Envirocare v. NRC Increases Agency Discretion to Deny Administrative Intervention: Right Result--Wrong Reason

Envirocare v. NRC Increases Agency Discretion to Deny Administrative Intervention: Right Result—Wrong Reason

William S. Jordan III

Mr. Jordan is a C. Blake McDowell Professor of Law, University of Akron School of Law. He received his J.D. from the University of Michigan Law School and his B.A. from Stanford University. The author is grateful to Professor Bernadette Genetin, who read and critiqued an earlier draft of this Article.

[30 ELR 10597]

The law of standing to intervene in administrative proceedings has long been something of a stepchild of the law of standing to be heard in court. The recent decision of the D.C. Circuit Court of Appeals in Envirocare of Utah, Inc. v. NRC¹ may, however, have brought administrative standing out of the shadow of its more prominent relation.

Envirocare makes the following contributions to the law governing standing to intervene in agency proceedings. First, the court upheld the agency's denial of intervention standing to a company whose economic interests would be adversely affected by the agency's decision to issue a license to a competitor. Second, the court upheld the agency's position that it may deny standing to intervene even if the party in question would later qualify for standing on judicial review of the agency's decision. Third, in reaching its decision, the court deferred to the agency's view of the scope of the hearing provision in its organic statute. The net result of Envirocare is a substantial expansion of agency authority to control intervention in agency proceedings.

It is important to emphasize, however, what Envirocare did not decide. This is not a decision about standing to be heard in court. Although much of the reasoning is similar to that employedin judicial consideration of the "zone of interests" prong of standing, the court did not apply that test. To the contrary, the court assumed that the company petitioning to intervene met the zone of interests test, but held that the test does not apply to intervention in administrative proceedings.² Thus, the Envirocare decision would not provide support for a decision that a party did not have standing to challenge an agency action in court.

As discussed below, Envirocare sits astride two current lines of analysis concerning agency authority. In strengthening agencies' control of their own proceedings, the decision speaks to concerns about dilatory tactics and undue delays hampering agency ability to pursue the statutory missions. To that extent, the decision may enhance agency ability to serve the public interest as determined by Congress. On the other hand, the prospect of judicial deference to agency intervention decisions threatens to allow agencies to turn a deaf ear to views the agencies should have to consider, and thus to undermine the legitimacy of agency decisions.

Standing in Court and Standing Before Agencies

It might be said that the modern law of standing began to develop with FCC v. Sanders Bros.,³ in which the U.S. Supreme Court recognized that a radio station could obtain judicial review of a Federal Communications Commission (FCC) decision issuing a license to a competitor. The challenger's standing depended not upon some "legal interest," for it had no legal interest in resisting competition, but upon the fact that the challenger was a "person aggrieved or whose interests are adversely affected by" the FCC's licensing decision.⁴ As the Court explained it, Congress could, if it chose, authorize a challenge by such a competitor because

It may have been of the opinion that one likely to be financially injured by the issue of a license would be the only person having a sufficient interest to bring to the attention of the appellate court errors of law in the action of the Commission in granting the license.⁵

The Court's concern with assuring that appellate courts will be able to correct agency errors of law was reflected in later decisions generally liberalizing the requirements governing judicial standing.⁶ Of particular importance here, Association of Data Processing Service Organizations v. Camp⁷ expressly rejected the "legal interest" test as a restraint on judicial standing where a statute authorizes review by a person adversely affected or aggrieved by agency action. In its place, the Court articulated the requirement that a challenger be "arguably within the zone of interests" of the relevant statute.⁸

[30 ELR 10598]

Consistent with these developments, the D.C. Circuit also recognized broad standing to intervene in agency proceedings. In 1958, for example, the court held in Philco Corp. v. FCC⁹ that a company making radios and electronic equipment should be allowed to intervene in opposition to a broadcast license renewal sought by a company owned by one of its major competitors. The economic harm from its competitor's use of the broadcast station was enough to make the company a "party-in-interest" entitled to participate in the FCC proceeding.

By the mid-1960s, therefore, there seemed little question that an economic competitor would have standing before an agency, if only because it was probably the only entity likely to bring the alleged violations to the attention of the courts. In 1966, D.C. Circuit expanded agency standing still further, requiring that the FCC admit broadcast station consumers into its licensing proceedings.¹⁰ As the Court in Sanders Bros. had been concerned about the need to have someone bring issues before the courts, the court in Office of Communication of United Church of Christ v. FCC¹¹ was concerned about assuring that agencies heard from a full range of those affected by agency action, not just from the regulated industry or the agency staff. Consumers were now parties-in-interest under the hearing provisions of the Federal Communications Act. Expansion of intervenor standing continued with National Welfare Rights Organization v. Finch,¹² in which the D.C. Circuit ordered an agency to admit to its proceedings parties that would ultimately have standing to seek judicial review. The purpose of such intervention would be to "perfect[] the right to review."¹³

Since these expansive decisions on administrative standing, judicial standing has begun to contract. With the Supreme Court tightening the requirements for causation¹⁴ and finding a barrier in the zone of interests test where none had appeared for more than 20 years,¹⁵ we might well expect to see a similar contraction in standing to appear before administrative agencies.¹⁶

Ironically, Envirocare¹⁷ appears to follow the same contracting trend as doctrines of judicial standing in the same breath as it affirms agency independence of those doctrines.

The Envirocare Litigation

The NRC's Decisions

Envirocare operated a facility licensed by the Nuclear Regulatory Commission (NRC) to dispose of certain types of radioactive wastes. While various companies were licensed to dispose of their own wastes on the sites where the wastes were produced, Envirocare was the only company licensed to dispose of such wastes from off-site sources.¹⁸

Not surprisingly, Envirocare was upset when the NRC decided to grant similar off-site disposal licenses to two other companies, Quivira Mining Company (Quivira Mining) and International Uranium (USA) Corporation (International Uranium). As characterized by the NRC, "Envirocare's basic complaint was . . . that the NRC did not require [the other two companies] to meet the same regulatory standards the agency imposed upon Envirocare when Envirocare sought its license to become a commercial disposal facility."¹⁹ As a result of this alleged disparate treatment, Envirocare argued, it would suffer a "severe competitive disadvantage."²⁰

Citing this competitive harm, Envirocare sought to intervene in the NRC's proceedings for issuance of the licenses in question. The extent of intervention rights in NRC proceedings is governed by Section 189a of the Atomic Energy Act (AEA), which provides that the NRC must grant a hearing upon the request of any person "whose interest may be affected by the proceeding."²¹ According to Envirocare, the competitive economic harm that it would suffer if the licenses were issued rendered the company a person "whose interested may be affected" by the NRC's action.

The NRC first addressed Envirocare's claims in Quivira Mining Co.²² Reflecting a long tradition of looking "for guidance to current judicial concepts of standing,"²³ the NRC held that Envirocare met the requirement for an actual injury-in-fact, but that its claim of competitive economic injury did not fall within the zone of interest of the applicable statutes.²⁴ The NRC's analysis closely tracked and relied upon precedent concerning standing to be heard in court.

In addition to holding that Envirocare's interests did not fall within the zone of interest under the traditional standards for judicial standing, the NRC emphasized the policy concern that intervention by a party seeking solely to protect competitive advantage, would be "more likely to frustrate than to further statutory objectives."²⁵ Consistent with that concern, the NRC held that competitor status alone is insufficient to support standing, particularly in light of a growing concern about the misuse of administrative litigation by economic competitors.²⁶

[30 ELR 10599]

Four months after the Quivira decision, the NRC rejected Envirocare's petition to intervene in opposition to a similar license request filed by International Uranium.²⁷ Again relying on judicial precedent involving standing under Article III, the NRC found that Envirocare's competitive harm did not fall arguably within the zone of interest of either the National Environmental Policy Act (NEPA)²⁸ or the AEA. More particularly, the NRC addressed at further length the then-recent Supreme Court decision in National Credit Union Administration v. National Bank & Trust (NCUA).²⁹ Rejecting the proposition that NCUA had "all but eviscerated" the zone of interests test, the NRC emphasized that all of the Supreme Court cases recognizing competitor standing had been "rooted in some applicable statutory provision whose clear intent or effect [was] to restrict competition."³⁰ By contrast, according to the NRC, "neither NEPA nor the AEA contains a remotely similar market limitation provision upon which competitor standing may rest."³¹

Thus, the NRC firmly grounded both of these decisions in standards governing judicial standing under Article III. To that extent, the NRC's decisions are important because they represent the agency's determination to deny competitor intervention standing despite judicial precedent suggesting that competitors are entitled to intervene.³² Otherwise, however, the NRC's decisions based upon judicial standing concepts are largely unremarkable.

But the NRC went beyond judicial standing, setting the stage for the significant developments that would eventually come in the D.C. Circuit's Envirocare decision. Emphasizing that it was not bound to apply judicial concepts of standing, the NRC asserted that its "principal concern is to assure the parties participating in our adjudicatory proceedings have interests that are cognizable under the AEA."³³ As it had in the past,³⁴ the NRC viewed the AEA's concerns as limited to protecting the public health and safety and the common defense and security from hazards of radioactivity. Thus, said the NRC:

Even if we have misapprehended the judicial zone of interests inquiry, . . . our understanding of the AEA requires us to insist that a competitor's pecuniary aim of imposing additional regulatory restrictions or burdens on fellow market participants does not fall within those "interests" that trigger a right to hearing and intervention under s. 189a.³⁵

In addition to relying upon this legal position, the NRC again asserted the policy concern that "Competitors, . . . whose only 'interest' is lost business opportunities, could readily burden our adjudicatory process with open-ended allegations designed not to advance public health and safety but as a dilatory tactic to interfere with and impose costs upon a competitor." The result would be a "significant diversion of limited agency resources, which ought to be squarely—genuinely—focused upon health and safety concerns."³⁶

The D.C. Circuit's Envirocare Decision

In upholding the NRC's decisions, the D.C. Circuit could simply have confirmed the NRC's conclusion that Envirocare's economic interest did not fall within the zone of interests of the AEA. This would have been consistent with the NRC's own reference to its long-standing practice of looking "for guidance to current judicial concepts of standing,"³⁷ Such an approach would also have been consistent with previous D.C. Circuit decisions generally equating administrative standing with standing to be heard in court.³⁸

The court chose, instead, to emphasize the difference between standing to intervene in an administrative proceeding and standing to appear in court. Judicial standing, the court stressed, is governed by the "case and controversy" requirement of Article III and by prudential standing requirements such as the "zone of interests" test, which rest "on considerations 'about the proper—and properly limited—role of the courts in a democratic society.'"³⁹ Since an agency is not a court, but rather part of a politically accountable branch of government, the zone of interests test does not apply to agency decisions about intervention in administrative proceedings.Accordingly, the court simply assumed that Envirocare was correct in arguing that it fell within the zone of interests⁴⁰ and then turned its attention to the question of whether the NRC could be sustained under the distinct standards applicable to administrative interventions.

In taking this position, the court emphatically rejected the proposition that agencies must "allow administrative standing to those who can meet judicial standing requirements."⁴¹ This required the court to distinguish or otherwise dismiss the implications of the three most prominent cases in the area of administrative standing, Office of Communication,⁴² Finch,⁴³ and Virginia Petroleum Jobbers Ass'n v. FPC.⁴⁴ It did so by noting that none of these decisions involved the standing provision of the AEA and that all of them were decided before Chevron, U.S.A., Inc. v. Natural Resources Defense Council,⁴⁵ which the court viewed as governing its review of the NRC's application of the AEA. The court also [30 ELR 10600] relied upon Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council⁴⁶ for the proposition that a court may not impose intervention requirements upon agencies solely to perfect the right to judicial review.⁴⁷

Having decided that the availability of judicial standing does not necessarily dictate the availability of administrative standing, the court examined the NRC's application of § 189a of the AEA, which provides that the NRC must hold a hearing and allow intervention "on the request of any person whose interest may be affected by the proceeding.⁴⁸ For a variety of reasons, the court found the term "interest" to be ambiguous.⁴⁹ Given that ambiguity, the court had no difficulty upholding as reasonable the NRC's view that harm to economic competitors did not come within the scope of legislation concerned with radiological threats to the public health and safety.⁵⁰

With Chevron as its guiding light, the court did not have to reach its own conclusion about the scope of the Act. Indeed, the court seemed determined to avoid addressing that question even in its review of the Quivira decision, which the NRC had decided solely on the ground that Envirocare did not fall arguably within the zone of interests of the statute. Rather than affirming the NRC on that ground, the court recognized, quite reasonably, that any remand would be answered by the reasoning of International Uranium. Accordingly, the court simply upheld both decisions on the NRC's AEA reasoning in International Uranium.⁵¹ As a result, Envirocare never actually reached the question of whether an economic competitor falls arguably within the zone of interests of the AEA.

Finally, the court noted that, "the Commission also properly took account of regulatory burdens on the agency" in determining the scope of the intervention provision of § 189a of the AEA.⁵² There is no doubt after Envirocare that an agency may, injudging the scope of such a provision, reasonably take into account the problems of open-ended allegations and dilatory tactics diverting agency resources from the agency's primary task.

The court's recognition of such broad discretion on the part of the agency highlights the central flaw in the court's decision. As discussed below, the court reached the correct result for the wrong reasons, reasons that may come back to haunt the administrative process. The court was correct to allow the agency to consider the threats posed by misuse of agency process. It was also correct in upholding denial of intervention to a mere economic competitor in a proceeding governed by the AEA. But it took a serious misstep in importing Chevron deference into the arena of deciding which parties should be entitled to appear in administrative proceedings.

Affirming the Intervention Denial—An Appropriate Response to Regulatory Burdens

The broadening of administrative standing, represented particularly by Office of Communication,⁵³ reflected what has come to be known as the "interest representation" model of administrative law.⁵⁴ The general concept of this model was "an idealized legislative process in which otherwise unrepresented voices would be empowered to participate meaningfully in the crafting of public policy."⁵⁵ Office of Communication itself reflects the fact that administrative law shifted toward broad representation as a means of assuring that agencies consider all aspects of the issues at stake, rather than being influenced primarily by the regulated industry.⁵⁶

This development reflected an attitude comparable to the court's concern in Sanders Bros. that if a competitor was not granted standing, no one else would be able to bring the errors to the attention of the courts. Both reflect a distrust of agencies. Sanders Bros. signaled the courts' interest in assuring that courts would generally be able to review the merits of agency decisions, while Office of Communication represented an attempt to improve agency decisions more directly by assuring that agencies heard as many voices as possible.

Even as the D.C. Circuit threw open the doors to consumer standing, however, it acknowledged "that there may be efforts to exploit the enlargement of intervention, including spurious petitions by private interests not concerned with the quality of broadcast programming."⁵⁷ Although the court believed that this and other administrative burdens of expanded intervention could "be dealt with by the Commission under its inherent powers and by rulemaking,"⁵⁸ broadened intervention was soon subjected to the criticism that "not enough attention has been paid . . . to the applicant's potential contribution or to the agency's need for expedition in the handling of cases."⁵⁹ In light of that concern, Professor Shapiro offered three recommendations designed to increase the agency's flexibility in granting or denying intervention in order to limit participation to interveners who can make valuable contributions. Of particular interest, he urged that "the right to be a party [before the agency] should not be an ineluctable consequence of the right to obtain [judicial] review."⁶⁰

Professor Stewart reflected this concern in his seminal examination of the interest representation model, concluding that a judicially mandated model of increased representation was both too burdensome and too expensive.⁶¹ Unable [30 ELR 10601] to accept the interest representation model as a satisfying all-encompassing theory, he urged that we "spurn superficial analysis and simplistic remedies" and accept the "dense complexity" of the task of administrative law.⁶²

In the intervening years, critics have identified both specific undue burdens of intervention and an explanation of why this seemingly increased democratization has, instead, distorted agency consideration of the relevant issues. In 1986, a student comment discussed the problem of delays and costs imposed by the consideration of nonmeritorious contentions in nuclear plant licensing proceedings. Assuming that a prospective intervener must "possess an interest that may be affected by the licensing proceeding," the author rejected limiting who may intervene for fear that such a limit have an "undesirable chilling effect on the identification and resolution of design, construction, or operational errors."⁶³ In context, however, it is clear that the author is concerned about the burden of nonmeritorious contentions offered by those who oppose the nuclear plant for health and safety reasons, not about the burden of intervention by a party who is merely an economic competitor.⁶⁴ Thus, the author's solution, requiring greater specificity in the contentionssubmitted as a condition of intervention, is an appropriate response to the problem as seen by the author.

Professor Noah suggests a similar solution in his examination of what he calls "sham petitioning," competitor interventions designed not to protect the public health and safety but to prevent competitors from entering a particular market.⁶⁵ Through an extensive description of the misuse of the drug approval process of the Food and Drug Administration, Noah demonstrates that "real opportunities exist for sham petitioning, especially when market entry requires some sort of agency licensing as in the pharmaceutical, transportation, communications, and energy industries."⁶⁶ Despairing of the possibility of actually preventing interventions by competitors with inappropriate motivations, Noah proposes other more limited solutions, including limiting the stage or scope of participation and declining to delay decisions pending the outcome of administrative proceedings.⁶⁷

The Envirocare petitions to intervene presented precisely the problem addressed by Professor Noah.⁶⁸ Developments since the early broadening of administrative standing demonstrate that we cannot rely upon simple categories such as economic competitors or consumers in determining who should have the right to intervene in administrative proceedings. As Robert Reich has explained, the very fact of participation by a particular party shapes the debate before an agency.⁶⁹ Indeed, "the act of participation [turns] private concerns into appropriate subjects of . . . public action."⁷⁰

Reich's point leads directly to the propositions relied upon by the NRC to deny intervention in both Quivira Mining and International Uranium. In Quivira Mining, the NRC relied solely upon a conclusion that Envirocare was not arguably within the zone of interests of the statute under traditional judicial standing doctrine. In International Uranium, the NRC added the proposition that even if Envirocare satisfied the lenient zone of interests test, its competitive economic concern was not the sort of "interest" that triggered hearing rights under the AEA. If the statute is concerned only with radiological harm, as the NRC believed, it would distort the NRC's consideration of radiological safety issues to allow participation by a party interested only in protecting its own competitive advantage.

Professor Noah might well have recommended the NRC's approach had he not seen Office of Communication and the zone of interests test as insuperable obstacles to denying competitor petitions to intervene.⁷¹ More recently, in a more far-ranging examination of burdens of public participation, Professor Rossi has urged that we turn our attention to achieving balanced participation of appropriate interests, rather than "blindly increasing participation in agency decisionmaking."⁷²

The Envirocare result is appropriate. Although competitors may well suffer an injury that would support judicial standing, they should not be permitted to intervene in agency proceedings if their injury is unrelated to the purposes of the statute.

The NRC's mechanisms for achieving this result are also appropriate. In Quivira Mining, the NRC relied upon the zone of interests test to exclude Envirocare on the ground the company was not even arguably within the zone of interests of the AEA. Despite the Supreme Court's Air Courier Conference of America v. American Postal Workers Union, AFL-CIO⁷³ decision, the zone of interests test remains a lenient standard governing whether a party may be heard in court. If a petitioner cannot show that it is at least arguably within the zone of interests of the agency statute, there is a high likelihood that the petitioner's participation would distort and burden the agency's deliberations as envisioned by Robert Reich, Professor Rossi, and others.

In considering whether to rely upon the zone of interests test, however, it is important to recognize Professor Pierce's concern that the test is so malleable that decisions reflect judicial politics rather than legal principle.⁷⁴ Even assuming Professor Pierce is correct, the test remains useful for the purpose of excluding inappropriate interveners. The malleability of this doctrine arises from the fact that a challenger's interest need be only "arguably" within the zone of interest in order to qualify for standing. This opens the door for one Supreme Court majority to find standing for one industry in a statute regulating another industry,⁷⁵ while another Court majority could not find standing in [30 ELR 10602] two seemingly related statutes involving the same government agency.⁷⁶

That troubling contrast does not matter when the question is who should be heard before an agency, rather than who should be heard before a court. The purpose of the threshold test for administrative intervention is quite different from the purpose of standing doctrine as a barrier to judicial review. In the administrative context, the goal is to enhance the quality of the agency's information and deliberations without unduly burdening the agency or distorting the debate. To achieve that goal, it is important to broaden participation to include those whose interests the statute is designed to protect. That is what happened in Office of Communication and its progeny. Even the Air Courier decision does not come close to suggesting the exclusion of parties with interests comparable to those of the broadcast consumers in Office of Communication. Thus, although malleable, the zone of interests test is not likely to exclude those whose voices should be heard before the agency.

It is also important, however, as Robert Reich's comments suggest,⁷⁷ to exclude those who are likely to distort the agency deliberations because their real interests are unrelated to or even inconsistent with the purposes of the statute. The NRC achieved that goal through reliance upon the zone of interests test in Quivira Mining, and it could have done so as well in International Uranium had it stopped after that portion of its analysis. It is possible that in applying the zone of interests test, an agency might exclude a party who would be found to have judicial standing, but it is unlikely that an agency would exclude a party whose interests are directly protected by the statute.

By contrast to the deliberation enhancement purposes of administrative standing thresholds, the purposes of the tests for judicial standing have to do with the proper role of the courts in a democratic society⁷⁸ and with providing a final check on the legitimacy of agency action. It is appropriate, therefore, that judicial standing extend to all injured parties who might fall arguably within the zone of interests of the relevant statute, even if not all of these parties would qualify for participation in the agency's proceedings. At that point, the malleability of the doctrine is troubling because it might deny judicial standing to some who should be heard in court. The fact that they should be heard in court does not necessarily mean, however, that they would have made useful contributions to the agency's deliberations. Thus, the vagueness that is troubling in the context of judicial standing is not troubling in the context of administrative standing, and the zone of interests test could serve as a useful threshold for administrative standing.

Although an acceptable tool for judging petitions to intervene in administrative proceedings, the zone of interests test was designed to serve different purposes in a different context. As the preceding discussion suggests, the test for administrative standing should focus more clearly upon whether the petitioner in question would enhance or distort the agency's deliberations. As Judge Bazelon suggested more than 20 years ago, "a functional analysis of administrative standing is appropriate. Such an analysis would examine the nature of the asserted interest, the relationship of his interest to the functions of the agency, and whether an award of standing would contribute to the attainment of these functions."⁷⁹ Similar concerns are reflected in Recommendation No. 71-6 of the Administrative Conference of the United States, which applauded the inclusion of "additional perspectives" in administrative proceedings, but asserted that "public participation in agency proceedings should neither frustrate an agency's control of the allocation of its resources nor unduly complicate and delay its proceedings."⁸⁰

The NRC's decision in International Uranium speaks more directly to these concerns by specifically examining whether injury to Envirocare as an economic competitor constitutes an "interest" cognizable under § 189a of the AEA. Since the Act is designed to protect the public health and safety and common defense from hazards of radioactivity, the NRC concludes that Envirocare's economic interest is not sufficient to require the NRC to permit Envirocare to intervene in a proceeding to license a competing facility.⁸¹

The difference between this approach and reliance upon the zone of interests test is that the agency actually decides whether the statute specifically provides for the agency to consider the asserted interest in the particular decision. The purpose is to assure useful deliberations and an efficient decision, rather than to assure the legitimacy of agency's action. The broader, less demanding zone of interests test serves the latter purpose in judicial standing by assuring that even a party who is only "arguably" within the zone of interests will be able to bring violations of law to the attention of the reviewing courts. If the zone of interests test is applied to administrative standing, however, it risks burdening and distorting the agency's decisionmaking process.

Accordingly, the purpose of excluding inappropriate participants from administrative proceedings can be achieved by having the agency apply the "arguably within the zone of interests test" imported from judicial standing, or by having the agency directly assess whether the statute is actually intended to protect the asserted interest. The latter test is better because it speaks specifically to the concerns of the administrative process, rather than simply importing "arcane doctrine from another area of law."⁸²

Relying on Chevron Analysis—The Wrong Approach to Deciding Questions of Standing

The recognition that agencies should able to protect their deliberations by excluding inappropriate parties is not without its hazards. Office of Communication itself reveals the natural tendency of mission-oriented agencies to resist considering the interests of those who would be affected by their actions, even if the petitioners are the intended beneficiaries of the statute in question. Thus, in recognizing the agency's authority to exclude, it is important that the courts remain vigilant in assuring that agencies still admit those whose concerns should be heard.

[30 ELR 10603]

Unfortunately, by importing principles of Chevron deference into the standing arena, the D.C. Circuit has undermined both the courts' ability to insist that agencies hear all proper parties and its function of legitimizing agency decisions. Rather than simply confirming the NRC's decisions about the application of the zone of interests test or the scope of interests cognizable under the AEA, the court considered the matter to turn "on familiar principles of administrative law regarding an agency's interpretation of the statutes it alone administers."⁸³ In so doing, the court has considerably strengthened the agency's discretion to exclude those whose arguments it does not wish to consider. The result is an increasing concentration of power in the hands of the executive branch at the expense of Congress, to the detriment of the rule of law and the perceived legitimacy of agency decisions.

Chevron involved the U.S. Environmental Protection Agency's (EPA's) interpretation of a key substantive provision of the Clean Air Act (CAA).⁸⁴ The central question before the agency was how best to achieve the substantive goals of the CAA, through an interpretation that would impose rigid technology-forcing requirements, or through an interpretation that would allow industry to achieve internal efficiencies by using the "bubble" concept.⁸⁵ The Court conceived of the ambiguous statutory language as an intentional delegation to the agency to address the substantive problem.⁸⁶ Although Chevron has been criticized as undermining the rule of law,⁸⁷ it can be reconciled somewhat with democratic legitimacy concerns because it places the primary responsibility for resolving such policy questions in the hands of one of the political branches.⁸⁸

For at least two reasons, Chevron deference should not be accorded agency decisions concerning standing to intervene in agency proceedings. First, in the absence of any specific indication, there is no reason to believe that Congress intended to delegate to the agency decisions about who should be allowed to intervene. Second, deference to agencies on the question of whom they must hear threatens to undermine both the rule of law and the legitimacy of agency proceedings.

As to the matter of congressional intent, ambiguity on a matter of substance may logically lead to an inference that Congress intended to leave resolution of the issue to the agency. The same is not true of ambiguity on the question of who should be allowed to intervene, or for that matter on other procedural requirements the agency must follow. The very purpose of those requirements is to assure that the agency will hear from and respond to all relevant points of view. If a party is entitled to intervene in an agency proceeding, the agency must at least explain why it rejected that party's position.⁸⁹ Thus, the fact of participation will force the agency to address concerns that it might otherwise prefer to ignore.⁹⁰

If one of the goals of statutory intervention provisions is to assure that agencies hear and consider all relevant points of view, including those generally not considered by the agency,⁹¹ it would make no sense for Congress to delegate to the agency the decision about who should be permitted to intervene. Consider a statutory provision to the effect that the fox may not break into the chicken coop without giving all interested parties a chance to be heard. If we allow the fox to decide whose views to consider, he will always ignore the chicken's point of view. For that matter, the fox will probably also try to ignore the badger and the wolverine because he wants all of the chickens.

How is the court to decide on the intervention claims by the chicken, the badger, and the wolverine? After all, the term "interest" is ambiguous. If the purpose of the statute is to assure an equitable distribution of food, the term could refer to all animals interested in eating the chicken. But if one of the purposes of the statute is to provide a degree of protection to the health and safety interest of the chicken, or perhaps to the economic interest of the farmer, the term must be construed to encompass their interests, as well.

If we defer to the fox, there is no doubt how he will decide. Regardless of the purpose of the statute, he will deny intervention to the chicken and the farmer. A Congress concerned with protecting its statutory beneficiaries would not want the fox to decide the purpose of the statute or parties entitled to intervene in the decision.

The analogy is not perfect, primarily because it envisions the fox as both decisionmaker and actor, while in Envirocare the NRC was the decisionmaker, but Quivira Mining Company and International Uranium were the actors. If we shift the decisionmaking from the fox to the game warden, however, the analogy has greater force. After all, the game warden has responsibility for assuring a flourishing fox population and has long monitored the fox's needs. The game warden is also likely to listen to the entreaties of the badger and the wolverine, for whom he has similar responsibilities. But the game warden views the chicken primarily as a source of food for his charges, so he would prefer to ignore both the chicken and the farmer.

Congress could not rationally intend that the fox or the game warden decide whether the purpose of a statute encompasses protection of the chicken and farmer. Thus, the congressional intent underpinning of Chevron as to substantive decisions does not support the proposition that Congress intended to delegate the intervention decision to the agency.

Professors Gellhorn and Verkuil make a similar point in arguing that the courts should not apply Chevron deference to substantive jurisdictional questions that go beyond the [30 ELR 10604] agency's core functions and expertise.⁹² Concerned about agency self-interest in extending its reach, they argue that agencies offer no comparative institutional advantage in making decisions at the fringes of their core functions. Thus, while Congress might have intended deference as to core functions, it would not have intended to hand over to the agency the decision about the ultimate scope of agency authority. The argument is even stronger here, where the very point of the statutory provision is to assure that the agency will hear viewpoints that it would otherwise ignore.

In addition to violating congressional intent, the application of Chevron deference to administrative standing decisions undermines the rule of law and the legitimacy of agency decisions. Professor Farber argues, for example, that Chevron and the Court's newly contracted standing doctrine have contributed to an increased "slippage" between the standards set by agencies and the actual degree of compliance with those standards by regulated entities.⁹³ "Widespread noncompliance," he argues, "undermines the concept that good citizens—and even more so, governmental officials—obey the law."⁹⁴

Professor Farina expresses a similar concern in writing of the "cult of the Chief Executive," which she sees arising from Chevron and the contraction of standing.⁹⁵ As interest group representation is suppressed by these developments, she sees the loss of an important legitimating theory for administrative action.⁹⁶

Taking a somewhat different tack, Professor Pierce sees the Supreme Court's contraction of judicial review of agency action as "the evisceration of the principle of legislative supremacy," preventing the enforcement of policy decisions made by Congress.⁹⁷ Again, the central problem is a loss of legitimacy, in this case arising from the courts' increasing inability to enforce the congressional will. Pierce also predicts that as the Court restricts judicial standing to challenge agency actions, the lower courts will follow that lead in imposing "analogous restrictions on rights of intervention and participation in many of the agency proceedings that give rise to those actions."⁹⁸ As explained by Professor Farina, this would further undermine the legitimacy of agency decisions.

In light of these concerns, it is important that the independent judiciary remain as the final arbiter of who may participate in agency proceedings. This is not to say that the courts should meddle in agency procedures in the manner so troubling to the Court in Vermont Yankee.⁹⁹ In Envirocare itself, the D.C. Circuit relied upon Vermont Yankee in rejecting that proposition that agencies must follow principles of judicial standing in order to "perfect[] the right of review."¹⁰⁰ Vermont Yankee fully supports the court's decision on that particular point, but it has no bearing on the question of whether the courts should grant Chevron deference to agency interpretations of statutory terms governing intervention in agency proceedings. In Vermont Yankee, the Court soundly rejected the proposition that the courts could graft additional procedures on to the statutory minima of the Administrative Procedure Act. By contrast, the question here is how to interpret a procedural requirement clearly included within the statute. Where the question is not whether to add procedures, but what procedures are actually required by the statute, it is important that the judiciary have the final say. Otherwise, the agency can manipulate whom it wants to hear, and thus avoid having to explain decisions that may be contrary to interests Congress intended to protect in enacting the statute.

Conclusion

In 1975, having described at great length the interest group representation model of administrative law, Professor Stewart rejected that model as an all-encompassing theory of administrative law. He found it burdensome, expensive, and inadequate to solve the problem of agency discretion.¹⁰¹ He warned that "we must spurn superficial analysis and simplistic remedies, girding ourselves to shoulder, for the indefinite future, the intellectual and social burdens of a dense complexity."¹⁰²

Writing in a remarkably similar tone, Professor Farina argued more than 20 years later that we cannot simply adopt the newly emerged simple Presidential model to legitimize agency action. The new model obscures complex problems in several areas and threatens a loss of legitimacy that accompanies the decline in interest group participation.¹⁰³

As with Professor Stewart, her point is not to recommend a particular solution, but to insist that we must grapple with the complexity of the administrative state. The point applies directly to the Envirocare decision.

Concerned with burdens and distortions of inappropriate interventions, the Envirocare court relied upon Chevron in recognizing greater agency discretion to control intervention in their proceedings. Chevron also serves a simplifying function in that it is undoubtedly easier for a court to determine that an agency's decision is reasonable than it is for the court to take full responsibility for deciding the meaning of the statute.

Chevron simplicity is a luxury that the administrative state cannot afford in the context of standing to intervene in agency proceedings. It is appropriate to recognize that agencies may deny intervention to parties whose interests are not consistent with the goals and purposes of the statute and who were not of concern to Congress when the statute was enacted. Agencies may do this either by applying the zone of interest test of judicial standing, or by more precisely determining the parties that Congress envisioned as participants in agency proceedings. The result of such an agency decision may well be to exclude a party that would be entitled to [30 ELR 10605] judicial review of the ultimate decision. This is an appropriate result because the purposes of participation before the agency are different from the purposes of obtaining judicial review.

Whichever approach the agency takes, however, the courts may not avoid the complexity of grappling independently with the scope of the governing statute. By enhancing agency control of intervention, Envirocare achieves the goal of enhancing agency efficiency and avoiding distortion of the debate. By applying Chevron deference, however, the court misses the equally important goal of assuring the legitimacy of the administrative process.

By eschewing Chevron in this context, the court could achieve both goals at once. It need only confirm the agency's authority to exclude competitors and others whose interests do not come within the scope of the statute, and then conduct independent review of the agency's intervention decision. In many cases, including Envirocare, it is likely that the court would ultimately affirm the agency's denial. But history suggests that there are times when agencies do not want to listen to parties whose interests were of concern to Congress. In those instances, the courts must independently judge the claims of the parties.

1. 194 F.3d 72, 30 ELR 20143 (D.C. Cir. 1999).

2. Id. at 75, 30 ELR at 20144.

3. 309 U.S. 470 (1940).

4. The quoted language is from § 402(b) of the Federal Communications Act as it was at the time of the Sanders Bros. decision. Section 402(b) provided for an appeal to the D.C. Circuit by any person meeting this description.

5. Id. at 477. See also Scripps-Howard Radio Inc. v. FCC, 316 U.S. 4, 14 (1942), in which the court recognized the role of such "private litigants . . . only as representatives of the public interest," and Assoc. Indus. of New York State v. Ickes, 134 F.2d 694, 704 (2d Cir. 1943), vacated as moot, 320 U.S. 707 (1943), recognizing standing for industrial consumers to act as, "so to speak, private Attorney Generals."

6. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 2 ELR 20192 (1972); United States v. SCRAP, 412 U.S. 669, 3 ELR 20536 (1973).

7. 397 U.S. 150 (1970).

8. Id. at 153.

9. 257 F.2d 656 (D.C. Cir. 1958).

10. Office of Communication of United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966).

11. Id. at 1002-04.

12. 429 F.2d 725, 732 (D.C. Cir. 1970).

13. Id. at 737. This decision followed Virginia Petroleum Jobbers Ass'n v. FPC, 265 F.2d 364 (D.C. Cir. 1959), which held that "the right to appeal from an order presupposes participation in the proceedings which led to it." 265 F.2d at 368.

14. See, e.g., Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 (1976); Allen v. Wright, 468 U.S. 737, reh'g denied, 468 U.S. 1250 (1984); Lujan v. National Wildlife Fed'n, 497 U.S. 871, 20 ELR 20962 (1990); Lujan v. Defenders of Wildlife, 504 U.S. 555, 22 ELR 20913 (1992).

15. See Air Courier Conference of Am. v. American Postal Workers, AFL-CIO, 498 U.S. 517 (1991).

16. See Richard J. Pierce Jr., Lujan v. Defenders of Wildlife: Standing as a Judicially Imposed Limit on Legislative Power, 42 DUKE L.J. 1170, 1194 (1993).

17. 194 F.3d at 72, 30 ELR at 20143.

18. Id. at 74, 30 ELR at 20143.

19. Id., 30 ELR at 20144 (quoting In the Matter of Quivira Mining Co., 48 N.R.C. 1, 2 (1998) (emphasis added)).

20. 48 N.R.C. at 3. In the Matter of International Uranium (USA) Corp., 1998 WL 850192 (NRC) (1998).

21. 42 U.S.C. § 2239(a).

22. 48 N.R.C. at 1.

23. Id. at 4.

24. Id. at 6-13.

25. Id. at 12 (citing National Coal Ass'n v. Hodel, 825 F.2d 523, 530 n.9, 18 ELR 20039, 20043 n.9 (D.C. Cir. 1987)).

26. 48 N.R.C. at 12 (citing Lars Noah, Sham Petitioning as a Threat to the Integrity of the Regulatory Process, 74 N.C.L. REV. 1, 7 (1995)).

27. 1998 WL 850192 (NRC) (1998).

28. 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209.

29. 522 U.S. 479 (1998).

30. 1998 WL 850192 (NRC), at *3 (quoting Quivira Mining Co., 48 N.R.C. at 12).

31. Id.

32. See supra text accompanying notes 4-10.

33. 1998 WL 850192 (NRC), at *4.

34. See, e.g., Virginia Electric & Power Co. (North Anna Power Station, Units 1 & 2), ALAB-342, 4 N.R.C. 98, 105-06 (1976), in which the NRC denied intervention to a petitioner asserting only an economic injury. See also New Hampshire v. Atomic Energy Commission, 406 F.2d 170 (1st Cir. 1969), cert. denied, 395 U.S. 962 (1969), upholding the NRC's refusal, on similar grounds, to consider the nonradiological hazards of thermal pollution in licensing the Vermont Yankee nuclear reactor.

35. 1998 WL 850192 (NRC), at *4-5.

36. Id.

37. Quivira Mining Co., 48 N.R.C. at 4.

38. See Office of Communication of United Church of Christ v. FCC, 359 F.2d 994, 1000-06 (D.C. Cir. 1966); National Welfare Rights Org. v. Finch, 429 F.2d 725, 732 (D.C. Cir. 1970); Virginia Petroleum Jobbers Ass'n v. FPC, 265 F.2d 364 (D.C. Cir. 1959) (discussed by the Envirocare court at 194 F.3d at 78-79, 30 ELR at 20145-46.

39. 194 F.3d at 75, 30 ELR at 20144 (citing Warth v. Seldin, 422 U.S. 490, 498 (1975)).

40. Id.

41. Id. at 78, 30 ELR at 20145.

42. 359 F.2d at 994.

43. 429 F.2d at 725.

44. 265 F.2d at 364.

45. 467 U.S. 837, 14 ELR 20507 (1984).

46. 435 U.S. 519, 8 ELR 20288 (1978).

47. Envirocare of Utah, Inc. v. NRC, 194 F.3d 72, 78, 30 ELR 20143, 20145 (D.C. Cir. 1999).

48. 42 U.S.C. § 2239(a)(1)(A).

49. The court's reasons included the inherent ambiguity of the word, which could include academic, organizational, economic, aesthetic, conservational, or recreational interests, as well the proposition that it is not clear how agencies treated standing questions at the time the AEA was enacted. 194 F.3d at 76, 30 ELR at 20144.

50. Id. at 77, 30 ELR at 20145.

51. Id. at 79, 30 ELR at 20145-46.

52. Id. at 77, 30 ELR at 20145.

53. 359 F.2d at 1000-06.

54. Peter L. Strauss et al., GELLHORN & BYSE'S ADMINISTRATIVE LAW—CASES AND COMMENTS (9th ed. 1995) at 472 (hereafter GELLHORN & BYSE). This model was perhaps most fully described in Richard B. Stewart, The Reformation of American Administrative Law 88 HARV. L. REV. 1669 (1975).

55. GELLHORN & BYSE, supra note 54, at 472.

56. 359 F.2d at 1003-05.

57. Id. at 1006.

58. Id.

59. David L. Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 HARV. L. REV. 721, 765-66 (1968).

60. Id. at 767.

61. Stewart, supra note 54, at 1804-05. It should be noted that Stewart was discussing a model that included several elements in addition to increased rights to intervene, but those rights were at the core of the model.

62. Id. at 1813.

63. Richard A. Manso, Licensing of Nuclear Power Plant: Abuse of the Intervention Right, 21 U.S.F. L. REV. 121, 130 (1986).

64. Id. at 126-31.

65. Noah, supra note 26.

66. Id. at 5-20.

67. Id. at 64-72.

68. Indeed, both the NRC and the court cited his article in support of their decisions. Quivira Mining Co., 48 N.R.C. 1, 16 (1998), Envirocare, 194 F.3d at 77, 30 ELR at 20145.

69. Robert B. Reich, Public Administration and Public Deliberation: An Interpretive Essay, 94 YALE L.J. 1617, 1626 (1985).

70. Id. at 1627.

71. Noah, supra note 26, at 62-66.

72. Jim Rossi, Participation Run Amok: The Costs of Mass Participation for Deliberative Agency Decisionmaking, 92 NW. U.L. REV. 173, 248 (1997).

73. 498 U.S. 517 (1991).

74. Richard J. Pierce Jr., Is Standing Law or Politics?, 77 N.C.L. REV. 1741 (1999).

75. National Credit Union Admin. v. National Bank & Trust, 522 U.S. 479 (1998).

76. Air Courier, 498 U.S. at 517. As Professor Pierce explains, "The majority opinions in the two cases adopt totally inconsistent methods of determining whether a plaintiff has a cause of action. Either method may be defensible, but both methods cannot logically be correct." Pierce, supra note 74, at 1770.

77. Reich, supra note 69.

78. Warth v. Seldin, 422 U.S. 490, 498 (1975).

79. Koniag, Inc., Village of Uyak v. Andrus, 580 F.2d 601, 615 (D.C. Cir. 1978) (Bazelon, J., concurring).

80. 1 C.F.R. § 305.71-6 (1993).

81. International Uranium, 1998 WL 850192 (NRC), at *4-5.

82. Andrus, 580 F.2d at 616 (Bazelon, J., concurring).

83. Envirocare of Utah, Inc. v. NRC, 194 F.3d 72, 75-76, 30 ELR 20143, 20144 (D.C. Cir. 1999) (citing Chevron, U.S.A., Inc. v. Natural Resource Defense Council, 467 U.S. 837, 14 ELR 20507 (1984)).

84. The question was whether the statutory term "stationary source" referred, in effect, to individual smokestacks, or whether it could be extended to encompass a hypothetical bubble covering an entire facility that itself included many smokestacks. 467 U.S. at 840, 14 ELR at 20508.

85. Id. at 850-53, 14 ELR at 20510-11.

86. See Ernest Gellhorn & Paul Verkuil, Controlling Chevron-Based Delegations, 20 CARDOZO L. REV. 989, 1008 (1999) (arguing that Chevron deference derives from the intent of Congress in enacting vague statutory language).

87. Abner Mikva, How Should Courts Treat Administrative Agencies?, 36 AM. U. L. REV. 1, 7 (1986).

88. See Mark Seidenfeld, Bending the Rules: Flexible Regulations and Constraints on Agency Discretion, 51 ADMIN. L. REV. 429, 487 (1999).

89. Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29 (1983).

90. Seidenfeld, supra note 88, at 491-92.

91. This was precisely the situation in Office of Communication of United Church of Christ v. FCC, 359 F.2d 994, 1003-05 (D.C. Cir. 1966).

92. Gellhorn & Verkuil, supra note 86.

93. Daniel A. Farber, Taking Slippage Seriously: Noncompliance and Creative Compliance in Environmental Law, 23 HARV. ENVTL. L. REV. 297, 311 (1999). Professor Farber acknowledges that "slippage" has other causes, including the unrealistic demands of some statutes. Id. at 325.

94. Id.

95. Cynthia Farina, The "Chief Executive" and the Quiet Constitutional Revolution, 49 ADMIN. L. REV. 179 (1997).

96. Id. at 179-80, 186.

97. Pierce, supra note 16, at 1201.

98. Id. at 1194-95.

99. 435 U.S. at 519.

100. 194 F.3d at 78 (rejecting the reasoning of National Welfare Rights Org. v. Finch, 429 F.2d 725, 737 (D.C. Cir. 1970)).

101. Stewart, supra note 54, at 1804-05, 1813.

102. Id. at 1813.

103. Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 CHI.-KENT L. REV. 987, 988, 1027-30 (1997).