Environmental lawyers have much to learn from a close study of the March 2000 U.S. Supreme Court decision in Food & Drug Administration v. Brown & Williamson Tobacco Corp.¹ So much of the U.S. regulatory apparatus controlling environmental pollution is premised on administrative agency power to fill gaps in statutory language, that the 5-4 majority's dramatic slalom turn away from prior Supreme Court norms of deference² bears close attention.

This Dialogue suggests that the tobacco industry's successful tactic in defending cigarettes may be exhibited in future industrial challenges to U.S. Environmental Protection Agency (EPA) regulatory initiatives. Silence, disharmony, and desuetude by Congress prevailed in the Supreme Court tobacco case as a barrier to gap-filling regulations by administrative agencies. Gap filling is a classic pattern of regulatory response to the vagaries of congressional indecision. The March 2000 decision was not an about-face change from Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,³ the landmark 1984 decision on judicial deference, but it can be described as a slalom turn that twists the "cigarette corollary" into anti-deference in some instances.