Chevron For Dummies
With Neil Gorsuch’s nomination fight looming, the wider public is being introduced to a magical word. It is a “password” that has allowed bureaucrats to take over your life. It is a pivotal step forward in our conceptualization of the Administrative State. It is uttered with fear by law students, and whispered reverently in the halls of agencies. It is a gas station in your hometown. Even if italicization were not the proper way to write case names, it would still be italicized. It is Chevron.
Some of you may have heard this word outside of the gas station context before, but for most of you beyond the world of legal arcana, and for many initiates, it remains somewhat of a mystery. Most simply, it is a Supreme Court case. And like all Supreme Court cases, it is subject to change as the Court itself changes. That is why Judge Gorsuch’s nomination to the Court has spurred a new round of pontification on the question of whether that nine-member body will get rid of the Magic Word.*
My intention is to write three posts in the Chevron For Dummies series. This first piece will be a basic explainer of what Chevron is. Next, a short discussion of why people care about it (maybe a little too much). And last, what indications, if any, do we actually have that Gorsuch may vote to do away with it (as well as literally what does that look like, and what, if anything, can Congress do about it).
A quick note before diving in. All of these posts, but especially the first two, are not even attempting to be comprehensive discussions about the Chevron doctrine. There is enough scholarship on Chevron to sink a boat. While I think some of my legal friends will find these posts interesting in parts (especially if you slept through admin), it is intended for a wider audience — you know, parents and internet randos; the people who actually read this thing.
Part I: What is Chevron?
Chevron refers to a 1984 Supreme Court Case between Chevron (yes, that Chevron) and the Natural Resources Defense Council, or NRDC. The facts of the case have been vastly eclipsed by its deceptively simple holding, but in the interests of making you the person at the cocktail party who knows the real story, I’ll suffer the details.
The Clean Air Act treats new emission sources more strictly than old ones. The idea is essentially that retrofitting is harder than just building cleaner in the first place. So, when it was enacted, part of the overall strategy of the CAA was to make sure new facilities — power plants, manufacturing plants, oil refineries etc. — were as clean as possible; a sort of “stop the bleeding” approach. This meant that companies faced stricter (i.e. more expensive) pollution controls for “new or modified” sources of pollution, and that meant litigation: a company would have you believe that their recent smokestack repair was not a significant enough “modification” to fall under this provision, or that one “new” part of a facility did not mean that the facility overall was “new.” This former issue was litigated as late as 2007 in Environmental Defense v. Duke Energy Corp. (549 U.S. 561). The latter issue is essentially Chevron.
The Chevron story began in 1981, when the Environmental Protection Agency (EPA) issued a rule that allowed for “bubbling.” So long as any new part of a facility did not increase emissions for the facility overall, that new part could itself pollute more than would otherwise be allowed under the CAA new source provisions. In other words, Chevron (the company) wanted to treat a California refinery as a whole unit, existing under a “bubble,” thus allowing them to build new things without going through the burdensome (i.e. expensive) process attendant to building a “new source.” EPA approved. The NRDC did not.
It is worth pausing to discuss exactly what EPA did here. They did not decide that new sources should be regulated more strictly than existing sources under the Clean Air Act. Nor did they decide “modifications” should be treated as new sources. Congress did those things. EPA interpreted a phrase from the Clean Air Act — they determined that when Congress wrote that “new or modified” sources would have to go through more stringent review processes, Congress meant “entirely new facilities or improvements/repairs that increase overall facility emissions.” It is also worth pausing to note that Congress could have meant something different, and that words are meaningless symbols existing in a universe of shared assumptions. But seriously, “new” sources sounds pretty clear, except that when you start to think about it, it could mean a lot of different things.
So why did EPA decide “new” meant what it did? The answer is both complex and simple. The complex part: they may have considered the legislative history of the 1977 Clean Air Act amendments, the conference reports, committee reports, floor statements of sponsors or cosponsors; they may have discussed potential impacts of different decisions to post-hoc rationalize different Congressional intentions. The simple part: they are smarter than you and I, and they thought about this stuff more and know more about this stuff than most people, so Congress thought that they should get to decide what “new” meant
To be very crass, that is essentially what the Supreme Court held in Chevron. When the words of a statute are ambiguous, courts should defer to the interpretation put forth by the expert agency tasked with implementing that statute, unless their interpretation is “manifestly contrary to the statute.” That is, when the words of a statute are ambiguous, Congress probably wanted an expert agency to figure out what they (Congress) meant, because the Agency is filled with nerds who do this stuff for a living (Judges, on the other hand, are nerds who do lots of stuff for a living). You may hear law people refer to the “Chevron two step.” Step one: Are the words of the statute ambiguous? If they are clear, the agency must follow the explicit will of Congress. Step two: if the words are ambiguous, the court will defer to the expert agency’s interpretation unless it is “manifestly contrary to the statute.”
You might be wondering why any of this is a big deal. I’ll reserve my discussion of what makes Chevron so controversial for the next post, but I’ll give you two reasons it’s important and one why it’s not. First, it’s important because contrary to what a talking piece of paper told you in a third grade, this is actually the law that matters. Technically, Mr. Bill was correct: Congress passes laws, the Executive enforces them, and the Judicial Branch arbitrates disputes. But over the last 100 years,** Congress has passed increasingly complex legislation, become increasingly involved in the way that those laws are administered, and the agencies tasked with that administration have grown accordingly. Whether any of this is a good thing will be addressed in the next post, but it is the reality. Therefore, how agencies interpret Congressional directives is a huge part of modern American governance.
Second, until Chevron, the courts had been surprisingly silent about whether agencies interpret statutes at all. In fact, all of the branches had to a degree ignored this inconvenient truth. Inconvenient because the ideal separation of power requires that Congress writes the law and the Judicial Branch says what it is. The truth is that whoever does the administering is also doing some interpreting–and whoever interprets is in some real sense the principal arbiter of what that law actually is. Just as a falling tree in an empty forest may emit no sound, a “law” declared by Congress is aspirational until administered or enforced.^
One reason Chevron is not a big deal? It arguably didn’t change much. Here’s Justice Burger writing in 1971 (13 BC — before Chevron): “The administrative interpretation of the Act by the enforcing agency is entitled to great deference.” Griggs v. Duke Power Co., 401 U.S. 424, 433–34. Here’s Justice (Owen) Roberts in 1936 (48 BC): “Where the act uses ambiguous terms, or is of doubtful construction, a clarifying regulation or one indicating the method of its application to specific cases not only is permissible but is to be given great weight by the courts.” Koshland v. Helvering, 298 U.S. 441, 446. And here is the D.C. Circuit in 1914 (70 BC): “The courts give great weight to the long-continued practice of an executive department founded on a statute conferring powers of administration, but never a controlling weight save in cases of doubtful construction.” Luchs v. Christman, 42 App. D.C. 326, 330 (emphasis added). Almost seventy years to the day before Stevens’s allegedly earth shattering decision in Chevron, the D.C. Circuit just assumed that if the statute was ambiguous the “executive department[’s]” construction would receive “controlling weight.” There is a distinct possibility that the hullabaloo surrounding Chevron is much ado about nothing. (Keep this in mind for the final installment, as this matters for a consideration of what might happen if the Court overrules Chevron).
That is, hopefully, the bare bones of Chevron: if a statute is ambiguous, the expert agency tasked with administering that statute is given deference in their interpretation, unless they are clearly wrong about it. And it matters because unelected bureaucrats have destroyed American democracy, or maybe because it just makes sense. Stay tuned for Part II: Tales From Crypt (or The Chamber of Commerce), wherein I will do my best to make you terrified of the Chevron doctrine. For now, go forth and impress your friends at cocktail parties.
*This will be addressed in later posts, but you may be wondering “wait, this is Scalia’s seat, so if we weren’t concerned about Chevron going away before why would one more conservative justice change that calculus?” The short answer is that, contrary to popular opinion, there are some differences in “conservative” judicial thought, and Scalia was actually somewhat of a Chevron defender, if not an apologist. Some suggest that Gorsuch may not be.
**Common wisdom is that the administrative state grew within the past century or so, and explosively after World War II. I agree generally with that narrative, but I think it’s a bit of a conceit. Laws have been administered by bodies beyond the lawmakers for centuries, and the United States institutionalized executive agencies from its inception.
^I’m painting with a broad brush here, and legal philosopher types might be uncomfortable with this characterization. I can’t address all those concerns, but I will say that I am mostly referring to proactive, regulatory laws here, and not, for instance, criminal laws. Congress can say that you can’t kill someone, and that, arguably, creates a functioning law that prohibits murder, and the particulars (e.g. “but I didn’t mean to kill my wife”) will be adjudicated in court. If Congress says they want more permitting for “modified” sources, that really doesn’t mean much until EPA does something.