Preserve, protect, and defend. Preserve, protect, and defend. The Constitution of the United States. The Constitution of the United States. So help you God. So help me God. May I congratulate you, sir. Chevron was decided in 1984, which was kind
of midway into the Reagan administration. The Reagan administration, um, came into office
with a, uh, very strong focus on deregulation of, uh, um, the economy. Reagan comes in, you got a Democratic Senate,
but he wins by a pretty healthy margin. This is one of his four platforms. The incoming Reagan administration reversed
some regulations that governed basically application of, uh, air pollution requirements under the
Clean Air Act to a new plant and equipment being built in factories across the country. It was, we thought, a major step backwards
in protecting peoples' health and air quality, and so we went to court. But Chevron starts out as this puny little
precedent and then grows to be a major landmark decision and-and that's quite unusual. It's hard to think of too many parallels to
that in jurisprudence. It's absolutely the case that Justice Stevens
did not intend for his opinion in the Chevron decision to create a landmark. This debate about Chevron deference isn't
academic, it has a real-world impact. Chevron deference empowers agencies to act,
uh, to play a law-making role, uh, and it encourages courts to defer to federal agency
actions, and can have profound effects, uh, on our separation of powers, uh, on the role
between Congress, courts, and the President and the federal agencies that the President
oversees, uh, in ways that I think the founders would've never imagined. The Chevron doctrine comes from Chevron USA
versus Natural Resources Defense Council, which was a case from 1984 involving an EPA
regulation interpreting the Clean Air Act. I would say that it was intended when decided
by Justice Stevens, who was a liberal, uh, to be, um, discretionary, somewhat loose cannon
of construction, uh, to deal with very close questions of administrative law where the
precise, uh, understanding of a possibly ambiguous statute, uh, could produce two different outcomes
and the notion was the expert agency, which has dealt with the statute, uh, for decades
maybe, deserves a little- a little headway. The court announced in the Chevron opinion
what we now refer to as a two-step standard. The two steps of Chevron is first you ask
whether the statute's ambiguous. Let's apply the ordinary tools of statutory
interpretation and the text, the canons, to figure out whether Congress has spoken clearly
on the question. If they hadn't, then you move to step two,
the idea being that if Congress doesn't speak clearly, they intended for the agency to fill
in the holes in the statute, not the court. If the statute is ambiguous, then the court
in Chevron said that reviewing courts ought to defer to the agency's reasonable interpretation
of that statute, essentially recognizing that sometimes statutes are susceptible of more
than one reasonable interpretation and that choosing between those reasonable interpretations
is a matter of policy choice best left to the agency rather than to the courts. If the case is decided at step one, the agency
wins about 40% of the time. If you get to step two, if the court finds
the statute ambiguous, the agency wins almost 95% of the time. Uh, and so if you're trying to figure out
the impact of Chevron, of the deference itself, it is definitely true that once you get to
step two, the agency's gonna almost always win. This is the United States Supreme Court. It is the highest court in the land. In this decade, it will be called upon to
make decisions about our environment, which may well change the face of the nation. The growth of the economy in the 50s and the
60s had, um, not been accompanied by any, uh, significant pollution control laws. The factory pollution, the car pollution was
choking the cities and the suburbs where most people lived. The Clean Air Act passed with almost unanimous
support and it had very strong advocates in the Republican party in '70, in '77, and even
in 1990. And then we realized that industry, you know,
was getting more and more organized in lobbying the Congress and lobbying the administration
and we needed to have a presence in-in the administrative process and to go toe to toe
with the agency's people and with the industry's people on tactical matters as well as the
legal matters. In the Chevron case, the administration just
basically wanted to win the case. They were interested in adopting the bubble
concept. Uh, they thought it gave more flexibility
to industry. So all the arguments in the case were really,
you know, is the bubble okay or is the bubble not okay? And no one was really talking about standards
of review or how courts should review agency decisions in a systematic way. The Bubble Concept was the phrase used by
industry representatives and the Reagan administration to describe how they wanted to interpret the
term stationary source as defined in the Clean Air Act. Environmentalists argued that the Bubble Concept
was contrary to the plain meaning of stationary source found in the law. The CAA put strict limitations on emissions
from stationary sources of air pollutions such as power plants or smelters and defined
a stationary source as any building, structure, facility, or installation which emits or may
emit any air pollutant. The dispute arose from ambiguity over what
constituted a source, whether it refers to each pollution-emitting apparatus within a
plant or to the whole plant. The Bubble Concept referred to the whole plant
definition. Imagine putting a bubble over an entire plant
and only looking at changes in pollution levels coming out a hole in the top. This was favorable to industry representatives
because it meant that as long as their net pollution was either lower or unchanged when
they made modifications to or installed any new apparatus, they would not have to comply
with any of the limitations for individual stationary sources. The bubble first comes up in the DC circuit
in a case called ASARCO. The EPA, this was the Carter administration
EPA, had been lobbied by, uh, various industries including the smelter industry of which ASARCO
was part, to adopt the bubble policy because they wanted some more regulatory flexibility
in how the new source provisions would apply, uh, to their industry. Along comes the Reagan administration and
they change the definition of a source in such a way as to exempt 90% of the stuff that
used to be subject to these requirements and we thought that didn't make any sense. Paul Bator was in charge of overseeing the
briefing and had to deal our argument for the government in the Chevron case. David Doniger, uh, a seasoned lawyer for the
NRDC argued on the other side. Bator approached the case, was very much just
to figure out how to win this case. The government was in favor of the bubble
concept and they, it was controversial. The NRDC hated the bubble concept. So, that was the big focus on the-on the case
and the argument. There were seven justices in front of me. I went second. Paul Bator argued the case and he argued in
broad generalizations, we think the government's position is, and basically throwing around
the weight of the federal government. There are some aspects of the Chevron opinion
which are clearly, um, sort of stimulated or framed by the Bator brief. Particularly, Bator made this argument in
his brief that, uh, delegations, uh, from Congress from an agency could be both explicit
and implicit. The main focus of the Bator brief was really
federalism. The argument was that the bubble concept would
be- would just give the states flexibility to decide whether or not they wanted to use
this approach or not, uh, as opposed to mandating a federal approach one way or the other. And when I got a chance to argue, I went back
to the basics. The statute defines a source in these four
terms. It's intending to capture the pollution in
these three specific ways. When someone builds a new boiler or blast
furnace, the effect of the regulation is to exempt 90% of all that activity from these
pollution controls. How could Congress have intended to, uh, build
this elaborate structure of requirements for a source, which are very specific, and then
allow the government to redefine the underlying word to exempt almost all of that equipment
from those rules? The statute was kind of convoluted and very
unclear and the legislative history was also convoluted and unclear and so Doniger had
a tough time of arguing that the bubble was unlawful. The administration won the Chevron case unanimously
by a vote of six to nothing. When the case finally came to be decided,
there were only six justices, which is a bare quorum. Justice White almost never got to assign a
majority opinion because he was fourth in seniority, but the very afternoon after the
conference he sent a memo around assigning the case to Justice Stevens to write the majority
opinion. This was a very unusual assignment. The notes in the Blackman file indicate that,
uh, nobody paid much attention to what Justice Stevens had written, but Justice White, to
again reinforce his decision to assign it to Justice Stevens, responded almost immediately
with a strong I join your opinion, no comments about it. And then interestingly, uh, the other justices
just fell in line very quickly, including Justice Brennan who had voted to affirm rather
than reverse. And Chief Justice Berger who had voted, tentatively
at least, to affirm rather than reverse. And so everybody kind of quickly joined the
Stevens opinion. There's no evidence of any significant revisions. So, I think in a way it was kind of like this
case just went under the radar. When I asked about it, he always responded
this was just a restatement of the law, this was nothing new and he was not trying to change
anything in any significant way. But, if you just focus on the beginning passage
about the two steps and the suggestion that, uh, they're implied delegations to agencies
to interpret statutes that sort of gives them this authority greater than the court's authority
to interpret an ambiguous statute. And the concluding section when he talks about
agency's are responsible to the President, who's answerable to the people through elections
and courts don't have any constituencies, he said those two sections of the opinion
really were quite innovative and I think we're- we're taken for all they're worth, quite transformative. And so those two parts of the opinion are
now what appears in the casebooks and what everybody thinks of as the Chevron doctrine,
but it was really, at the time, to the justices it looked like just another case involving
an agency issue, highly technical. Some- some scholars call Chevron an accidental
landmark, uh, because it wasn't something the court was anticipating to kind of do a
sea change in administrative law, but the way he wrote the opinion was very formulaic,
very rules-based, and the lower courts, in particular, the DC circuit, ran with that
decision and created a much more sweeping principle of administrative law than I think
Justice Stevens ever would've imagined would come out of that decision. I think the DC circuit loved it because it
simplified the way it organized opinions about this. I think the government loved it because it
simplified the way you briefed these cases. The Justice Department, of course, once it
was given the gift of Chevron, sort of tried to use it for all it was worth, uh, and that
continued through the, uh, first Bush administration, uh, as well. I can only speak for how we felt in the administration,
which was oh good, they're making it clear they're not gonna block Reagan's attempt to
roll back certain aspects of the regulatory inheritance so long as he does it right. But then of course times change, you get the
Clinton administration and so forth and they get different administrations and so whoever's
in power sort of likes Chevron because it appears like it's gonna do more to uphold
their decisions than the old approach would. And who is out of power tends to be more skeptical
of Chevron because they think the courts are probably gonna be more likely to be where
the win is for the agencies. But agencies began to manufacture more and
more sort of, I'm not sure what you'd call them, fake ambiguities, but certainly forced
ambiguities, which they took advantage of to just dramatically extend their interpretative
authority over just untold gobs of-of law covering the entire sweep of the, uh, American
government. It's not about in Chevron doctrine, it's about
the underlying policies. And in periods of time when Republicans have
been in power, especially now, you see, uh, very determined wholesale efforts to roll
back the law and this is a neutral principle that we ought to be able to use no matter
who's in charge. And the remedy, if Congress doesn't like outcomes,
is to change laws, not to turn a blind way when the President and his agency heads just
file it. So, the way I see it, there are two different
layers to the current debate. One has to do with the ongoing and long-standing
debate over how Chevron operates in terms of its two steps and also under what circumstances
Chevron ought to provide the evaluative standard. That's not a new debate, we've been having
that debate for a long time. The justices aren't in agreement as to how
you evaluate those questions and we just continue on. The other part of the debate really isn't
about Chevron deference at all. Rather, it's about deference to agencies altogether. But the attacks on Chevron started during
the second term of the Obama administration, like the real strong attacks. If I had to guess, part of it was there was
a dissatisfaction with how far, how much Chevron had grown. This was not Justice Stevens Chevron anymore,
it was a much more deferential, rule-based approach where agencies seldom lost. We're comfortable constraining regressive
administrations under the Chevron doctrine. I wish that, uh, some of the Chevron hawks
out there had been as comfortable living with constraining the actions of the Obama administration
under the same tests. If Congress does its job as the founders envisioned
under the separation of powers doctrine, then 90% of the problems of Chevron go away because
the ambiguities aren't there and if there's an ambiguity, the courts are supposed to resolve
the ambiguity, not the agency, and the courts are not supposed to bow to the agency. The Clean Air Act has saved tens of thousands
of lives per year, but through regulations that EPA had to issue. If they didn't have that assignment and they
didn't have that leeway from the courts, it wouldn't happen. The skies would be a lot dirtier and tens
of thousands of people would be dying every year who are not. Could be you and me. If we decide to get rid of Chevron, just overrule
it, what's gonna replace Chevron, you know? Are we gonna go back to this multi-factorial
thing that, uh, seemed to create a lot of judicial discretion that Justice Scalia didn't
like or what else would we substitute for Chevron? Uh, that's a very big question. Sometimes debates over the nuances of Chevron's
two steps or the scope of Chevron's domain can begin to resemble the debate over how
many angels can fit on the head of a pin. It's easy to get lost in the arcana of those
debates. We should never lose sight, though, of the overarching
rationale behind Chevron because that ought to be our touchstone in applying Chevron rather
than the arcana of the nuances.
