Chapter 3
Cite as 20 Energy & Min. L. Inst. ch. 3 (2000)
Deference to Agency Interpretations:
Abdication to Ambiguity
James A. Lastowka
Arthur G. Sapper1
McDermott, Will & Emery
Washington, D.C.
Synopsis
§ 3.01.
§ 3.02.
§ 3.03.
§ 3.04.
1
Introduction and Synopsis ................................................ 104
Chevron, Its Ancestors and Progeny ................................ 104
[1] — Chevron’s Place in Administrative Law ................... 104
[2] — How Chevron Arose and What It Held ..................... 105
Deference to Administration Construction
of Regulations: The Convergence of Seminole Rock
with Chevron ...................................................................... 107
To Whom Is Deference Owed? The Case of Independent
Adjudicative Agencies ....................................................... 108
[1] — The Occupational Safety and Health
Review Commission ................................................. 108
[2] — The Benefits Review Board ...................................... 109
[3] — The Federal Mine Safety and Health
Review Commission ................................................. 110
[a] — General ........................................................... 110
[b] — Early Decisions – No Deference
to MSHA ........................................................ 110
[c] — The Federal Appellate Courts:
Defer to MSHA .............................................. 111
[d] — The Right Rule for the Mine Safety Act? ...... 111
[i] — The Language, Legislative History and
Background of the Mine Safety Act ... 112
[ii] — Case Law Development ...................... 116
[iii] — Was Energy West Correctly
Decided? .............................................. 117
James A. Lastowka and Arthur G. Sapper are partners in the OSHA/MSHA Practice
Group of McDermott, Will & Emery. Mr. Lastowka is a former commissioner and general
counsel of the Federal Mine Safety and Health Review Commission. Mr. Sapper is the
former deputy general counsel of the Occupational Safety and Health Review Commission
and a former professor of occupational safety and health law.
§ 3.01
§ 3.05.
§ 3.06.
§ 3.07.
§ 3.08.
§ 3.01.
ENERGY & MINERAL LAW INSTITUTE
The Effects of Chevron-Style Deference .......................... 118
[1] — The Agency Decides ................................................. 118
[2] — Adverse Effects on the Administrative
Law System ............................................................... 118
Winning Under Chevron ................................................... 119
[1] — Chevron Step One: Showing that Intent
Is “Clear” .................................................................. 119
[2] —Chevron Step Two: Showing that an Interpretation
Is “Unreasonable” ..................................................... 121
[3] — Trumping Deference ................................................. 122
[4] — Avoiding Chevron ..................................................... 123
The Future of Chevron ...................................................... 124
Was Chevron Wrongly Decided? ...................................... 126
[1] — Chevron Is Inconsistent with the A.P.A. ................... 126
[2] — Chevron Is Inconsistent with Democratic
and Constitutional Norms ......................................... 127
Introduction and Synopsis.
This chapter discusses when, and to what extent, a court or adjudicative
agency must defer to interpretations of statutes or regulations by an
enforcement agency such as the Mine Safety and Health Administration
(MSHA). Its principal focus is the effects and the correctness of the
Supreme Court’s decision in Chevron U.S.A. Inc. v. Natural Resources
Defense Council.2
The chapter also discusses the course of judicial decisions on deference
under such statutes as the Federal Mine Safety and Health Act and the
Occupational Safety and Health Act, with an emphasis on the former. It
suggests practical steps that lawyers for mine operators can take to avoid
judicial deference, and analyzes the possible future of Chevron-style
deference.
§ 3.02.
Chevron, Its Ancestors and Progeny.
[1] — Chevron’s Place in Administrative Law.
In Chevron, the U.S. Supreme Court appeared to resolve a long-noted3
inconsistency between two lines of case law. In one line of cases, the
2
Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).
3
See K. Davis, Administrative Law Treatise § 29.16 (2d ed. 1984). See, e.g., Pittston
Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 49 (2d Cir. 1976)(per Friendly, J.)(“there
are two lines of Supreme Court decisions on this subject which are analytically in
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DEFERENCE TO AGENCY INTERPRETATIONS
§ 3.02
Supreme Court adopted the interpretation it thought correct after giving
the agency’s interpretation “weight”; the degree of that weight varied with
such factors as the technical complexity of the issue, and the agency’s
expertise.4 For example, in Skidmore v. Swift & Co.,5 the Court stated
that while the agency’s interpretations were “not controlling,” they did
“constitute a body of experience and informed judgment to which courts
. . . may properly resort for guidance.” “The weight” given to the agency’s
interpretation, the Court stated “will depend upon the thoroughness evident
in its consideration, . . . [and] its consistency with earlier and later
pronouncements. . . . ”
In the other line of cases, the Supreme Court held that “the reviewing
court’s function is limited” and that it must accept an agency interpretation
with “a reasonable basis in law;”6 other cases in this line upheld the agency
interpretation “unless there are compelling indications that it is wrong.”7
Inasmuch as the criterion for interpretation under this line of cases is the
reasonableness of the agency’s interpretation, not its correctness in a court’s
eyes, this line of cases appeared to bar courts from interpreting statutes
de novo.
Chevron resolved the disharmony by choosing the second approach.
[2] — How Chevron Arose and What It Held.
An environmental group sought the invalidation of an EPA legislative
regulation that permitted an industrial plant to offset increased emissions
within an imaginary surrounding “bubble” with decreases in other
emissions. The regulation embodied EPA’s interpretation of the Clean
Air Act.8 The Natural Resources Defense Council (NRDC) claimed that
conflict”), aff’d sub nom. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977).
See Mark Seidenfeld, “A Syncopated Chevron: Emphasizing Reasoned Decisionmaking
In Reviewing Agency Interpretations Of Statutes,” 73 Tex. L. Rev. 83, 93 (1994)(referring
to pre-Chevron doctrine as “schizophrenic”).
4 E.g., United States v. Swank, 451 U.S. 571 (1981); Morton v. Ruiz, 415 U.S. 199,
236-37 (1974); Packard Motor Car Co. v. NLRB, 330 U.S. 485, 492-93 (1947). See
generally K. Davis and R. Pierce, Administrative Law Treatise § 3.1, p. 108 (3d ed. 1994).
5 Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
6 E.g., NLRB v. Hearst Publications, Inc., 322 U.S. 111, 130-31 (1944).
7
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969).
8
42 U.S.C. § 7401 et seq.
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§ 3.02
ENERGY & MINERAL LAW INSTITUTE
the regulation was unlawful because the statute required all emissions to
be reduced, whether offset or not. The United States Court of Appeals for
the D.C. Circuit, then widely known for freely second-guessing agency
interpretations,9 struck down the interpretation as contrary to its own
decisions.10
The Supreme Court reversed. Framing the issue as whether EPA had
adopted a “reasonable construction,” it stated:
When a court reviews an agency’s construction of the statute
which it administers, it is confronted with two questions.
First, always, is the question whether Congress has directly
spoken to the precise question at issue. If the intent of
Congress is clear, that is the end of the matter; for the court,
as well as the agency, must give effect to the unambiguously
expressed intent of Congress. If, however, the court
determines Congress has not directly addressed the precise
question at issue, the court does not simply impose its own
construction on the statute, as would be necessary in the
absence of an administrative interpretation. Rather, if the
statute is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency’s
answer is based on a permissible construction of the
statute.11
9
E.g., National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir.
1973)(freely and broadly opining, mostly in dictum, on meaning of statute in judicial
review of agency’s first attempt to construe important but amorphous statutory provision).
10 Natural Resources Defense Council v. Gorsuch, 685 F.2d 718 (D.C. Cir. 1982), rev’d
sub nom. Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).
11 467 U.S. 837 at 842-43. The Court found that EPA’s view was “permissible” because
it was “reasonable.” Id. at 844. The Court also cautioned that “federal judges – who have
no constituency – have a duty to respect legitimate policy choices made by those who
do.” Id. at 866. Chevron’s core assumptions were that interpretation was a matter of
policy, not law, and that Congress expressly or implicitly delegated to agencies the
authority to make policy decisions through interpretation. E.g., Adams Fruit Co. v. Barrett,
494 U. S. 638, 649 (1990)(“A precondition to deference under Chevron is a congressional
delegation of administrative authority”).
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DEFERENCE TO AGENCY INTERPRETATIONS
§ 3.03
The federal courts view Chevron as requiring the following two-step
analysis:12
Chevron Step One: Is the intent of Congress clear when
considering the language, structure, legislative history and
purpose of the statute in light of the usual rules of statutory
construction?
Chevron Step Two: If congressional intent is unclear, is the
agency’s interpretation reasonable?
The implications of this deference scheme for the litigating attorney,
as well as its future and correctness, are discussed in Sections 3.05-3.08
below. First, however, two other aspects of deference – the convergence
of the deference tests for statutes and regulations, and the role of deference
under statutes with independent administrative adjudicators – are
discussed.
§ 3.03.
Deference to Administration Construction of
Regulations: The Convergence of Seminole Rock
with Chevron.
The Supreme Court had long articulated what appeared to be a different
test for deference to agency interpretations of regulations. In Bowles v.
Seminole Rock & Sand Co.,13 the Court stated that it owed an agency’s
interpretation of its own regulation “controlling weight unless it is plainly
erroneous or inconsistent with the regulation.”
This deference test for regulations later converged with, and appeared
to anticipate, the Chevron test for statutes. For example, in Ehlert v. United
States,14 the Court held that where “the meaning of [regulatory] language
is not free from doubt” (which is equivalent to not “clear” under Step One
of Chevron), the agency’s interpretation prevails so long as it is
12 E.g., National Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479
(1998); National Mining Ass’n v. MSHA, 116 F.3d 520, 526 (D.C. Cir. 1997); Nuclear
Information Resource Service v. NRC, 969 F.2d 1169, 1173 (D.C. Cir. 1992).
13 Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945).
14 Ehlert v. United States, 402 U.S. 99, 105 (1971).
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“reasonable” (which is identical to Step Two of Chevron).15 Today, courts
articulate the two tests in identical terms. For example, in Reich v. General
Motors Corp., the Sixth Circuit stated that, “This court accords substantial
deference to the Secretary’s construction of an OSHA standard if it is
ambiguous and the Secretary’s interpretation of it is reasonable”16 – a
test identical to Chevron’s. Hence, except in one context, here again statutes
and regulations are not distinguished.
§ 3.04.
To Whom Is Deference Owed? The Case of
Independent Adjudicative Agencies.
The federal courts have forced independent adjudicative agencies to
apply the same deference rule that they are required to apply under Chevron
and Seminole Rock – that is, to defer to interpretations of enforcement
agencies.
[1] — The Occupational Safety and Health Review
Commission.
The Occupational Safety and Health Review Commission (OSHRC)
is a three-member agency, wholly independent of the U.S. Labor
Department and its Occupational Safety and Health Administration
(OSHA). OSHRC adjudicates the validity of citations issued by OSHA
under the Occupational Safety and Health Act (“OSH Act”).17 Before
1991, the circuits were split over whether courts should defer to OSHA’s
or OSHRC’s interpretation of an OSHA standard.18 In Martin v. OSHRC
15 See also Martin v. OSHRC (CF&I Steel Corp.), 499 U.S. 144 (1991)(same).
16 Reich v. General Motors Corp., 89 F.3d 313, 315 (6th Cir. 1996).
17 29 U.S.C. §§ 651-678.
18 Compare Brock v. Williams Enterprises of Georgia, Inc., 832 F.2d 567, 569-570
(11th Cir. 1987)(deference to Secretary); United Steelworkers of America v. Schuylkill
Metals Corp., 828 F.2d 314, 319 (5th Cir. 1987)(same); and Donovan v. A. Amorello &
Sons, Inc., 761 F.2d 61, 65-66 (1st Cir. 1985)(same) with Brock v. Cardinal Industries,
Inc., 828 F.2d 373, 376, n. 4 (6th 1987)(deference to Commission); Brock v. Bechtel
Power Corp., 803 F.2d 999, 1000-1001 (9th Cir. 1986)(same); and Marshall v. Western
Electric, Inc., 565 F.2d 240, 244 (2d Cir. 1977)(same).
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§ 3.04
(CF&I Steel Corp.),19 a unanimous Supreme Court held that deference
was owed to OSHA’s reasonable interpretation rather than OSHRC’s.
The OSHRC has held that CF&I applies only to construction of OSHA
standards, and not to construction of the OSH Act.20 However, several
federal courts have, without analyzing the issue and apparently unaware
that the Commission has drawn a distinction between the Act and
standards, applied CF&I to the OSH Act.21
Interestingly, CF&I Steel failed to address a passage in the legislative
history of the OSH Act that speaks directly to the deference issue and
casts doubt on the correctness of the decision. In 1970, passage of the
OSH Act was threatened because a Democratic bill would have placed
administrative adjudication of citations in the Labor Department. To permit
passage, Republican Senator Javits proposed a compromise – the
establishment of the Occupational Safety and Health Review Commission.
During his successful advocacy of that compromise, Senate Javits assured
the Senate that the Commission would be “an autonomous, independent
commission which, without regard to the Secretary, can find for or against
him on the basis of individual complaints.” (Emphasis added.) It was this
assurance that then led the Senate to adopt the amendment and later pass
the OSH Act.22
[2] — The Benefits Review Board.
The Benefits Review Board (BRB) is an autonomous agency, but
within the U.S. Department of Labor, that adjudicates cases under the
19 Martin v. OSHRC (CF&I Steel Corp.), 499 U.S. 144 (1991).
20 Arcadian Corp. v. OSHC, 17 O.S.H.C. 1345, 1352 (OSHRC 1995), aff ’d on another
ground, 110 F.3d 1192 (5th Cir. 1997).
21 See Reich v. D.M. Sabia Co., 90 F.3d 854, 860 (3d Cir. 1996); Anthony Crane Rental,
Inc. v. Reich, 70 F.3d 1298, 1302 (D.C. Cir. 1995).
22 Senate Subcommittee on Labor, Legislative History of the Occupational Safety and
Health Act of 1970, 92d Cong., 1st Sess. at 193-94, 200-03, 380-94, 463, 470, 479 (Comm.
Print. 1971); ABA Treatise Ch. 2, Part II.A, p. 42; see also Judson MacLaury, “The Job
Safety Law of 1970: Its Passage Was Perilous,” Monthly Lab. Rev. 22-23 (Mar.
1981)(recounting struggle for independent adjudicator). The brief filed by CF&I Steel
(it was then in bankruptcy) did not bring this statement to the attention of the Supreme
Court.
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Black Lung Benefits Act,23 and the Longshore and Harbor Workers’
Compensation Act,24 The Supreme Court has held that deference is owed
to interpretations of the Director of the Office of Workers’ Compensation
Programs, rather than to the BRB.25
[3] — The Federal Mine Safety and Health Review
Commission.
[a] — General.
The Federal Mine Safety and Health Review Commission (FMSHRC)
is a five-member agency, wholly independent of the U.S. Labor
Department and its Mine Safety and Health Administration (MSHA). It
adjudicates the validity of MSHA citations and orders, and decides
discrimination and certain compensation cases under the Federal Mine
Safety and Health Act of 1977 (Mine Safety Act).26
[b] — Early Decisions – No Deference to MSHA.
The FMSHRC’s early decisions emphatically declared that MSHA
interpretations were not entitled to “controlling weight.”27 In Helen
Mining, MSHA relied on a brief statement (quoted in full below) in a
Senate committee report that required the courts and FMSHRC to give
“weight” to MSHA’s view. The FMSHRC held that this meant only
“weight,” no more:
In accordance with this expression of congressional intent,
we will accord special weight to the Secretary’s view of the
1977 Act and the standards and regulations he adopts . . . .
His views will not be treated like those of any other party,
23 30 U.S.C. § 901 et seq.
24 33 U.S.C. § 901 et seq.
25 See Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n.18 (1980);
Sharondale Corp. v. Ross, 42 F.3d 993, 997-98 (6th Cir. 1994).
26 30 U.S.C. § 801 et seq.
27 Helen Mining Co., 1 F.M.S.H.R.C. 1796, 1799 (1979), rev’d on another ground sub
nom. Mine Workers v. FMSHRC, 671 F.2d 615 (D.C. Cir.), cert. denied, 459 U.S. 927
(1982)(FMSHRC has “authority to decide questions of both law and policy . . .
independently”); Old Ben Coal Co., 1 F.M.S.H.R.C. 1480, 1483-1485 (1979)(Congress
empowered FMSHRC to decide policy questions and “play a major role”), aff ’d without
consideration of point, No. 79-2367 (D.C. Cir. Dec. 9, 1980).
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DEFERENCE TO AGENCY INTERPRETATIONS
§ 3.04
but will be treated with extra attention and respect. Although
this weight may vary with the question before the
Commission, especially where the Secretary has gained
some special practical knowledge or experience through his
inspection, investigation, prosecution, or standards-making
activities, it will not rise to the inappropriate level the
Secretary has sought here.28
[c] — The Federal Appellate Courts: Defer to
MSHA.
The federal courts, however, have held that they (and, implicitly,
FMSHRC) owe deference under Chevron to the statutory and regulatory
interpretations of MSHA, rather than to those of the FMSHRC.29 The
FMSHRC has now come to follow or acquiesce in the application of
Chevron deference.30
[d] — The Right Rule for the Mine Safety Act?
The text, legislative history and very purpose of the provisions of the
Mine Safety Act establishing the FMSHRC show that its early holdings
were correct, and that its recent application of Chevron is inconsistent
with the role Congress expected it to play.
28 1 F.M.S.H.R.C. at 1801; see also Mine Workers v. FMSHRC (Helen Mining Co.),
671 F.2d 615, 635 (D.C. Cir.)(Tamm, J., dissenting)(“standard seems about right, albeit
a bit amorphous”), cert. denied, 459 U.S. 927 (1982).
29 E.g., Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463-64 (D.C. Cir. 1994).
See also Secretary of Labor ex. rel. Wamsley v. Mutual Mining, Inc., 80 F.3d 110 (4th
Cir. 1996), citing Energy West. Energy West relied on Secretary of Labor ex rel. Bushnell
v. Cannelton Industries, Inc., 867 F.2d 1432, 1435 (D.C. Cir. 1989). That case was
preceded by Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 537 & n.2 (D.C. Cir.
1986); Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1552 (D.C. Cir. 1984); Brock ex
rel. Williams v. Peabody Coal Co., 822 F.2d 1134, 1146 n.41 (D.C. Cir. 1987). None of
these prior cases, including Cannelton, had closely examined the deference question.
30 E.g., Thunder Basin Coal Co., 18 F.M.S.H.R.C. 582, 584 (April 1996)(applying
Chevron); Keystone Coal Mining Corp., 16 F.M.S.H.R.C. 6 (1994)(same); but see Cyprus
Cumberland Resources Corp., 20 F.M.S.H.R.C. 285 (No. PENN 989-15-R 1998)(ALJ
Feldman)(relying on Helen and language in the more recent Energy West Mining Co. v.
FMSHRC, 111 F.3d 900 (D.C. Cir. 1997)), review ordered, April 24, 1998.
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[i] — The Language, Legislative History
and Background of the Mine Safety
Act.
The text of the Mine Safety Act not only does not require deference
by FMSHRC to MSHA, but it expressly and repeatedly confers a policy
role on FMSHRC – a role inconsistent with deference to MSHA. Section
113(d)(2) of the Mine Safety Act states several times that the FMSHRC
is to review questions of “Commission policy” and “novel questions of
policy,” as well as questions of “law.”31 Congress even authorized
FMSHRC to review cases when no party has sought review.32
The legislative background and history of the Mine Safety Act bear
out the implications of Congress’ language. The predecessor statute, the
31 Section 113, 30 U.S.C. § 823, states in part:
The Federal Mine Safety and Health Review Commission
Sec. 113. (a) The Federal Mine Safety and Health Review Commission is
hereby established. The Commission shall consist of five members . . . .”
***
(d) . . .
(2) The Commission shall prescribe rules of procedure for its review of the
decisions of administrative law judges in cases under this Act which shall
meet the following standards for review:
(A) . . .
(ii) Petitions for discretionary review shall be filed only upon one or more
of the following grounds:
(I) A finding or conclusion of material fact is not supported by substantial
evidence.
(II) A necessary legal conclusion is erroneous.
(III) The decision is contrary to law or to the duly promulgated rules or
decisions of the Commission.
(IV) A substantial question of law, policy or discretion is involved.
***
(B) At any time within 30 days after the issuance of a decision of an
administrative law judge, the Commission may in its discretion . . . order
the case before it for review but only upon the ground that the decision may
be contrary to law or Commission policy, or that a novel question of policy
has been presented. The Commission shall state in such order the specific
issue of law, Commission policy, or novel question of policy involved . . . .
(Emphasis added.)
32 Section 113(d)(2)(B) of the Mine Safety Act, 30 U.S.C. § 823(d)(2)(B). Congress
also required it to oversee and approve all penalty settlements that MSHA proposes to
enter into. Section 110(k), 30 U.S.C. § 820(k).
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DEFERENCE TO AGENCY INTERPRETATIONS
§ 3.04
Federal Coal Mine Health and Safety Act of 1969,33 had given all
administrative functions to the Secretary of the Interior, who had
established an enforcement arm, the Mining Enforcement Safety
Administration (MESA), and an adjudication arm, the Interior Board of
Mine Operation Appeals (IBMA). When the IBMA decided a case, it
spoke for the Department of the Interior; hence, MESA could not appeal
IBMA decisions to the courts. The IBMA reviewed questions of law de
novo, without deference to MESA,34 and its views were given deference
by courts.35 The IBMA acted so independently that enforcement branch
officials several times tried to convince the Interior Secretary to use his
supervisory powers to control major IBMA decisions.36 Because it was
an Interior Department body, the IBMA held itself bound by these exercises
of Secretarial power.37
Whether to retain this structure caused disagreement in Congress when
substantial amendment of the mine safety and health statutes was
considered in 1977. The House Committee on Education and Labor
reported, and later the full House, passed a bill that would have transferred
all administrative authority from the Interior to the Labor Department but
would have retained the Coal Act’s placement of all administrative
33 Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 801 et seq.
(1976)(“the Coal Act”).
34 See, e.g., Eastern Associated Coal Corp., 7 I.B.M.A. 133, 1976-77 CCH OSHD
¶ 21,373 (1976)(en banc); 1 Coal Law & Regulation, ¶ 1.04[9][b][iii], p. 1-49 (T. Biddle
ed. 1990)(“Of course, the Board could independently decide questions of law.”). MESA
was later transferred to the Labor Department and became MSHA after the 1977 Mine
Safety Act was passed; the IBMA’s functions were transferred to the newly-created
FMSHRC.
35 Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976)(IBMA’s view “must
be given some significant weight”).
36 See 43 C.F.R. ¶4.5 (1977)(speaking of Secretary’s “supervisory” powers); Secretarial
Order of January 19, 1977, staying effect of Eastern Associated Coal, and staying
proceedings in nine other cases, described in Biddle, ¶ 1.04[9][b][iv], p. 1-50 & n.118
(describing Secretarial order).
37 Republic Steel Corp., 5 I.B.M.A. 306, 309-311, 1975-76 CCH OSHD ¶ 20,233
(1975)(Board bound by a Secretarial order, which “expressed the policy of the
Department”), rev’d on other grounds, 581 F.2d 868 (D.C. Cir. 1978); Cowin & Co.,
6 I.B.M.A. 351, 365, 1976-77 CCH OSHD ¶ 21,171 (1976), remanded on other grounds,
No. 76-1980 (D.C. Cir. May 26, 1978).
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authority in one agency.38 It rejected a proposal to establish an independent
body with policy-review authority.39
In the Senate, however, Democratic Senator Harrison Williams,
chairman of the Senate Labor Subcommittee, introduced a bill establishing
an independent body with policy-review authority.40 High-ranking Labor
Department officials, including Assistant Secretary Arnold Packer and
Solicitor Carin Clauss, testified before the subcommittee, opposing that
feature, urging the establishment of a body within the Labor Department;41
they even offered to draft new legislative language implementing their
suggestion.42 The offer was rejected, for the Senate committee retained
the provision establishing the Commission.43 The bill was passed by the
Senate,44 and the provision on the Commission was accepted in conference
committee.45
The Senate committee stated the reasons for the establishment of an
independent review body – “an independent Commission is essential to
provide administrative adjudication which preserves due process and
instills much more confidence in the program.”46 That it expected the
38 H.R. 4287, 95th Cong., 1st Sess. (1977)(as reported and as passed), reprinted in
Senate Subcommittee on Labor, Legislative History of the Federal Mine Safety and Health
Act of 1977, 95th Cong., 2d Sess., 266 and 1250-1275 (1978)(“Leg. Hist”). See also H.R.
Rep. No. 312, 95th Cong., 1st Sess. 21 (1977), Leg. Hist. 357, 377 (noting continuation
of Coal Act administrative review scheme).
39 H.R. 4287, 95th Cong., 1st Sess. § 114, pp. 55-60 (1977)(as introduced), Leg.
Hist. at 188, 242-47.
40 S. 717, 95th Cong., 1st Sess. § 114, pp. 55-61 (1977)(as introduced), Leg. Hist. at
110, 164-170.
41 Federal Mine Safety and Health Amendments Act of 1977, Hearings Before the Senate
Subcommittee on Labor, 95th Cong., 1st Sess. 386-87 and 391 (1977).
42 Id. at 390-91. Ms. Clauss noted that her staff attorneys were already drafting such
language.
43 S. 717, 95th Cong., 1st Sess. § 114, pp. 132-137 (1977)(as reported), Leg. Hist. at
433, 546-569.
44 S. 717, 95th Cong., 1st Sess. § 114 (1977)(as passed), Leg. Hist. at 1109, 1125-1126.
45 S. Conf. Rep. No. 461, 95th Cong., 1st Sess. 60-61 (1977), Leg. Hist. at 1279, 13381339.
46 S. Rep. No. 181, 95th Cong., 1st Sess. 47 (1977), Leg. Hist. at 589, 635.
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§ 3.04
Commission to play a policy role is indicated by its assurance to the Senate
that Commissioners need not be “technicians,” but could include persons
with “administrative experience” or “practical experience” in mine
safety.47
The Senate report also stated:
Since the Secretary of Labor is charged with responsibility
for implementing this Act, it is the intention of the
Committee, consistent with generally accepted precedent,
that the Secretary’s interpretations of the law and regulations
shall be given weight by both the Commission and the
courts.48
This statement does not, however, bear the weight that later came to
be placed on it. All it expressed was the Senate committee’s wish that the
Secretary’s views be given “weight.” It did not require that “controlling
weight” or “great weight” be given, or that the Secretary’s interpretation
control as long as it was reasonable. At most, and read in the context of
the assignment of a policy role to the Commission, the statement indicates
that the Commission not ignore the Secretary’s view but weigh it along
with all other pertinent considerations.
Shortly after the passage of the Mine Act, the first five Commissioners
were appointed by the President and confirmed by the Senate. During
their confirmation hearings, the chief architect of the Mine Act, Senator
Williams, shed considerable light on the prominent and active role that
Congress intended for the Commission:
One of the essential reforms of the mine safety program is
the creation of an independent Federal Mine Safety and
Health Review Commission charged with the responsibility
for assessing civil penalties for violations of safety or health
standards, for reviewing the enforcement activities of the
Secretary of Labor, and for protecting miners against
unlawful discrimination.
47 S. Rep. No. 181, at 47, Leg. Hist. at 635.
48 S. Rep. No. 181, at 49, Leg. Hist. at 637.
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It is our hope that in fulfilling its responsibilities under the Act,
the Commission will provide just and expeditious resolution
of disputes, and will develop a uniform and comprehensive
interpretation of the law. Such actions will provide guidance to
the Secretary in enforcing the [Act] and to the mining industry
and miners in appreciating their responsibilities under the law.
When the Secretary and mine operators understand precisely
what the law expects of them, they can do what is necessary to
protect our Nation’s miners and to improve productivity in a
safe and healthful working environment.49
Thus, MSHA was to look to the Commission for a “uniform and
comprehensive interpretation of the law.”
[ii] — Case Law Development.
The Supreme Court evaluated the role of the Commission in Thunder
Basin Coal Co. v. Reich.50 The Court found that the Commission was
“established as an independent-review body to ‘develop a uniform and
comprehensive interpretation’ of the Mine Act,”51 cited Congress’s
authorization to the Commission to review policy questions,52 and stated
that the Commission could bring “agency expertise . . . to bear” on statutory
questions under the Mine Safety Act.53 It even held that the Commission,
unlike the typical administrative agency, was uniquely situated to
adjudicate the constitutionality of its enabling legislation.54 Thunder Basin
appeared to presage the end of Chevron-style deference under the Mine
Safety Act.55
49 Hearing on the Nomination of Members of the Federal Mine Safety and Health
Review Commission before the Senate Committee on Human Resources, 95th Cong.,
2d Sess. 1 (1978).
50 Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 209-11 (1994).
51 Id. at 214, quoting Senator Williams’ remarks at the nomination hearings.
52 510 U.S. at 208 n.9.
53 Id. at 214-15.
54 Id. at 215.
55 In an interview published at 1 Mine Safety and Health News 240 (May 20, 1994),
FMSHRC Chairman Mary L. Jordan stated that Thunder Basin “noted there are some
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§ 3.04
In Energy West, however, the D.C. Circuit reiterated that the FMSHRC
must defer to MSHA. Its sole rationale appeared to be that the reference
in Section 113 to “policy” referred only to policies governing relations
between the Commission and its judges.56
[iii] — Was Energy West Correctly Decided?
The holding in Energy West trivializes Section 113 and Congress’
reasons for establishing the FMSHRC. Congress did not need to specify
that the FMSHRC could review policy disagreements between it and its
judges. The FMSHRC may reverse its judges when they disagree on policy
matters with or without this provision, just as the OSHRC regularly does
without such language in the OSH Act. Congress spelled out the
FMSHRC’s policy role because, by the time the Mine Safety Act was
passed, the role and powers of the OSHRC had already become a point of
contention and friction between OSHA and OSHRC.57 Congress evidently
felt a need to be clearer about the FMSHRC’s powers.
The ironic effect of applying Chevron-style deference under the Mine
Safety Act is that the FMSHRC is even more subservient to MSHA than
its predecessor, the IBMA, was to MSHA’s predecessor, MESA. As noted
above, the IBMA interpreted the 1969 Coal Safety Act and MESA
standards wholly independently of MESA, and it was the IBMA to whom
courts deferred. Congress established the FMSHRC because it was
dissatisfied with attempts by the Interior Secretary to control major Board
decisions, not to enhance the position of the enforcing agency.
differences [between the Mine Act and the OSH Act] and the Commission may have
more of a policy role [than the OSHRC]”). In a paper published in Eastern Mineral Law
Foundation, Special Institute on Mine Safety and Health pp. 6.07-6.08 (1994), the
FMSHRC then-General Counsel L. Joseph Ferrara stated that Thunder Basin “pointedly”
emphasized the policy provisions in Section 113(d)(2). “In light of Thunder Basin, . . .
no fair assessment of Commission judicial power can ignore or trivialize the agency’s
policy jurisdiction in section 113.” Thunder Basin, he noted, stated that the Commission
was to use its “expertise” to interpret the Mine Act and the Secretary’s regulations, and
that the Commission “was established as an independent review body to develop a uniform
and comprehensive interpretation of the Mine Act.” (internal quotation marks omitted.)
56 Energy West, 40 F.3d at 464.
57 E.g., Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1261-62 (4th Cir. 1974).
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§ 3.05.
The Effects of Chevron-Style Deference.
While Chevron seemed to be just the latest articulation of a longevolving deference principle, its precise holding was revolutionary.
Chevron did far more than elevate or recast the importance of an agency’s
interpretation.
[1] — The Agency Decides.
Chevron made the agency interpretation the lodestar of analysis,
thereby putting an end to de novo examination by courts of regulatory
statutes and administrative regulations. Under Chevron, once a certain
condition is met (ambiguity of the statute or regulation), the agency
interpretation prevails so long as it is merely “reasonable,” even if the
court or adjudicative agency would have adopted a different interpretation
on de novo examination.
This approach greatly increases the power of the agency. As a practical
matter, it is frequently easy for an agency to make a colorable claim of
ambiguity or of reasonableness, and courts are naturally reluctant to call
agency decisions “unreasonable.” They are mindful that they lack the
policy role and expertise that agencies have, and that Chevron so
emphatically discouraged judicial boldness. It is very expensive to oppose
agency claims, and the probability of success is low enough to discourage
all but the most stalwart or well-heeled appellant. Tax-supported agencies
do not pay their lawyers by the hour and can far better afford to litigate
and re-litigate interpretation issues circuit by circuit. Nor is it an answer
that courts can always overturn “unreasonable” agency decisions. While
courts and adjudicative agencies are free to overturn interpretations that
are “unreasonable,” it is very difficult and expensive to prove that an agency
is unreasonable.
[2] — Adverse Effects on the Administrative Law
System.
Chevron has also had untoward effects on the administrative law
system. It encourages Congress to duck hard questions by writing
ambiguous statutes and leaving their resolution to agencies without
political accountability. It threatens to undermine the integrity of the
rulemaking process. Inasmuch as ambiguity strengthens the agency’s
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litigating position, agency rulemakers have a perverse incentive to put
off difficult decisions by writing ambiguous regulations and then resolving
the problem through the back door of interpretation.58 Major policy
questions can now be resolved without the discipline imposed by the
making of factual records, examination of public comments, and
application of statutory criteria, such as feasibility. Important policies can
even be set by low-level officials, for the CF&I Steel decision requires
courts to defer to reasonable interpretations embodied in mere citations.
All this has led agency officials to treat with impatience regulated
citizens who rely on the words of statutes and regulations. The phenomenon
brings to mind the observation, “There is nothing so calculated to make
officials and other men disdainful of the rights of their fellow men, as the
absence of accountability.”59
§ 3.06.
Winning Under Chevron.
[1] — Chevron Step One: Showing that Intent Is “Clear.”
The typical private party in litigation against an agency tries mightily
to win at Chevron Step One – i.e., to show that congressional intent is
clear. The reason is that Step Two – whether the agency interpretation is
“unreasonable” – is thought difficult to prove, so policy-laden as to
discourage judicial intervention, and so amorphous as to be unreliable.
The practitioner’s first step must be to examine carefully the evidence
of intent – the language of the statute or regulation, its legislative or
regulatory history (particularly a regulation’s preamble), its structure, and
contemporaneous interpretation by the agency or by Congress. Look
carefully at dictionary definitions of crucial words. Courts will strike down
agency interpretations inconsistent with the common meanings of words.60
58
Thomas Jefferson University v. Shalala, 512 U.S. 504, 525 (1994)(Thomas, J.,
dissenting); John F. Manning, “Constitutional Structure and Judicial Deference to Agency
Interpretations of Agency Rules,” 96 Colum. L. Rev. 612, 662 (1996).
59 Leon Green, “Public Destruction of Private Reputation – A Remedy?” 38 Minn. L.
Rev. 567, 572-73 (1954), quoted in David W. Robertson, “The Legal Philosophy of Leon
Green,” 56 Tex. L. Rev. 393, 436 (1978).
60 E.g., Reich v. General Motors Corp., 89 F.3d 313 (6th Cir. 1996)(agency interpretation
of “unexpected” inconsistent with its plain meaning); courts have lately begun to more
attentively apply dictionary definitions. E.g., MCI Telecommunications v. American Tel.
& Tel., 512 U.S. 218, 225-28 (1994)(discussing dictionary definitions at great length).
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Context and statutory structure are also important. As one court has
observed, “a term is not ambiguous, even though the term may be
susceptible to different interpretations, when ‘all but one of the meanings
is ordinarily eliminated by context.’”61
The practitioner should also look to unconventional sources of original
intent, not just legislative history. For example:
Congressional Budget Office estimates of a bill’s expected cost.
These estimates can and have been used to show that Congress
intended the bill to have a more modest effect than the agency
interpretation suggests.62
Regulatory impact analyses required by the Regulatory
Flexibility Act,63 and Executive Order 12291 (1981). These
analyses can and have been used to show that the regulation
was originally intended to impose a more modest duty than the
current agency interpretation would impose.64
Agency estimates of paperwork costs submitted to the Office
of Management and Budget when requesting approval of
regulations under the Paperwork Reduction Act.65 One
61 Reich v. Arcadian Corp., 110 F.3d 1192, 1196 (5th Cir. 1997)(quoting Deal v. United
States, 508 U.S. 129, 131-32 (1993)); see also Nat’l Credit Union Admin. v. First Nat’l
Bank & Trust Co., 522 U.S. 479 (1998). “In ascertaining whether the agency’s
interpretation is a permissible construction of the language, a court must look to the
structure and language of the statute as a whole.” National R.R. Passenger Corp. v.
Boston & Maine Corp., 503 U.S. 407, 417 (1992).
62 E.g., Gay v. Sullivan, 966 F.2d 1124, 1129 (7th Cir. 1992)(rejecting interpretation
that would create “enormous discrepancy” with CBO cost estimates); Staub v. OPM,
927 F.2d 571, 573 (Fed. Cir. 1991)(CBO assumptions make intent clear); United States
v. Simpson, 885 F.2d 36, 43 (3d Cir. 1989), cert. denied, 495 U.S. 958 (1990)(using
CBO estimates); Malloy v. Eichler, 860 F.2d 1179, 1187 (3d Cir. 1988)(considering
CBO estimates in detail); Thompson v. Kennickell, 797 F.2d 1015, 1025 (D.C. Cir. ___),
cert. denied, 480 U.S. 905 (1986)(omission of cost from CBO estimate a “significant
indication”). Cf. Sutton v. United Air Lines, Inc., No. 97-1943 (June 22, 1999)(relying
on cost estimates in preamble to statute).
63 5 U.S.C. § 601 et seq.
64 McNally Constr. & Tunneling Co., 16 BNA OSHC 1879, 1885 (O.S.H.R.C.
1994)(regulatory impact analysis), aff ’d and approved, 71 F.3d 208 (6th Cir. 1995).
65 44 U.S.C. §§ 3501-3520.
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adjudicative agency has already held these materials relevant
to interpretation of a regulation.66
Contemporaneous interpretations in agency briefs defending
the validity of the regulation. Such briefs often try to deflect
invalidity challenges by modestly stating the duties imposed
by the regulation.
Although Chevron states that original intent is to be determined using
the usual rules of construction,67 the practitioner should employ these
rules carefully and realistically, for courts are often wary of them.68
[2] —Chevron Step Two: Showing that an Interpretation
Is “Unreasonable.”
Even if a statute or regulation is ambiguous, the practitioner should
attempt to show that the agency interpretation is “unreasonable.” Grounds
for doing so include that the interpretation –
• Lies outside the “range of available ambiguity.”69
• Reads words out of the text.70
• Is not an interpretation at all; i.e., the agency makes no
pretense or attempt to derive its interpretation from the
66 Interlocutory order of the OSHRC in General Motors Corp., No. 91-2834 (Aug. 5,
1997)(“part of the legislative history of” the regulation and may be officially noticed).
67 Chevron, 467 U.S. at 843 n.9.
68 E.g., National Mining Ass’n v. MSHA, 116 F.3d 520, 526 (D.C. Cir. 1997)(declining
to apply rule of construction to override deference).
69 John Hancock Mut. Life Ins. Co. v. Harris Trust, 510 U.S. 86, 109 (1993)(i.e., is not
supported by any of the dictionary or common senses of the words used). Agencies often
reason in briefs that, because the statute or regulation is ambiguous, any interpretation
reasonable from a policy standpoint must be upheld. As the John Hancock decision shows,
that is incorrect. The interpretation must still fall within the legitimate range of meanings
of the words used.
70 Reich v. General Motors Corp., 89 F.3d 313, 315-16 (6th Cir. 1996). “A statute must,
if possible, be construed in such fashion that every word has some operative effect.”
United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992); United States v. RodriguezRios, 14 F.3d 1040, 1044 (5th Cir. 1994)(en banc).
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words of the statute or regulation, or tries to invent new
policies that the drafter did not intend when the standard
was adopted.71
• Is not adequately explained, or represents an unexplained
or inadequately explained change in interpretation.72
• Is not the interpretation of the agency but of its appellate
counsel.73
[3] — Trumping Deference.
Deference can be trumped by rules of construction that are
constitutionally based. Thus, an agency interpretation, no matter how
“reasonable,” will not be applied if it is so unheralded as to violate the
requirement of fair notice imposed by the Due Process Clause of the Fifth
Amendment to the Constitution.74
A related doctrine is that regulations or statutes under which a penalty
can be imposed are subject to the rule of narrow (or “strict”) construction.75
71 See Atchison, Topeka & Santa Fe Ry. v. Pena, 44 F.3d 437, 446 (7th Cir. 1994)(en
banc)(Easterbrook, J., concurring)(interpretation must offer court “a view into the
understanding of the original interpretative community”). “[I]f permitted to adopt
unforeseen interpretations, agencies could constructively amend their regulations while
evading their duty to engage in notice and comment procedures.” Exportal Ltda. v. United
States, 902 F.2d 45, 48 (D.C. Cir. 1990)(emphasis in the original); see generally Russell
L. Weaver, “Judicial Interpretations of Administrative Regulations: The Deference Rule,”
45 U. Pitt. L. Rev. 587, 615 (1984).
72 Leeco v. Hays, 965 F.2d 1081, 1085 (D.C. Cir. 1992); Acme Die Casting v. NLRB,
26 F.3d 162, 166 (D.C. Cir. 1994)(court must be able to discern rationale underlying
agency’s construction).
73 Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988); Woodhill Corp. v.
FEMA, 168 F.3d 1025, 1027-28 (7th Cir. 1999).
74 General Electric Co. v. EPA, 53 F.3d 1324, 1328-34 (D.C. Cir. 1995)(upholding
agency interpretation under Chevron but striking down enforcement action because agency
failed to give fair advance notice of its interpretation).
75 See Kropp Forge Co. v. Secretary of Labor, 657 F.2d 119, 122 (7th Cir. 1981);
Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976); see also
Commissioner v. Acker, 361 U.S. 87, 91 (1959)(civil tax penalty); Haberern v. Kaupp
Vascular Surgeons Pension Plan, 24 F.3d 1491, 1505 (3d Cir. 1994)(civil ERISA penalty),
cert. denied, 513 U.S. 1149 (1995); Fisher v. Metropolitan Life Ins. Co., 895 F.2d 1073,
1077 (5th Cir. 1990); First Nat’l Bank v. Dep’t of Treasury, 911 F.2d 57, 65 (8th Cir.
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That rule should override the Chevron deference rule because it is
constitutionally required, while Chevron deference is not. A more
conventional way of articulating this argument is to say that the court
must apply the rule of narrow construction as one of the rules of
construction to be applied in Chevron Step One. Similarly, the rule that
courts will construe statutes so as to avoid serious constitutional questions
may be used to trump Chevron’s deference rule.76
[4] — Avoiding Chevron.
There are some classes of questions to which deference may not apply.
For example, deference does not apply to factual questions resolved by
an independent adjudicative agency.77 An enforcement agency’s view of
penalty assessment issues will not receive deference if Congress specially
committed the penalty assessment function to an independent adjudicatory
agency.78
Deference does not apply to questions to which the agency was not
implicitly delegated authority by Congress.79 Hence, deference does not
apply to generally applicable statutes because Congress has not delegated
to any agency special authority to construe them.80 Examples are the Equal
1990)(banking law); Gold Kist, Inc. v. Dep’t of Agriculture, 741 F.2d 344, 348 (11th
Cir. 1984)(agriculture law).
76 See Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council,
485 U.S. 568, 575 (1988)(application of rule pretermitted deference issue).
77 Secretary of Labor v. OSHRC (Milliken & Co.) 947 F.2d 1483, 1484-85 (11th Cir.
1991).
78 Reich v. Arcadian Corp., 110 F.3d 1192, 1199 (5th Cir. 1997)(court declines to
interpret statute to permit penalty as to each affected employee, for doing so would
“usurp the Commission’s statutorily ordained power to assess “all” penalties”); Hern
Iron Works, 16 BNA OSHC at 1622 (rejecting OSHA claim for deference in penalty
assessment); cf. Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994)(Federal Mine
Safety and Health Review Commission has authority to assess penalties de novo).
79 See LineMaster Switch Corp. v. EPA, 938 F.2d 1299, 1303 (D.C. Cir. 1991)(no
deference to EPA over consequences of its failure to timely act; no congressional intention
to delegate to EPA “the authority to devise a remedy for its own untimeliness”); Tucson
Medical Center v. Sullivan, 947 F.2d 971, 981 (D.C. Cir. 1991)(no deference to regulation
interpreting statute on awards by court of judgment interest).
80 E.g., Adams Fruit Co. v. Barrett, 494 U. S. 6389 (1990); Professional Reactor
Operator Society v. NRC, 939 F.2d 1047, 1051 (D.C. Cir. 1991)(citing cases); Anderson
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Access to Justice Act,81 the Administrative Procedure Act,82 and the
Freedom of Information Act.83 Similarly, an interpretation is not entitled
to Chevron-style deference if it is based on acquiescence in a court
decision84 or general common law principles,85 rather than the agency’s
expertise in a particular field, or where the agency has not been delegated
legislative rulemaking authority.86 Deference does not apply where the
agency is financially interested or has a “personal” interested in the
outcome.87 There is also some authority for the proposition that deference
is not owed with respect to questions about the agency’s “jurisdiction.”88
§ 3.07.
The Future of Chevron.
Attorneys in litigation against an agency should not rule out the
prospect that the Supreme Court will someday overrule or recast Chevron.
For a time, it seemed that some members of the Supreme Court might not
have fully subscribed to, or understood the import of Chevron’s broad
language. In INS v. Cardoza-Fonseca,89 several justices briefly reverted
v. HHS, 907 F.2d 936, 951 n. 19 (10th Cir. 1990)(no one agency entrusted to enforce
FOIA).
81 5 U.S.C. § 504.
82 5 U.S.C. § 551 et seq.
83 5 U.S.C. § 552.
84 Atchison, Topeka & Santa Fe Ry., 44 F.3d at 442 (en banc).
85 Misson Group Kansas, Inc. v. Riley, 146 F.3d 775, 780 n.3 (10th Cir. 1998)(not entitled
to “great” deference), citing Jacarilla Apache Tribe v. FERC, 578 F.2d 289, 292-93 (10th
Cir. 1978).
86 Atchison, Topeka & Santa Fe Ry., 44 F.3d at 441-42 (using pre-Chevron “weight”
approach for mere “interpretive rules”).
87 See Transohio Savings Bank v. Director, OTS, 967 F.2d 598, 614 (D.C. Cir. 1992);
Reporters Committee for Freedom of the Press v. Dep’t of Justice, 816 F.2d 730, 734
(D.C. Cir. 1987)(agency attempt to avoid disclosure of government documents).
88 See Herman v. Assoc. Electric Co-op., Inc., 172 F.3d 1078, 1081 (8th Cir. 1999);
California Rural Assistance v. Legal Serv. Corp., 937 F.2d 465, 466-67 (9th Cir.
1991)(Farris, J., concurring)(“If there is any manner of statutory construction in which
the judiciary should not defer to an administrative agency, it is in defining the parameters
of the agency’s authority under the statute.”); Air Courier Conference v. Postal Serv.,
959 F.2d 1213, 1225-27 (3d Cir. 1992)(Becker, J., concurring). Contra, Mississippi Power
& Light Co. v. Mississippi, 487 U.S. 354, 377-383 (1988)(Scalia, J., concurring).
89 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).
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to pre-Chevron views, stating that a certain question “is a pure question
of statutory construction for the courts to decide.”90 As one scholar has
observed, “[t]here is reason to believe the participating Justices did not
regard Chevron as a departure from prior law.”91 At least one member of
the Court (Justice Breyer) has strongly implied that Chevron has been
over-read and has suggested that it be recast in terms that echo the “weight”
approach of Skidmore and Helen Mining.92 That article was recently cited
by the Court with approval.93
Chevron deserves re-examination for several reasons. The Court did
not discuss the APA provision that bears on the scope of judicial review,94
which, as we show below, is inconsistent with Chevron.95 Much of
Chevron’s language is dictum. Much of it concerns judicial deference to
legislative rules, to which courts had given great deference even before
90 Id. at 446-48.
91 Thomas W. Merrill, “Judicial Deference to Executive Precedent,” 101 Yale. L.J. 969,
976 (1992).
92 Stephen Breyer, “Judicial Review of Questions of Law and Policy,” 38 Admin. L.
Rev. 363, 381 (1986): The Court’s case law “overstates the degree of deference due the
agency” and “suggests a greater abdication of judicial responsibility . . . than seems wise
. . .”).
93 The Supreme Court in Babbitt v. Sweet Home Chapter, 515 U.S. 687, 703-04 (1995),
stated:
We need not decide whether the statutory definition of “take” compels the
Secretary’s interpretation of “harm,” because our conclusions that Congress
did not unambiguously manifest its intent to adopt respondents’ view and
that the Secretary’s interpretation is reasonable suffice to decide this case.
See generally Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984). The latitude the ESA gives the Secretary in enforcing the statute, together
with the degree of regulatory expertise necessary to its enforcement, establishes that we
owe some degree of deference to the Secretary’s reasonable interpretation. See Breyer,
“Judicial Review of Questions of Law and Policy,” 38 Admin. L. Rev. 363, 373 (1986).
94 5 U.S.C. § 706 (entitled “Scope of review”).
95 “The Chevron court did not trouble itself to consider the APA or any other statutory
authority . . .” John F. Duffy, “Administrative Common Law in Judicial Review,” 77 Tex.
L. Rev. 113, 189 (1998). “[T]he Court irresponsibly made no effort to explain how its
decision could stand alongside [APA § 706]. Indeed, it made no mention of [§] 706
whatsoever.” Robert B. Anthony, “Symposium on the 50th Anniversary of the APA: The
Supreme Court and The APA: Sometimes They Just Don’t Get It,” 10 Admin. L.J. Am. 1,
24 (1996).
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Chevron; yet, it has been applied without critical examination to far more
informal interpretations. Although no penalty or fine was sought to be
imposed in Chevron, it has been applied to penalty cases without any
consideration of the soundness of that application. The agency
interpretation in Chevron also expanded the range of private action, while
subsequent agency interpretations upheld under Chevron have restricted
freedom without consideration of the appropriateness of that result.
§ 3.08
Was Chevron Wrongly Decided?
[1] — Chevron Is Inconsistent with the APA.
Chevron is inconsistent with the Administrative Procedure Act, which
states, in a provision entitled “Scope of review,” that “the reviewing court
shall decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the
terms of an agency action.”96
96 5 U.S.C. § 706. The provision states:
Sec. 706.
Scope of review
To the extent necessary to decision and when presented, the reviewing court
shall decide all relevant questions of law, interpret constitutional and statutory
provisions, and determine the meaning or applicability of the terms of an
agency action. The reviewing court shall (1) compel agency action unlawfully withheld or unreasonably delayed;
and
(2) hold unlawful and set aside agency action, findings, and conclusions
found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556
and 557 of this title or otherwise reviewed on the record of an agency hearing
provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de
novo by the reviewing court. In making the foregoing determinations, the
court shall review the whole record or those parts of it cited by a party, and
due account shall be taken of the rule of prejudicial error.
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As noted above, Chevron never considered that provision. The
provision’s legislative history makes crystal clear that Congress intended
courts to construe statutes “independently.”97 As Professor Davis has
observed, the provision unmistakably requires a court to review legal
questions de novo and follow its judgment on the meaning of a statute,
not the agency’s.98
[2] — Chevron Is Inconsistent with Democratic and
Constitutional Norms.
Many have observed that Chevron is also inconsistent with a
fundamental tenet of our constitutional order – that “[i]t is emphatically
the province and duty of the judicial department to say what the law is.”99
It is commonly said that Chevron transferred power from the courts
to the agencies. But that is only half the truth. Chevron also transferred
power to the agencies from the citizenry. Chevron reversed a fundamental
but largely unspoken premise of statutory interpretation – that if a statute
or regulation is ambiguous, it is the citizen who is to receive the benefit of
the doubt. After Chevron, the agency receives the benefit of the doubt.
Many will argue that this is not a valid concern, for even after Chevron,
courts stand ready to bar agency interpretations that deprive the citizen of
fair notice under the Due Process Clause of the Fifth Amendment. They
may well point, for example, to the decision of the D.C. Circuit in General
Electric Co. v. EPA,100 discussed in Section 3.06[3] above.
But fair notice is not the only purpose of the legislative and regulatory
processes. Even the most crystal-clear law lacks democratic legitimacy if
97 See Duffy, note 53, 77 Tex. L. Rev. at 193 et seq., citing legislative history in detail.
98 K. Davis, Administrative Law of the Eighties Ch. 29 (1989)(Supplement to 2d. ed.
of treatise)(criticizing Chevron at length as, inter alia, “repulsive,” exceeding the
constitutional power of the Court and violating a “fundamental of democratic
government”).
99 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)(Marshall, C.J.). Under
Chevron, the agency declares what the law is, and the courts review only whether the
agency’s view is “unreasonable.” As one scholar has observed, “[Chevron] has become a
kind of Marbury, or counter-Marbury, for the administrative state.” Cass R. Sunstein,
“Law and Administration After Chevron,” 90 Colum. L. Rev. 2071, 2075 (1990).
100 General Electric Co. v. EPA, 53 F.3d 1324, 1328-34 (D.C. Cir. 1995).
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it does not represent the will of the majority. In a democratic society, a
citizen is entitled to expect that obligations not be imposed upon him except
according to democratic norms – by elected legislators, or by rulemakers
following democratically-prescribed rulemaking procedures and criteria.
Just as such laws and regulations may not be passed in a way that does
violence to democratic norms, neither may ambiguities in them be resolved
in a way that does violence to democratic norms. Thus, interpretations of a
statute must be aimed at divining the intent of the democratically-elected
representatives who passed it, and interpretation of a regulation must be
aimed at divining the intent of the rulemakers who adopted it. A rule of
construction that ignores Congress’s or the agency’s intention, or requires
citizens to respect any other intention, is illegitimate.
Yet, that is just what Chevron does. Chevron requires the citizen to
obey agency interpretations that make no pretense of representing the
outcome of a legislative or quasi-legislative process. An interpretation
prevails under Chevron if it is merely one of a number of possible intentions
that Congress or the rulemaker might have intended. Indeed, Chevron
deference is at its strongest when a statute’s text, structure, purpose and
legislative history leave a court with only a hazy idea of what Congress or
the rulemaker intended. This is contrary to democratic norms.
Free societies have a different remedy for resolving such uncertainties:
choose freedom; give the citizen the benefit of the doubt. If a court cannot
say that elected members of Congress, or rulemakers hemmed in by the
rulemaking process, intended to diminish the citizenry’s freedom or
property, do not permit agencies to do so through the back door of
interpretation.
The Chevron court had no need to grapple with this principle, for
Chevron upheld a rare agency interpretation that expanded the freedom of
the citizenry. It is time to grapple with that issue now. There should no
longer be a gray zone around every statute and regulation in which regulators
can lawlessly deprive the citizenry of their freedom. The Chevron test should
be re-cast as giving only weight to an agency’s interpretation, and only as
much weight as the agency’s knowledge and expertise justifies.101 If, after
101 Many scholars agree with this view. E.g., Sunstein, p. 17 above; Anthony, note 53
above. 10 Admin. L.J. at 11 (“Special consideration, yes. Controlling force, no.”).
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applying the usual rules of statutory construction, including the giving of
whatever weight the agency interpretation deserves on the facts, the court
believes on de novo examination that the Congress or the rulemaker had a
certain intent, then the court must give effect to that view. But even then,
if the court lacks confidence that the agency’s view represents the law’s
or regulation’s original intent, then the benefit of that doubt must go to
the citizenry, not the agency.
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