+ Checks and Balances on Environmental Decisionmaking: The Role of - - PowerPoint PPT Presentation

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Checks and Balances on Environmental Decisionmaking: The Role of Administrative Law

Sanne Knudsen, December 5, 2019 9th Annual CELP CLE

+An Abbreviated List of Regulatory Backsliding

◼ Power Plant Effluent Limits ◼ ACE Rule ◼ Repeal of Clean Water Rule ◼ Bears Ears National Monument ◼ Oil and Gas Emissions Standards ◼ Mercury and Air Toxics Rule ◼ Rescission of California Waiver

+The Role of Courts: A Historical Perspective

“[T]he courts no longer have the major role they once discharged in the direction formulation of the pertinent legal rules . . . . Primary responsibility has been vested in executive officials and independent regulatory agencies. But this is not to say that the courts do not have an important role. They have a role of review which has been of major significance. . . . [Judicial review] is conducted with an awareness that agencies and courts together constitute a ‘partnership in furtherance of the public interest’ and that the two are collaborative instrumentalities under which the ‘court is in a real sense part of the total administrative process, and not a hostile stranger to the office of first instance.’” Harold Leventhal, Environmental Decision-Making and the Role of the Courts, 122 U. Penn. L. Rev. 509 (1974)

+Checking Environmental Decisions

◼ Engaging in legislative advocacy ◼ Participating in the regulatory process ◼ Petitions for rulemaking (e.g. Mass v. EPA) ◼ Commenting on proposed rules (building the

administrative record)

◼ Seeking judicial review ◼ Citizen-suits to enforce statutory mandates ◼ Common law or constitutionally based causes of action ◼ Challenging agency decision-making through APA suits

Taxonomy of APA Suits Key Changes to Agency Deference Doctrines (Kisor v. Wilkie) Patterns of Success in Recent APA Challenges

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A Taxonomy of APA Suits

Types of Challenges

APA Organic Acts Cases

Factual Basis Legal Authority Issues Procedural Challenges Reasoning / Policy

Substantial Evidence (706(2)(E)) or Arbitrary & Capricious (706(2)(A)) Chevron/ Auer/ Skidmore De Novo (706(2)(D)) Arbitrary & Capricious (706(2)(A)

Substantive Challenges To Agency Action Substantive Challenges To Agency Inaction

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Review of Legal Authority

Types of Challenges

Legal Authority Issues

Agency interpretation of statute (Chevron)

Substantive Challenges To Agency Action

Agency interpretation of regulation (Auer) If neither Chevron nor Auer, then Skidmore.

+Agency interpretation of own regs: Before Kisor v. Wilkie

◼ Origins of Auer Deference

◼ Seminole Rock v. Bowles (1945)

◼ Historical Application

◼ Presumptive deference: ◼ Agency interpretations of their own

regulations are given “controlling weight unless [that interpretation is plainly erroneous.”

◼ Context-neutral ◼ Auer deferred to an interpretation

• ffered for the first time in an

agency’s amicus brief

◼ Criticisms Leading Up to Kisor

◼ Separation of powers concerns ◼ Risk for abuse ◼ Notice concerns

+ Talk America (2011)

“[W]hile I have in the past uncritically accepted [Auer], I have become increasingly doubtful

• f its validity.”

—Scalia, J., concurring

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Christopher v. SmithKline Beecham (2012)

“Our practice of deferring to an agency’s interpretation of its

• wn ambiguous regulations

undoubtedly has important advantages, but this practice also creates a risk that agencies will promulgate vague and

• pen-ended regulations that

they can later interpret as they see fit, thereby ‘frustrat[ing] the notice and predictability purposes of rulemaking.””

+ NEDC v. Decker (2013)

“Questions of Seminole Rock and Auer deference arise as a matter of course

• n a regular basis. The bar

is now aware that there is some interest in reconsidering those cases, . . . .”

—Roberts, C.J., concurring

+Key Changes to Agency Deference: Kisor v. Wilkie

Is the regulation ambiguous? If genuinely ambiguous, is the agency interpretation reasonable? Does the character and context of the agency interpretation entitle the interpretation to controlling weight?

+Key Changes to Agency Deference: Post Kisor v. Wilkie

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Defer after engaging in rigorous

• review. See, e.g., Am. Tunaboat

Ass'n v. Ross, 391 F. Supp. 3d 98 (D.D.C. 2019) Declining to defer because “the absence of genuine ambiguity in the rule’s meaning precludes us from deferring to DOE’s contrary

• interpretation. “ NRDC v. Perry,

940 F.3d 1072 (9th Cir. 2019) Declining to defer because the regulation is unambiguous after “exhausting all the traditional tools of construction” (and yet agreeing with the agency). Stand Up for California! v. DOI (D.D.C.

• Oct. 7, 2019)

+Key Changes to Agency Deference: Post Kisor v. Wilkie

Hawaii Wildlife Fund v. County of Maui Oral Arguments Heard Nov. 6, 2019

Photo credit: https://earthjustice.org/features/

+Patterns of Success

+Thank you!