v. Burwell, sent shock waves through the legal world, in part because of the court’s handling of Chevron. Chief Justice John Roberts, in his opinion for the court, wrote that Chevron didn’t apply because the health care case is "extraordinary" and centers on a question of "deep ‘economic and political significance.’"

The Chevron doctrine, Roberts said, need not be initiated if it appears the ambiguity at issue was not one that Congress intended for the acting agency to resolve. Some legal experts have said the health care ruling’s handling of Chevron could provide an opening to attack the Obama administration’s Clean Power Plan, a rule that cracks down on power plants’ greenhouse gas emissions (Greenwire, June 25).

"The decision not to apply Chevron has spawned an endless series of comments, ranging from outrage to predictions of the future demise of the deference concept, and has led many to poke around in a number of decisions from the past decade to find bits and pieces of evidence to shore up their dire predictions," Cruden said yesterday at a lecture in Washington, D.C., hosted by the District of Columbia Bar.

He said he believes the Chevron case was correctly decided by a unanimous court in 1984. "Administrative agencies can develop deep expertise and can create an infrastructure to be responsive to regulatory concerns. Courts, at least in their traditional function, cannot be responsive because the job of the court is to decide the law," Cruden said.

He added that Chevron "will and should be the guiding principle of judicial deference in the future."

Cruden pointed to two other recent decisions out of the Supreme Court: Michigan v. EPA and Utility Air Regulatory Group v. EPA, clean air cases focused on rules with sweeping impacts and high costs that were decided under the Chevron framework.

"The court is continuing to apply the Chevron framework even to matters it views as having great regulatory and economic consequence," Cruden said.

He noted that his comments were general and did not represent the position of the United States with respect to any pending lawsuits.

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