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The Final Auer: How Weakening the Deference Doctrine May Impact Environmental Law

October 2015

Citation: 45 ELR 10954

Issue: 10

Author: Erica J. Shell

Throughout the past decade, the United States Supreme Court has questioned the constitutionality of affording deference to a federal agency’s interpretation of its own regulations. This level of deference originated with the Court’s 1945 opinion in Bowles v. Seminole Rock & Sand Co., and in 1997, the Court reinvigorated Seminole Rock in Auer v. Robbins. The impact of “Auer deference” has continued to grow with the expansion of the administrative state. But the intersection of a Supreme Court in flux with a presidential administration that has proposed major new environmental regulations may yet pose an opportunity for the Court to revisit this fundamental doctrine in administrative law.

Erica J. Shell is a 2015 graduate of Wayne State University Law School. While at Wayne State, she served as brief writer and oralist on the ABA National Appellate Advocacy team and the Jeffrey G. Miller Pace National Environmental Moot Court team. At Pace, the Wayne State team was awarded the David Sive Award for best overall brief. Ms. Shell also served as the Managing Editor of Wayne State’s Journal of Law in Society. This Article won Honorable Mention in the 2014-2015 Beveridge & Diamond Constitutional Environmental Law Writing Competition.

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