| The Supreme Court, EPA, and Chevron: The Uncertain Status of Deference to Agency Interpretations of Statutes |
| Donald W. Stever, Eliza A. Dolin, and Edward Normand |
| Editor's 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. |
| Mr. Stever is a partner in Dewey Ballantine's Environmental Practice Group. Ms. Dolin is a senior associate in Dewey Ballantine's Environmental Practice Group. Mr. Normand was a summer associate at Dewey Ballantine and is currently in law school at the University of Pennsylvania. He expects to receive his J.D. in 1995. |
| [25 ELR 10127]
"Of course, one judge's plain meaning may be another's ambiguity."1 |
| In 1994, the Supreme Court decided two cases involving the issue of judicial deference to U.S. Environmental Protection Agency (EPA) interpretations of a statutory provision. In City of Chicago v. Environmental Defense Fund,2 the Court held that § 3001(i) of the Resource Conservation and Recovery Act (RCRA)3 does not exempt from regulation as hazardous waste municipal waste combustion (MWC) ash that is sufficiently toxic to qualify as hazardous waste.4 The Court did not consider the several interpretations of the statute offered by EPA, which had reached the opposite conclusion.5 |
| In PUD No. 1 of Jefferson County v. Washington Department of Ecology (PUD No. 1),6 the Court held that Washington's state environmental agency did not exceed its authority to impose conditions on certifications under § 401 of the Federal Water Pollution Control Act (FWPCA)7 when it imposed minimum stream flow requirements on a hydroelectric project.8 The Court noted that its conclusion was consistent with EPA's regulations under § 401.9 The Court concluded that EPA's reasonable interpretation was entitled to deference.10 |
| [25 ELR 10128]
The apparent inconsistency in the Court's approach to EPA's statutory interpretations in City of Chicago and PUD No. 1 appears to be the product of a struggle within the Court over the appropriate way to apply the test set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council (Chevron),11 which addressed the question of whether an EPA rule under the Clean Air Act (CAA)12 was entitled to deference. The Chevron rule is facially simple: If Congress has not directly addressed the question at issue, the federal judiciary must defer to an agency's reasonable construction of a statute that it is charged with enforcing.13 Chevron thus sets out a two-step test for deciding whether to defer to agency interpretations. The first step involves a determination of whether the statute at issue is ambiguous. If it is, then the second step requires the court to consider deferring to the agency's interpretation of the statute.14 |
| This Article first points out that the Court's current struggle with applying Chevron focuses not on the degree of deference courts should accord to administrative agencies, but rather on the method of statutory interpretation courts should apply in the first instance. This issue is directly implicated in determining whether a statute is ambiguous. The Article next discusses the "plain meaning" approach to statutory interpretation that Justice Scalia espouses and its impact on step one of the Chevron inquiry. Finally, the Article suggests that the "plain meaning" approach to statutory interpretation that the majority employs in City of Chicago — without regard to other interpretive aids such as legislative history or EPA's historical pronouncements on the subject — may unduly foreshorten the inquiry into whether a particular provision of an environmental statute is ambiguous. Because many federal environmental laws have evolved largely through elaborate amendments that were reactions to EPA policy decisions under earlier versions of statutes, the division between legislation and administrative interpretation has blurred. Thus, in many cases, the practical ambiguity of a statutory provision can be identified only by scrutinizing its legislative genesis and EPA's experience implementing it in the context of the larger statutory and regulatory scheme. |
| Step One of Chevron: The Battleground |
| Traditional Tools of Statutory Construction |
| Chevron holds that a statute is ambiguous unless the court determines that Congress has "directly spoken to the precise question at issue."15 Statutory interpretation should be performed with the "traditional tools of statutory construction."16 A few years after Chevron was decided, then-Judge Scalia wrote: "How clear is clear? It is here . . . that the future battles over acceptance of agency interpretations of law will be fought."17 |
| The battle at step one involves not simply the text of a statute, but also how the text interacts with theories of interpretation. Thus, the first question is: What are the "traditional" tools of statutory construction? The traditional tools the Court has used in applying Chevron include canons of construction and examination of the statute's language, scheme, purposes, and legislative history.18 Commentators have questioned the extent to which each of these tools enables a court to divine Congress' intent.19 More important for present purposes, however, is how the use of these tools has played out in the context of environmental statutes — how clear is clear? |
| A Closer Look at the Application of Chevron in City of Chicago and PUD No. 1 |
| In City of Chicago, the Supreme Court faced the statutory question of whether the Hazardous and Solid Waste Amendments of 198420 transformed into law EPA's "waste stream" exemption for household waste, which EPA promulgated in 1980 under RCRA Subtitle C.21 The regulations had provided that the residue, or ash, that remains after the treatment, or incineration, of household waste would not be subject to regulation as hazardous waste.22 In § 3001(i) of the 1984 Amendments, entitled "Clarification of Household Waste Exclusion," Congress provided that a "resource recovery facility recovering energy from the mass burning of municipal solid waste shall not be deemed to be treating, storing, disposing of, or otherwise managing hazardous wastes for the purposes of regulation. . . ."23 Between 1980 [25 ELR 10129] and 1990, EPA had vacillated several times on the breadth of the household waste exemption. |
| The majority opinion, authored by Justice Scalia, interpreted § 3001(i) by looking at its "plain meaning," paying no heed to the provision's legislative history or to EPA's admittedly conflicting interpretations of it during the previous 10 years. Section 3001(i)'s plain language, the Court reasoned, states simply that a resource recovery facility is not subject to regulation as a facility that treats, stores, disposes of, or manages hazardous wastes.24 The Court further reasoned that (1) the provision does not mention the waste the facility produces; (2) it exempts only the facility, and not the ash, from regulation; and (3) it significantly omits from the list of exempted activities the word "generating," the definition of which encompasses the process of producing the ash.25 |
| The majority's "plain meaning" interpretation of § 3001(i), of course, went beyond a mere reading of the section's language. The Court contrasted § 3001(i)'s current language with the language of the preamble to the 1980 EPA regulations that included the original ash exemption.26 While the preamble was unequivocal about the status of generated ash, the statute itself contained different language.27 The Court acknowledged the "statute's express declaration of national policy — that generated waste 'should be treated, stored or disposed of so as to minimize the present and future threat to human health and the environment.'"28 Given the contrast between the regulatory preamble and the 1984 Amendment, and in light of the statute's express policy, the majority reasoned that the Court could not interpret the statute to permit ash sufficiently toxic to qualify as hazardous to be disposed of in ordinary landfills.29 |
| The majority opinion also relied on the fact that RCRA separately defines each of the four specific terms in the "carefully constructed text of § 3001(i)" — "treating," "storing," "disposing," and "managing."30 The court reasoned that taken as a whole, these terms cover "just about every hazardous waste-related activity except generation."31 The majority opinion emphasized the significance of omitting the word "generating" by pointing out its presence elsewhere in RCRA § 3001,32 concluding that "'Congress knew how to draft a waste stream exemption in RCRA when it wanted to.'"33 |
| The dissent, authored by Justice Stevens (who wrote the Chevron opinion), disagreed with the majority on three levels — their approach to statutory interpretation, their conclusion on the provision's ambiguity, and their treatment of Chevron. First, the dissent's approach to statutory interpretation involved a close examination of EPA's 1980 rule-making. The dissent's examination revealed how the 1984 Amendments were a "clarification" of the 1980 rules.34 The dissent also reviewed the Amendments' legislative history, particularly a Report of the Senate Committee.35 This "common-sense reading of the statute," the dissent reasoned, revealed an "obvious purpose" to preserve the waste exclusion.36 |
| Second, the dissent asserted that "[t]he relevant statutory text is not as unambiguous as the Court asserts."37 RCRA § 1004(6)'s definition of the term "hazardous waste generation," read literally, "is broad enough to encompass the burning of pre-household waste that provides some hazardous residue."38 The dissent concluded that "EPA could reasonably conclude . . . that to give any content to the statute with respect to this component of the waste stream, the incinerator ash must be exempted from Subtitle C regulation."39 |
| Third, the dissent disagreed with the majority opinion's application of Chevron. In perhaps its most cryptic sentence, the Court had asserted that "the enacted text . . . requires us to reject the . . . plea for deference to the EPA's interpretation, which goes beyond the scope of whatever ambiguity § 3001(i) contains."40 The dissent did not question directly the meaning of this ambiguous statement; rather, it simply concluded that "EPA's position . . . was and remains a correct and permissible interpretation of the Agency's broad congressional mandate."41 |
| Issued soon after the Court decided City of Chicago, PUD No. 1 demonstrates the inconsistency in the Court's application of Chevron to EPA interpretations of statutory language. In PUD No. 1, the issue was whether the state of Washington's imposition of a minimum stream flow requirement on the petitioner's hydroelectric project was a permissible condition of a state certification for such projects under the FWPCA.42 The answer hinged on an interpretation of the language of FWPCA § 401, which requires states to provide a water quality certification before a federal license or permit can be issued for certain activities.43 The [25 ELR 10130] limitations that a state includes in the certification become a condition of any federal license.44 The narrow question of statutory interpretation for the Court was whether a state may impose water quality limitations only on a "discharge," or whether the state may impose such limitations on any activity that impacts water quality.45 |
| The 7-2 majority opinion, written by Justice O'Connor, reasoned that while § 401(a) authorizes a state to require that a "discharge" comply with certain provisions of the FWPCA, the text of § 401(d) requires certifications that will ensure that applicants, not discharges, comply with certain limitations and other requirements.46 Section 401(d) thus "allows the State to impose 'other limitations' on the project in general to assure the applicant's compliance with various provisions of the [FWPCA] and with 'any other appropriate requirement of State law.'"47 To bolster the argument, the majority reasoned that "[o]ur view of the statute is consistent with EPA's regulations implementing § 401."48 It concluded that EPA's interpretation was reasonable and entitled to deference under Chevron.49 |
| The dissent, written by Justice Thomas, and joined by Justice Scalia, questioned both the majority's interpretation of the statute and its use of the Chevron doctrine. Noting that "the Court's interpretation seems plausible at first glance,"50 the dissent nevertheless concluded that "[p]ermitting states to impose conditions unrelated to discharges . . . effectively eliminates the constraints of § 401(a)(1)."51 When § 401 is read "as a whole," the dissent reasoned, § 401(d) permits a state to place conditions on a certification to ensure compliance of an applicant, but "those conditions must still be related to discharges."52 |
| Regarding the majority's application of Chevron, the dissent noted that "[a]s a preliminary matter, the Court appears to resort to deference under Chevron without establishing through an initial examination of the statute that the text of the section is ambiguous."53 The dissent then asserted that the Court's use of Chevron was inappropriate in light of the fact that the government, in its amicus curiae briefs, did not seek deference to EPA's regulation.54 The dissent suggested that the government's omission of any mention of Chevron deference indicated that no agency construction clearly addressing the issue existed.55 |
| Discussion of City of Chicago and PUD No. 1 |
| City of Chicago and PUD No. 1's reasoning bear out the inconsistencies in the application of Chevron that the opinion's contrasting holdings suggest. The majority's and dissent's interpretations of RCRA § 3001(i) in City of Chicago both seem defensible — arguably the hallmark of ambiguity. Before City of Chicago was decided, then-Judge Scalia himself had asserted in an article addressing deference to agency interpretations that "[i]f Chevron is to have any meaning, . . . congressional intent must be regarded as 'ambiguous' not just when no interpretation is even marginally better than any other, but rather when two or more reasonable, though not necessarily equally valid, interpretations exist."56 In light of that observation, Justice Scalia's recognition in City of Chicago of "whatever ambiguity § 3001(i) contains" and subsequent refusal to consider deferring to EPA seems clearly contrary to the spirit of Chevron.57 |
| The majority opinion in PUD No. 1, in contrast, asserted that EPA's interpretation of § 401 was entitled to deference, yet did not first explicitly establish the existence of ambiguity. Rather than truly defer to EPA's interpretation, the majority seems to have used it to bolster its step-one interpretation of the statute. In that sense, the majority approach seems comparable to one of Justice Scalia's step-one tools: Using the existence of a "long-standing, consistent agency interpretation" as evidence that a statute is not in fact ambiguous.58 The majority's approach, then, reveals the emphasis that City of Chicago and PUD No. 1 place on step one of the Chevron doctrine. |
| City of Chicago and PUD No. 1 also demonstrate how the Court's willingness to defer to EPA's statutory interpretations varies with the Court's chosen method of statutory interpretation. The decisions magnify the significance of Justice Scalia's singular approach to statutory interpretation. By striving relentlessly to find clarity in statutory words and phrases — almost exclusively by scrutinizing a statute's structure and text — Justice Scalia side-steps ambiguities that arise when viewing the statute's words in the larger context of the historic interplay between Congress and EPA's regulatory process.59 Whether [25 ELR 10131] this approach effectuates the spirit of Chevron is, at the very least, questionable.60 |
| Directly comparing the majority approaches in Chevron and City of Chicago highlights the distinct differences between their approaches to statutory construction. Justice Stevens's majority opinion in Chevron considered the CAA's legislative history and the policy balancing manifested therein,61 the history of EPA's regulations concerning the definition of "source,"62 and Congress' intent that EPA have broad discretionary power to define "source."63 Justice Stevens employed a similar set of analytical tools in his dissent in City of Chicago.64 Significantly, the Chevron and City of Chicago Courts both faced a substantial history of EPA indecision with respect to the meaning of the provisions at issue.65 |
| The majority's approach in City of Chicago suggests that it would have resolved the statutory question at issue in Chevron by focusing simply on the language of the statutory provision at issue. While this approach may have led to the same conclusion that the Court reached, the approach is confined to what Justice Stevens describes as a "sterile textual vacuum."66 The problem with the plain-language approach as applied in City of Chicago is easily seen in its application to Chevron. At issue was CAA § 111(a)'s definition of stationary source: "[T]he term 'stationary source' means any building, structure, facility, or installation which emits or may emit any air pollutant."67 EPA had defined stationary "source" in its regulations so as to allow states to treat all pollution-emitting points at an industrial plant as though they were enclosed by a bubble with a single emission outlet.68 The CAA's definition of "stationary source," however, does not indicate whether, in the case of a multibuilding "facility," the "source" is each individual "building," each piece of emitting equipment, the entire plant, or all of them. The "plain" language indicates that both a multibuilding "facility" and its individual buildings are stationary sources, while the logic of stationary construction dictates that a multibuilding facility qualify as either a "building" or a "facility." At this point, divining congressional intent virtually demands using other tools of construction; it seems equally reasonable that courts should use such tools to confirm the accuracy of a more straightforward plain language approach, given the policy considerations involved. |
| This much is clear: The Justices' divergent theories of statutory construction allow the Court a flexibility that has resulted in no greater uniformity in the context of deference to agency interpretations than existed before Chevron.69 It appears that by using these several theories, the Court will be able simply to avoid the issue of deference under Chevron whenever it chooses, thus raising the question of whether the Chevron test retains any precedential viability at all. The wide range of tools of statutory construction creates a situation where "the Chevron framework becomes at best unpredictable, and in fact a vehicle for complete substitution of judicial judgment for the views of the agency,"70 which may indeed not be all that bad.71 The plain-meaning approach "tends to converge with a 'clearly preferred meaning' approach."72 That approach, as well as the flexibility that the other interpretive methods provide the Court, may "dramatically transform Chevron from a deference doctrine to a doctrine of anti-deference."73 |
| Problems for EPA |
| City of Chicago and PUD No. 1 highlight several problems with regard to the Chevron doctrine and its relationship to EPA and environmental legislation. The implications of the Court's approach to Chevron both in these cases and in general are particularly important to environmental law because of the nature of environmental statutes. Environmental legislation is often complex. This complexity is partly inherent in command-and-control legislation, but it is also arguably inherent in the subject matter. Environmental legislation attempts to establish a coherent legal framework, usually embodying several policies, around complex economic and physical activities, the environmental consequenses of which are poorly understood at best. Also, environmental statutes have, in general, been poorly drafted. |
| The strict plain-meaning approach to statutory interpretation in City of Chicago thus presents a fundamental problem. Justice Scalia has previously stated, and City of Chicago illuminates, two conclusions that can be drawn from the plain-meaning approach to Chevron: (1) policy evaluation is part of the "tool-kit" of statutory construction that the Court may use in applying the first step of Chevron;74 and (2) more often than most judges, Justice Scalia and those who follow his approach will not arrive at Chevron's step two at all.75 This kind of "enlarged judicial role at step one" may "have the paradoxical effect of elevating the courts rather than agencies to the role of primary policy- [25 ELR 10132] maker."76 Thus, Justice Scalia's approach may have the ironic result that in the case of more detailed environmental statutes, the courts are increasingly interpreting or even shaping policy. |
| One reason the Court set forth in Chevron its step-wise approach to deference to agency interpretations was its recognition of its limited policymaking role. In the decision below, the D.C. Circuit had concluded that "[t]he goal of the [CAA's] nonattainment program is undoubtedly to improve air quality in regions lagging behind in meeting the [national ambient air quality standards]."77 Given the nonattainment program's "raison d'etre,"78 the D.C. Circuit held that the "bubble concept" was impermissible for areas in which air quality does not meet federal standards. |
| The Supreme Court reversed the D.C. Circuit in Chevron, stating: |
| Once [the lower court] determined, after its own examination of the legislation, that Congress did not actually have an intent regarding the applicability of the bubble concept to the permit program, the question before it was not whether in its view the concept is "inappropriate" in the general context of a program designed to improve air quality, but whether the Administrator's view that it is appropriate in the context of this particular program is a reasonable one.79 |
| The majority's allusion in City of Chicago to RCRA's "national policy" closely resembles the D.C. Circuit's allusion to the CAA's "undoubtable goal" — a policy consideration that the Chevron Court ultimately rejected.80 |
| While the City of Chicago majority's invocation of policy considerations particularly threatens EPA's role as a policymaker, City of Chicago and PUD No. 1 both implicate the potential for the courts to use an enlarged role at step one of Chevron to foreclose deference to agencies altogether.81 Moreover, there are several reasons why a focus on step one of Chevron may not result in consistent and rational judicial review of environmental rules in the long term. |
| Interpretive Problems |
| In contrast to many other types of statutes, environmental statutes are not readily disposed of at step one of the Chevron test. Each classical tool of statutory construction encounters obstacles to divining congressional intent that are unique to the nature of environmental legislation. These problems call for a thorough judicial awareness of EPA's interpretations of statutes, as well as the overall structure of EPA's implementing regulatory programs, at both steps of the Chevron test. |
| Increasingly detailed statutes, for example, by no means ensure that a plain-language reading will reveal how Congress intended to treat a specific issue. In fact, the more specific Congress tries to be, the more likely it becomes that there will be statutory ambiguities.82 Therefore, "to ask the interpreter to 'ascertai[n] that Congress had an intention on the precise question at issue,' as Chevron demands, is to ask a question that will yield an affirmative answer — at least an honest affirmative answer — in only a tiny number of cases."83 |
| More "holistic" policy-oriented textual construction of environmental statutes may be no more successful in resolving ambiguities. The search for a detailed environmental statute's underlying purpose, for example, may be fruitless. Detailed statutes such as the 1990 Amendments to the CAA often contain adopted policies that "have become too opaque to be available for purposes of judicial interpretation. . . . [In such cases,] an aggressive search for statutory purposes will be unavailing."84 Interpretive tools like Justice Scalia's reliance in City of Chicago on RCRA's "express national policy," which may have been misplaced to begin with, could also be unavailable for increasingly complex environmental statutes that contain more than one policy goal. |
| Moreover, when policy considerations inform a court's interpretation of how Congress meant two or more environmental statutes to interact, the emphasis on step one of the Chevron test becomes especially misplaced. This is because "[s]tatutes interact in surprising ways with . . . other statutes. Unanticipated consequences are common."85 Presented with only a narrow statutory question, a court may resolve an issue at step one by deciding that a statute is unambiguous without ever examining how EPA expects the statute to interact with other statutes — which many argue is one of EPA's fundamental tasks.86 |
| Practical Problems |
| The Court's willingness to resolve Chevron questions at step one, and the resulting implied threat of lack of deference, also present practical problems. For example, in some instances, "[c]ompliance with court orders has become [25 ELR 10133] the agency's top priority, at times overtaking Congressional mandates."87 The Chevron court itself concluded that "it was the Court of Appeals, rather than Congress or any of the decisionmakers who are authorized by Congress to administer this legislation, that was primarily responsible for the 1980 position taken by the agency."88 This outcome is ironic in light of Congress' attempts to express its policy goals more clearly through more detailed legislation, and may create a scenario where EPA must direct its limited resources to what may amount to judicial determinations of policy rather than congressionally mandated policy. |
| The above analysis illuminates some of the problems that the plain-meaning approach to statutory interpretation and the application of Chevron employed in City of Chicago may create in the context of environmental statutes. The decision suggests a willingness to forego substantive consideration of EPA's interpretations of statutes that the Agency is charged with administering — a willingness that ignores the several limitations that the traditional tools of statutory construction face with regard to environmental legislation. Although Justice Scalia has asserted that an agency's long-standing interpretation of a statute is one of his tools of construction,89 the majority opinion in City of Chicago contains no evidence of such an analysis. Continued application of the City of Chicago Court's approach to applying the Chevron test would essentially eviscerate EPA's role as interpreter of statutes, notwithstanding the lessons that the Agency's experience offers with regard to integrated, practical, and scientifically informed implementation of congressional directives. |
| Conclusion |
| City of Chicago and PUD No. 1 reveal an emphasis on the question of whether a statute is ambiguous that is problematic in relation to EPA in several ways. First, the Court's methods of statutory interpretation with regard to increasingly detailed and complex environmental statutes may be ineffective in disclosing whether Congress has specifically addressed the statutory question presented. Second, Justice Scalia's approach to applying step one of the Chevron test — and his proclivity toward resolving statutory questions without considering EPA's interpretations — suggests a reading of Chevron that given the vast amount of "plain" language provided in these detailed statutes, may ultimately destroy EPA's interpretive role entirely. Third, as PUD No. 1 demonstrates, it is unclear whether the Court actually defers to EPA's interpretations of statutes, when considering them at all, or merely uses them as an addendum to bolster its interpretive arguments. |
| Perhaps most problematic is Justice Scalia's consideration at step one of the test of the "policy" motivating a statute. Especially in light of Chevron's dismissal of what the D.C. Circuit had regarded as crystal clear policy, Justice Scalia's plain-language approach threatens to mischaracterize Chevron entirely. It also threatens to allow the judiciary free rein to select one of what are usually several, sometimes competing, policies embedded in a particular statute. |
| The current status of the Chevron test, particularly in the environmental context, remains unclear. Over a decade ago, the Court's approach to agency interpretations of statutes was criticized for its lack of uniformity and predictability.90 Chevron initially seemed to have established a more predictable and uniform doctrine. City of Chicago and PUD No. 1, however, leave the environmental community once again guessing as to how much deference courts will accord EPA's statutory interpretations. |
| 1. Marshall J. Breger, The Role of Legislative History in Judicial Interpretation — A Discussion Between Judge Kenneth W. Starr and Judge Abner J. Mikva: Introductory Remarks, 1987 DUKE L.J. 362, 370. |
| 2. 114 S. Ct. 1588, 24 ELR 20810 (1994). |
| 3. 42 U.S.C. §§ 6901-6992k, § 6921(i), ELR STAT. RCRA §§ 1001-11012, § 3001(i). |
| 4. See Chicago, 114 S. Ct. at 1593, 24 ELR at 20813. |
| 5. See id. |
| 6. 114 S. Ct. 1900, 24 ELR 20945 (1994). |
| 7. 33 U.S.C. §§ 1251-1387, § 1341, ELR STAT. FWPCA §§ 101-607, § 401. |
| 8. PUD No. 1, 114 S. Ct. at 1909, 24 ELR at 20948. |
| 9. Id. |
| 10. See id. |
| 11. 467 U.S. 837, 14 ELR 20507 (1984). |
| 12. 42 U.S.C. §§ 7401-7671q, § 7411(a), ELR STAT. CAA §§ 101-618, § 111(a). |
| 13. See Chevron, 467 U.S. at 842-44, 14 ELR at 20508-09; see also Laurence H. Silberman, Chevron — the Intersection of Law and Policy, 58 GEO. WASH. L. REV. 821, 822 (1990). |
| The significance of the last part of the Chevron inquiry — whether the agency is charged with enforcing the portion of the statute in question — has been magnified in the environmental arena in two recent cases. In Kelley v. U.S. Environmental Protection Agency, 15 F.3d 1100, 24 ELR 20511 (D.C. Cir. 1994), the court held that EPA's lender liability rule was beyond the scope of EPA rulemaking powers, because Congress gave the courts, and not EPA, the authority to interpret questions of liability. See id; see also Donald W. Stever & Eliza A. Dolin, U.S. Uncertainty on Environmental Liability: A U.S. Court's Recent Invalidation of the Lender Liability Rule Puts the U.S. Bankruptcy Community Back Into Murky Waters, 13 INT'L FIN. L. REV. 15 (1994). In the second case, Key Tronic Corp. v. United States, 114 S. Ct. 1960, 24 ELR 20955 (1994), the Supreme Court held that the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405, generally does not provide for the award of private litigants' attorneys fees associated with bringing a cost recovery action. The question clearly was not about a statutory provision that EPA was charged with enforcing, and the Agency had never done any rulemaking on the provision. This Article addresses the two Supreme Court cases that deal with statutes that EPA clearly is charged with enforcing. |
| 14. See Chevron, 467 U.S. at 842-43, 24 ELR at 20508-09. |
| 15. Id. at 842, 24 ELR at 20508. |
| 16. Id. at 843 n.9, 24 ELR at 20508 n.9. |
| 17. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 520-21. |
| 18. See Russell L. Weaver, Some Realism About Chevron, 58 MO. L. REV. 129 (1993). |
| 19. See, e.g., Thomas Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 988 (1992) (criticizing use of canons of statutory construction in Chevron context); Scalia, supra note 17, at 517 (criticizing use of legislative intent in interpreting statutes); see generally Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 407 (1989). |
| 20. Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, 98 Stat. 3221. |
| 21. See City of Chicago v. Environmental Defense Fund, 114 S. Ct. at 1591, 24 ELR at 20811. |
| 22. 45 Fed. Reg. 33084, 33120 (May 19, 1980). See City of Chicago, 114 S. Ct. at 1591, 24 ELR at 20811. |
| 23. 42 U.S.C. § 6921(i), ELR STAT. RCRA § 3001(i). |
| 24. See City of Chicago, 114 S. Ct. at 1591, 24 ELR at 20811. |
| 25. See id. at 1591-92, 24 ELR at 20811-12. |
| 26. See id. at 1592, 24 ELR at 20812. |
| 27. See id. at 1591, 24 ELR at 20811. |
| 28. Id. (quoting 42 U.S.C. § 6902(b), ELR STAT. RCRA § 1003(b)). |
| 29. See id. at 1592, 24 ELR at 20811. |
| 30. Id. 42 U.S.C. § 6903(3) (defining "disposal"), § 6903(33) (defining "storage"), § 6903(34) (defining "treatment"), ELR STAT. RCRA § 1004(3), (33), (34). |
| 31. City of Chicago, 114 S. Ct. at 1592, 24 ELR at 20812. |
| 32. See 42 U.S.C. § 6921, ELR STAT. RCRA § 3001. |
| 33. City of Chicago, 114 S. Ct. at 1593, 24 ELR at 20812 (quoting Brief for Respondents at 18). |
| 34. See id. at 1594-96. 24 ELR at 20813-14. |
| 35. See id. at 1596-97, 24 ELR at 20814. |
| 36. Id. at 1597, 24 ELR at 20814. |
| 37. Id. |
| 38. Id. 42 U.S.C. § 6903(6), ELR STAT. RCRA § 1004(6). |
| 39. City of Chicago, 114 S. Ct. at 1597, 24 ELR at 20814. |
| 40. Id. at 1593, 24 ELR at 20812-13 (citation omitted). |
| 41. Id. at 1598, 24 ELR at 20815. |
| 42. See PUD No. 1, 114 S. Ct. 1900, 1909, 24 ELR 20945, 20947 .33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607. |
| 43. See PUD No. 1, 114 S. Ct. at 1908-1909, 24 ELR at 20946. |
| (d) Limitations and monitoring requirements of certification |
| Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations, under section 1311 or 1312 of this title, or prohibition, effluent standard, or pretreatment standard under section 1317 of this title, and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of the section. |
| 33 U.S.C. § 1341, ELR STAT. FWPCA § 401. |
| 44. See PUD No. 1, 114 S. Ct. at 1907, 24 ELR at 20946; 33 U.S.C. § 1341(d), ELR STAT. FWPCA § 401(d). |
| 45. See PUD No. 1, 114 S. Ct. at 1909, 24 ELR at 20948. |
| 46. See id. at 1909, 24 ELR at 20947. |
| 47. Id. (quoting 33 U.S.C. § 1341(d), ELR STAT. FWPCA § 401(d)). |
| 48. Id. |
| 49. See id., 24 ELR at 20948. |
| 50. Id. at 1916, 24 ELR at 20951. |
| 51. Id. at 1916, 24 ELR at 20951-52. |
| 52. Id. at 1916, 24 ELR at 20952. |
| 53. Id. at 1917, 24 ELR at 20952. |
| 54. See id. |
| 55. See id. |
| 56. Scalia, supra note 17, at 520-21. |
| 57. See infra text accompanying notes 76-78. |
| 58. See Scalia, supra note 17, at 518. An interesting aspect of Justice Scalia's approach to statutory interpretation that is conspicuously absent in City of Chicago is his willingness to consider the existence of a "long-standing, consistent agency interpretation" of a statute as part of the evidence showing that the statute is in fact not ambiguous, and that the agency's interpretation should be adopted. See id. While the city of Chicago petitioned the Court for a writ of certiorari, the EPA Administrator issued a memorandum that directed EPA Regional Administrators to treat MWC ash as exempt from hazardous waste regulation. See City of Chicago, 114 S. Ct. at 1590, 24 ELR at 20810. Justice Scalia, however, did not mention the memorandum at all in his disposition of the statutory question. Thus, in City of Chicago, Justice Scalia may have implicitly adopted a variation on his rule: A statutory interpretation made by an agency only recently — and perhaps only for the purpose of litigation — provides no evidence of the legitimacy of the agency's interpretation at all. |
| 59. Justice Scalia has expressed his reluctance to using legislative history to interpret statutes is well-documented. |
| And to tell the truth, the quest for the 'genuine' legislative intent is probably a wild-goose chase anyway. In the vast majority of cases I expect that Congress neither (1) intended a single result, nor (2) meant to confer discretion upon the agency, but rather (3) didn't think about the matter at all. |
| See Scalia, supra note 17, at 517. |
| 60. One commentator has stated: "If a case is resolved at the first step of Chevron, one must assume a situation where either a petitioner has brought a particularly weak case to the court of appeals, or the agency is sailing directly against a focused legislative wind. Neither eventuality occurs very often." Silberman, supra note 13, at 826. See also Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452 (1989); Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2091 (1990) ("Indeed, Justice Kennedy has gone so far as to suggest that the agency view should prevail if the statute is 'arguably ambiguous.'") (quoting K Mart Corp. v. Cartier, Inc., 108 S. Ct. 1811, 1818 n.4 (1988)). |
| 61. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. at 845-53, 24 ELR at 20509-11. |
| 62. See id. at 853-59, 24 ELR 20511-13. |
| 63. See id. at 859-66, 24 ELR at 20513-15. |
| 64. See City of Chicago v. Environmental Defense Fund, 114 S. Ct. at 1594-98, 24 ELR at 20813-15. |
| 65. Chevron, 467 U.S. at 853-859, 14 ELR at 20511-13. |
| 66. Id. at 863, 24 ELR at 20514. |
| 67. 42 U.S.C. § 7411(a), ELR STAT. CAA § 111(a). |
| 68. Chevron, 467 U.S. at 840, 14 ELR at 20508. |
| 69. See Weaver, supra note 18, at 129 n.75. ("Because the Court uses these 'tools of construction' in applying Chevron, the Court has retained much discretion about when deference is required."). |
| 70. Merrill, supra note 19, at 1001. |
| 71. See Donald W. Stever, Deference to Administrative Agencies in Federal Environmental, Health and Safety Litigation — Thoughts on Varying Judicial Application of the Rule, 6 W. NEW. ENG. L. REV. 35, 61 (1983). |
| 72. Merrill, supra note 19, at 1001. |
| 73. Id. at 992. |
| 74. See Scalia, supra note 17, at 515; City of Chicago v. Environmental Defense Fund, 114 S. Ct. at 1592, 24 ELR at 20811. |
| 75. See id. |
| 76. Merrill, supra note 19, at 1002. |
| 77. Natural Resource Defense Council v. Gorsuch, 685 F.2d 718, 727, 12 ELR 20942, 20948 (D.C. Cir. 1982). |
| 78. Id. at 726, 12 ELR at 20947. |
| 79. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. at 845, 14 ELR at 20509. |
| 80. See id. at 864-66, 14 ELR at 20514-15. |
| 81. See supra text accompanying note 70. |
| 82. Judge Silberman has posited that "[t]he more detailed the instructions drafted in an effort to anticipate every twist and turn that a regulation will undergo, the more likely it is . . . that a draftsman will create ambiguity." Silberman, supra note 13, at 826. |
| 83. Merrill, supra note 19, at 1000. |
| 84. Robert Glicksman & Christopher H. Schroeder, EPA and the Courts: Twenty Years of Law and Politics, 54 LAW & CONTEMP. PROBS. 249 (1991). |
| 85. Sunstein, supra note 60, at 2090. |
| 86. See, e.g., Silberman, supra note 13, at 824; Sunstein, supra note 60, at 2087-89. Cf. Stever, supra note 71, at 59-68. Claims for deference to agency interpretations of statutes are compelling. He remains critical of "blind deference" to administrative interpretation. Id. Blind deference is the polar opposite of Scalia's plain-language approach. A means of achieving something short of blind deference may be what the Court was groping for. A certain level of deference is probably necessary for several reasons. Environmental statutes in the past 10 years have become increasingly more complex and prescriptive, and less clearly written. While EPA may not hold a significant superiority over the courts in making technical determinations and judgments, it may be in an increasingly advantageous position to interpret detailed and complex statutes so as to put forth a coherent, or at least not inconsistent, overall environmental policy. This Article does not advocate any specific amount of deference to be accorded at step two; that is well-covered ground. This Article does, however, question the logic of resolving these questions at step one of the Chevron test without considering EPA's interpretations at all, or of treating EPA's interpretations as simply a means to bolster one's interpretive argument. See supra note 58 and accompanying text. |
| 87. Rosemary O'Leary, The Impact of Federal Court Decisions on the Policies and Administration of the U.S. Environmental Protection Agency, 41 ADMIN. L. REV. 549, 561 n.45 (1989). |
| 88. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. at 864, 14 ELR at 20514. |
| 89. See Scalia, supra note 17, at 518. |
| 90. See Stever, supra note 71, at 62. |
25 ELR 10127 | Environmental Law Reporter | copyright © 1995 | All rights reserved
