Industry takes aim at deference standard

Source: Ellen M. Gilmer, E&E News reporter • Posted: Monday, February 4, 2019

Electric utilities, energy producers and industry groups are urging the Supreme Court to strike down an agency deference rule they believe gives the executive branch too much power.

The Utility Air Regulatory Group, the National Mining Association, the American Farm Bureau Federation and others filed briefs yesterday criticizing what’s known as Auer deference, a legal standard that directs judges to defer to an agency’s reasonable interpretation of its own ambiguous regulation.

“The Court should abandon this doctrine, which would encourage agencies to be clearer in drafting regulations and allow courts to play their proper role in interpreting the regulatory burdens imposed on the public,” several groups told the Supreme Court in an amicus brief yesterday.

Named for a 1997 case, Auer is in the hot seat this year as the justices consider whether to overturn the precedent. The high court in December agreed to review Kisor v. O’Rourke, a case that centers on veterans’ benefits but turns on whether the deference standard should be scrapped (Greenwire, Dec. 10, 2018).

Critics of the growing reach of administrative agencies have long criticized Auer for, in their view, giving unelected officials too much power. The standard is related to the higher-profile Chevrondoctrine, which directs judges to defer to an agency’s reasonable interpretation of ambiguous laws.

Both arise often in environmental litigation. If the court ultimately agrees to strike Auer, federal judges will apply more scrutiny to agencies’ interpretations of their rules, and experts expect that agencies would in turn craft clearer regulations.

More than two dozen amicus briefs rolled in this week, the vast majority supporting the bid to overturn Auer.

The mining association and the farm bureau joined a brief with other organizations listing examples of court cases in which Auer led to confusion or outcomes they consider unfair.

Among the cases: a district court decision upholding Endangered Species Act habitat protections for piping plovers despite local governments’ allegations that the scope of land protections exceeded certain parameters of the Fish and Wildlife Service’s own regulations.

They also criticized the deference standard’s impact on decisions involving the Federal Energy Regulatory Commission and Agriculture Department conservation agreements with farmers.

Further, they argued, Auer encourages federal agencies to write ambiguous regulations so they are later entitled to deference in court. They say the Army Corps of Engineers, for example, “has a history of adopting and interpreting ambiguous regulations to expand Corps jurisdiction when not bound by the rigors of notice-and-comment” rulemaking.

Individuals involved in recent Clean Water Act litigation agreed, pointing to Auer‘s role in EPA and Army Corps action against them over the past decade. They argued the rule undermines the judiciary branch by taking judges out of the equation when it comes to determining the legality of an agency’s action.

In a separate brief, a collection of electric companies in the Utility Air Regulatory Group encouraged the court to reel in the deference doctrine because it has “been cited by EPA as authority to narrow broadly written legislative rules and retroactively impose civil liability in the billions of dollars, all under the guise of ‘interpreting’ ambiguous rules.”

A coalition of mostly conservative states also filed a brief urging the Supreme Court to ditch the standard.

Oral arguments in the case are set for next month.