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Chevron Step 1 – Determining whether Congress has clearly spoken to the precise question at issue

Chevron Step 1 – Determining whether Congress has clearly spoken to the precise question at issue. When a court reviews an agency’s construction of a statute which it administers:

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Chevron Step 1 – Determining whether Congress has clearly spoken to the precise question at issue

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  1. Chevron Step 1 – Determining whether Congress has clearly spoken to the precise question at issue • When a court reviews an agency’s construction of a statute which it administers: • Has Congress spoken to the precise issue? If Congress’s intent on the precise question at issue is unambiguously clear, court and the agency must give effect to that intent. • Two general ways of approaching what it means for Congress to “clearly” speak: • After throwing all possible interpretive tools at the question an answer emerges as correct (or doesn’t emerge at all) • After a relatively cursory glance at statutory text/structure or other resort to language’s meaning, an answer quickly (or doesn’t) appear as obvious • If the statute is silent or ambiguous to the precise question at issue, the court should defer to the agency’s construction as long as it is “permissible” or “reasonable.” • Courts have been reasonably deferential to agency constructions if they reach prong 2 analysis – more likely than not that agency will win.

  2. MCI Telecomm v. AT&T (p. 889) • Comm. Act, Sec. 203(a) common carriers must file tariff charges with FCC • Sec. 203(b) allows FCC to “modify any requirement” made under sec. 203 • In the 4th Report & Order, FCC made the tariff filing requirement for MCI optional because MCI was a non-dominant carrier. ATT challenged FCC’s 4th Report & Order as violating Section 203. • Applying Chevron: • Precise question at issue – What does “modify any requirement” mean? • How does SCT majority approach/decide whether Sec. 203 clearly spoke to the question at issue? What does that mean for the agency? • How does the dissent approach/resolve the precise question at issue? What would that mean for the agency?

  3. Babbitt v. Sweet Home Chapter . . . (p. 169) • ESA Sec. 9(a)(1)(B) – it is unlawful for anyone to “take [endangered species] within the US or its territorial sea” • ESA Sec. 3(19) – “Take” means “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect. . . .” • Loggers & Landowners challenged Sec’y of Interior reg defining “harm” to include “significant habitat modification or degradation where it actually kills or injures wildlife by impairing essential behavioral patterns . . .” • What is the precise question at issue? • How did majority approach/decide whether the ESA clearly defined “harm”? • How did the dissent approach/decide that issue?

  4. FDA v. Brown & Williamson Tobacco (p. 171) • Issue – To what extent does the FDCA allow the FDA to regulate tobacco products? • FDA had issued regulations preventing marketing of tobacco to minors claiming that nicotine/cigarettes were drugs/drug delivery devices regulable under its authority pursuant to the FDCA • Is the FDA’s interpretation plausible? • How does FDCA define ‘drug’ & ‘device’? Is a cigarette a “drug” delivery “device”? • On what sources does the majority rely to determine that the FDCA clearly does NOT give the FDA such authority? • Is the majority working awfully hard to make the statute “clearly” speak to the FDA’s action? Why? • Does Justice Breyer’s approach make more sense?

  5. Mass. v. EPA (p. 181) • CAA § 202(a)(1) – EPA administrator shall “by regulation” prescribe … standards applicable to “emission of any air pollutant” from new motor vehicles that “in his judgment cause, or contribute to, air pollution, which may be reasonably anticipated to endanger public health or welfare [includes effects on weather or climate per § 7602(h)]” • CAA § 7602(g) “air pollutant” is “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air.” • Precise Issue – Does the statute authorize EPA to regulate climate change? • How does the EPA interpret the statute? How does it craft it’s argument? • How does the majority respond? On what does it rely to interpret the statute? • How does Justice Scalia respond? Is his approach markedly different from the majority’s or just a different “read” on the statute?

  6. Chevron deference – a possible summary up to this point and some relationships to history • Chevron Step 1 – where the biggest battles are fought – issue is statutory interpretation • Cases reflect that Justices disagree over interpretive methodology & on whether the statute clearly spoke to an issue • BUT SCT effectively engaged in independent review of the statute (much like Hearst with pure legal questions) • Only if the statute did not clearly speak to the issue did justices think deference to the agency was appropriate – i.e., agency was better positioned to determine what particulars should be similar to reasons for deference re 2nd question in Hearst • Some thoughts on Chevron Step 1 • Does SCT now use a canon of construction NOT to give agencies power to interpret questions of great “economic and political” significance as implied in B&W? What does Mass v. EPA suggest? • Conflicting interpretive methodologies are just a fact of life – don’t get too bogged down in it as a “problem”

  7. Chevron Step 2 – application issues • Step 2 - If the statute is silent/ambiguous re the precise question, court should defer to the agency’s construction as long as it is “permissible” or “reasonable.” • Notes 2-3 (pp. 175-76) show that SCT has made little headway in defining what “reasonable” or “permissible” is • Like “hard look” review courts probably approach this with different senses re meaning of terms although they are pretty deferential to the agency for reasons we have seen – institutional competence, etc. • That said, this isn’t complete deference. Agencies must provide a minimal explanation of why interpretation is reasonable under the statute as a simple matter of advocacy • Chevron remains one of the better examples of how courts approach the reasonableness issue • Discussed how the agency had looked at the question for a long time, set forth reasons for using the new definition, why the dual definition wasn’t as good, reg would accomplish the purposes of the Act

  8. Does Chevron deference apply to all agency interpretations of law? No: By its own terms the Chevronrequired deference only to an “agency’s construction of a statute which it administers.”

  9. Examples of agency interpretations of law where Chevron deference does not apply: • Agency interprets the Constitution to allow a statutory delegation of powers. • Agency interprets an 8th Circuit judicial opinion to allow it to grant a permit waiver in an environmental adjudication. • Agency interprets its own rules to allow it to grant a permit waiver in an environmental adjudication. • Agency interprets the APA to allow it to forego notice and comment rulemaking.

  10. When does an agency administer a statute? • An agency administers a statute when that statute is so much a part of the agency’s mission that it can be said to be the agency’s special responsibility. • Having to interpret a statute while performing its duties, does NOT rise to the agency’s “special responsibility” – agencies interpret lots of statutes • On the other hand, a statute that clearly gives an agency the power to make (1) rules implementing the statute (e.g., FECA gives FEC the power to make rules regulating federal election campaigns) or to engage in (2) adjudicatory or enforcement authority under the statute clearly is part of an agency’s special responsibility • Note how multiple agencies sharing authority over a regulatory scheme can complicate the issue – p. 179 n.6

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