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Volume 25, Issue 3 — March 1995


The Supreme Court, EPA, and Chevron: The Uncertain Status of Deference to Agency Interpretations of Statutes

by Donald W. Stever, Eliza Dolin, and Edward Normand

Editors' Summary: The U.S. Supreme Court's 1984 landmark decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council (Chevron) set out a two-step test for determining when to accord deference to federal agency interpretations of statutory provisions, holding that where a statute is ambiguous, the judiciary must defer to any reasonable interpretation offered by the agency charged with administering the statute. This Article examines City of Chicago v. Environmental Defense Fund and PUD No. 1 of Jefferson County v. Washington Department of Ecology, two 1994 cases in which the Supreme Court had to decide whether the U.S. Environmental Protection Agency's interpretations of environmental statutes were entitled to deference under Chevron. The authors point out that in both cases, the Supreme Court's application of the Chevron test focused primarily on whether the statute at issue was ambiguous, thus avoiding the second part of the Chevron inquiry. They discuss the "plain-meaning" approach to determining whether a statute is ambiguous, and the problems that approach faces with respect to increasingly detailed and complex environmental statutes. The authors conclude that the plain-meaning approach to statutory interpretation may have the effect of putting the courts, rather than the federal agencies, in the position of shaping environmental policy, ultimately changing Chevron from a doctrine of deference into a doctrine of antideference.


Citizen Suits: The Teeth in Public Participation

by Adam Babich

The courts have long recognized that Congress enacted environmental citizen-suit provisions to abate threats to the environment, supplement government enforcement, encourage government agencies to enforce the laws more effectively, and expand opportunities for public participation.1 In practice, however, citizen suits serve an even more fundamental purpose. This Comment argues that opportunities for citizen litigation enhance the legitimacy of administrative decision-making. By giving the public a practical way of seeking recourse when unelected agency officials decline to enforce or implement environmental laws, citizen-suit provisions strengthen the democratic character of implementation of environmental policy.

The Comment begins with a background discussion of Congress' purpose in enacting citizen-suit provisions. Next, the Comment discusses the need for public participation in environmental decisionmaking and argues that citizen-suit provisions play an important role in making true public participation possible. The Comment then briefly reviews environmental litigation under the common-law tort system, discussing some of the reasons the common law alone is inadequate to provide practical recourse for people faced with many typical types of pollution problems. Next, the Comment examines environmental citizen-suit provisions in terms of six factors that are essential to the success of citizen suits in providing the public with practical recourse from agencies' failure to enforce or otherwise implement environmental laws. The Comment then briefly reviews the mechanics of filing a citizen suit. It concludes that far from merely supplementing government enforcement, citizen-suit provisions are central to the U.S. system for environmental protection.


Would the Superfund Response Cost Allocation Procedures Considered by the 103d Congress Reduce Transaction Costs?

by George Van Cleve

One of the most prominent issues in the Congressional debate over reauthorization of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) has been how to reduce "transaction costs" while at the same time fairly and expeditiously resolving liability disputes. This Dialogue asks: Would the allocation procedures proposed in last year's Superfund reauthorization bills meet those sometimes conflicting goals?