329

CHEVRON AND THE SHRINKING JUDICIAL ROLE IN

ENVIRONMENTAL LAW: WHY NOWIS THE TIME TO
REFORMCHEVRON
LAUREN SAAD
I. INTRODUCTION
Many factorsespecially recent decisions rendered by the Supreme
Court and the U.S. Court of Appeals for the D.C. Circuit
1
have
catalyzed the evolution of the judiciary`s role in environmental
administrative law. In the arena of statutory interpretation, this evolution
has originated in large part from the landmark Supreme Court decision
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.
2
Through Chevron, the Supreme Court changed the landscape of judicial
review in administrative law by creating a two-part test for determining
when deference to agency statutory interpretation is appropriate.
3
In
many ways, the doctrine 'vastly expanded the scope of agency
lawmaking and interpretive power, tending to diminish and complicate
the role of the judicial system in administrative law.
4
However, the
evolution of the doctrine`s application has also enabled courts, when they
are so inclined, to take on more authority than has traditionally been
appropriate in this area.
5
This doctrinal shift has yielded largely
inconsistent results in Chevron`s application, leaving room for courts to
mold the doctrine and its ensuing results to meet whatever ends they
seek.
1. See, e.g., Am. Elec. Power Co. v. Conn., 131 S. Ct. 2527 (2011); Coal. for
Responsible Regulation Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012); EME Homer City
Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012) (cert. granted sub nom. Am. Lung
Ass`n v. EME Homer City Generation, L.P., 133 S. Ct. 2857 (2013)).
2. 467 U.S. 837 (1984).
3. First, the reviewing court must look to the statute at issue and decide whether the
language is clear or ambiguous. If the language is clear, the analysis ends and the court
must uphold or strike down the agency action depending on whether the agency adhered
to the plain meaning of the statute. If the language is ambiguous, the court must proceed
to step two, in which it must determine whether the agency`s interpretation is reasonable.
The court will then either uphold or strike down the regulation based on that
determination. See id. at 842-45.
4. Linda Jellum, Chevrons Demise. A Survey of Chevron from Infancy to
Senescence, 59 ADMIN. L. REV. 725, 743 (2007). Justice Stevens, who authored the
Chevron opinion, intended it to 'merely |conIirm| existing law. Id. The doctrine`s actual
application and effects on this area have gone relatively far outside what was originally
expected. See infra Part III.B.
5. See infra Part III.B.
330 THE WAYNE LAW REVIEW [Vol. 60:329
Additionally, through its holding in American Electric Power v.
Connecticut,
6
hereinaIter 'AEP, the Supreme Court recently took very
firm steps away from involvement in the area of climate change litigation
by foreclosing the possibility of federal common law nuisance claims.
7
Many scholars support this decision on the basis that the legislature, for a
variety of reasons, is better situated to handle climate change issues than
the courts.
8
Thus this decision, even more so than Chevron, has drawn
attention to the debate about the appropriate role of the courts and has
brought about a widely agreed-upon consensus that with respect to
substantive environmental law issues, the court system`s role should be
minimal due to its lack of expertise in this highly specialized area of
law.
9
While the AEP decision dealt with a relatively narrow area within
environmental law,
10
this decision took a blatant step away from judicial
involvement in this subset of the law.
11
Though experts correctly point
out that the courts may lack relative capacity to effectively handle such
issues, the fundamental truth remains that checks and balances mandate
an involved, functional judiciary. Thus, courts should heed the omen that
is AEP and begin to explore ways to re-harness participation in
environmental law.
This Note explores the state of the Chevron doctrine as applied in the
area of environmental law, as well as arguments both for and against a
revival of the doctrine, arguing ultimately that the doctrine as it currently
stands yields inconsistent results and needs reform. Considering the
appropriate role of the judiciary within this area of law, especially in
light of the Supreme Court`s AEP decision, this Note suggests that the
need for Chevron reform presents an opportunity for the Court to
consider taking back some of its authority in the area of environmental
law.
While the nuanced realm of environmental law often requires
expertise, by evading the dictates of Chevron, the courts can maintain a
level of authority in this area through a vehicle with which they are
familiarstatutory interpretation. Doing so would allow courts to play a
meaningful role in environmental law and compensate for other areas
where this authority has been surrendered, such as climate change
6. 131 S. Ct. 2527 (2011) [hereinafter AEP].
7. Id.
8. See infra Part III.A.
9. See infra Part III.
10. The decision is limited to federal nuisance actions relating specifically to climate
change. See AEP, 131 S. Ct. at 2527.
11. See infra Part III.
2014] CHEVRON AND THE SHRINKING JUDICIAL ROLE 331
nuisance litigation, thus restoring a sense of balance between the
branches.
II. BACKGROUND
A. The Chevron Doctrine
1. Pre-Chevron
Before Chevron, judges enjoyed broader oversight of agency
decisions and generally had more investigative authority into these
decisions. In a 1974 article discussing the appropriate position of the
courts in environmental law, Harold Leventhal focused his efforts on
examining ways to ensure that judicial review takes a middle ground
between honoring agency expertise and allowing courts to oversee
without overreaching.
12
To Leventhal, this required scrutiny of agency
action only to the extent of ensuring in-depth, complete, and rational
agency analysis.
13
On its face, this balanced approach allowed more
judicial interference than Chevron deference because it required courts to
probe deeper into the methodology employed by the agency.
14
12. Harold Leventhal, Environmental Decision Making and the Role of the Courts,
122 U. PA. L. REV. 509 (1974).
13. Id. Leventhal notes, 'The courts have a role in assuring at the least a good Iaith
agency effort to fulfill [congressional objectives] . . . More and more this is likely to
mean close judicial scrutiny of a document to see that it fully discloses and analyzes the
environmental impacts oI a proposed action. Id. at 525. Leventhal`s writing Iocuses both
on judicial review of agency statutory interpretation as well as judicial review of agency
action in general, which involve slightly different standards of review. This Note explores
only the former, as exercised in the particular area of environmental law. However, as
Leventhal notes, the balance he calls for in reviewing both agency action generally and in
reviewing agency statutory interpretation often fails to amount to anything more than
traditional hard-look review depending on how the judge wants to look at it. Id.
14. Leventhal suggests that increased judicial review comes with the territory of
environmental law in general, describing that
The 'paramount importance attributed to environmental values serves to grab
the court initially and causes the court to be especially attentive in its review
and, where necessary, to delve into the decisional processto see whether the
Government has acted to give due protection to the environment. But
[a]lthough this inquiry . . . is to be searching and careful, the ultimate standard
of review is a narrow one. The Court is not empowered to substitute its
judgment for that of the agency.
Id. at 514. In reaching this conclusion, Leventhal relies particularly on the Supreme
Court`s 1971 decision Citizens to Pres. Overton Park, Inc. v. Volpe. Id. at 512 (citing
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)). In this case,
involving the protection of public parkland, the Court held that the Secretary of
Transportation had discretion to determine what certain words meant as used in the
332 THE WAYNE LAW REVIEW [Vol. 60:329
Several pre-Chevron environmental law decisions exemplify this
early type of review. In Environmental Defense Fund, Inc. v. Corps of
Engineers,
15
the Eighth Circuit held that its role was not to ensure that
the agency rationally interpreted the statute at issue, but rather that the
court could intervene whenever it found that the agency performed an
arbitrary balancing of interests relative to making decisions under the
statute.
16
This review looks closer to de novo or hard-look review than
Chevron deference, allowing courts to look deeper into the agency`s
process and rationale, and seemingly, to exercise greater influence.
17
However, use of this standard in pre-Chevron decisions seemed to vary
depending on the nature of the agency action.
18
In some instances, the
courts employed this standard loosely and indeed, even in Environmental
Defense Fund, the court, after pointing out the importance of a delicate
balance, let the agency action stand.
19
When employing this standard in City of New York v. United
States,
20
Judge Friendly noted, '|w|e seriously question whether much
remains for a reviewing court, because although the agencies had a duty
of good faith analysis in their actions, this good faith needed only be
subjective, thus rendering the requirement almost always satisfied.
21
Federal Highway Act of 1978. Leventhal, supra note 12, at 513. However, the Court also
held that on remand, the district court would have a duty to conduct a thorough inquiry
and that the discretion given to the Secretary was not meant to 'shield his action Irom a
through, probing, in-depth review. Id. at 513 (citing Overton Park, 401 U.S. at 415).
15. 470 F.2d 289 (8th Cir. 1972).
16. Leventhal, supra note 12, at 528 (citing Envtl. Def. Fund, 470 F.2d 289)
(explaining that 'the Eighth Circuit held that the [act at issue] required a good faith
balancing of competing interests, and that the action contemplated by the mission agency
could be enjoined when its balance was arbitrary). This case involved the National
Environmental Policy Act`s requirement that environmental impact statements be filed
preceding the start of new projects. The court agreed with the agency that the drafter of
an impact statement need not be objectively impartial in order to meet the Act`s good
faith requirements. Envtl. Def. Fund, 470 F.2d at 295.
17. De novo review, at its most pure, examines an issue as if it has never before been
heard and is considered the least deferential standard of review. For a reviewing court to
gain any similar authority under Chevron, the statute at issue must be ambiguous and the
court must Iirst Iind that the agency`s interpretation oI that statute is unreasonable. See
Leventhal, supra note 12, at 513-15; supra note 13.
18. One oI the main lines oI Leventhal`s argument, Ior example, was that courts were
more likely to exercise authority rather than defer in the sensitive area of environmental
law than in other areas of law. As noted, to Leventhal this did not amount to much more
than hard look review but that, at any rate, is less deferential than Chevron. See
Leventhal, supra note 12, at 514; supra note 13.
19. Leventhal, supra note 12, at 514.
20. 344 F. Supp. 929 (E.D.N.Y. 1972).
21. Leventhal, supra note 12, at 527-28 (citing City of New York, 344 F. Supp. at
940).
2014] CHEVRON AND THE SHRINKING JUDICIAL ROLE 333
Finally, the Tenth Circuit exercised even milder agency scrutiny in
National Helium Corp. v. Morton,
22
where the court found that there was
no place for its own review of the agency`s substantive decision.
23
Thus,
while courts arguably had greater authoritative power pre-Chevron, they
certainly did not use it extensively.
Still, in other cases, courts did take advantage of this authority. For
example, in Calverts Cliffs Coorainating Committee, Inc. v. U.S. Atomic
Energy Commission,
24
the D.C. Circuit found that it had the power to
compel agency compliance with the National Environmental Policy Act
of 1969 and that the commission`s rules precluding judicial review of
such action violated the Act.
25
In Citizens to Preserve Overton Park v. Volpe,
26
the Supreme Court
reviewed agency action for an abuse of discretion and, as in Calverts
Cliffs, inquired into the agency`s decision-making process to reach its
own conclusions about whether this decision was proper.
27
As Leventhal
noted, this body of case law centers around a common theme of courts
attempting to ensure that federal agencies exercise 'principled
integration and balanced assessment in their decision-making.
28
He also
noted that these 'decisions in composite stand for the two sides of the
coin of judicial reviewto ensure supervision of the agencies and to
refrain from excessive intrusion.
29
Thus, in environmental law`s early
years, courts enjoyed at least some room to exercise greater, broader
judicial intervention in agency decision-making. However, Chevron,
with its bipartite deference test, purported to change this.
30
22. 455 F.2d 650 (10th Cir. 1971).
23. Id. The court declared that the National Environmental Protection Act was merely
procedural and that as such, it would not inquire into the decisions and policies set forth
under its mandates. Id. at 656-57. Instead, agencies met the Act`s requirements merely by
formulating and enforcing any such policies at all. Id.
24. 449 F.2d 1109 (D.C. Cir. 1971).
25. Id. The Act qualiIied agency duties by the phrase 'to the Iullest extent possible.
Id. at 1114. The court explained that this did not 'make NEPA`s procedural requirements
somehow discretionary,` but rather, the phrase set 'a high standard Ior the agencies . . .
which must be rigorously enIorced by the reviewing courts. Id.
26. 401 U.S. 402 (1971).
27. Leventhal, supra note 12, at 513 (1974) (noting that the court considered primarily
'whether the decision was based on a consideration oI the relevant Iactors).
28. Id. at 555.
29. Id. at 521.
30. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
334 THE WAYNE LAW REVIEW [Vol. 60:329
2. Chevron
The Supreme Court decided Chevron in 1984.
31
Justice Stevens, with
environmental law in mind, created a two-step test for whether a court
should get involved with agency statutory interpretation.
32
Ultimately,
the Court intended for this test to 'reallocate primary interpretive
responsibility for resolving statutory ambiguity from the courts to the
agencies,
33
requiring courts to defer to an agency any time Congress has
clearly spoken on an issue.
34
However, in 2001, the Supreme Court
decided United States v. Mead Corporation,
35
which further refined the
Chevron doctrine to require deference, additionally, upon a finding that
Congress intended that the agency rather than the courts resolve the
ambiguity.
36
While the original Chevron doctrine appeared a much-needed
triumph for agency decision-making authority, time has shown that the
doctrine often yields less than consistent results, especially after Mead.
37
Indeed, some scholars suggest that the doctrine is dying or has already
died.
38
Others suggest it needs to be modified in order to fit a mold that
would provide stronger grounds for justification of the doctrine.
39
Moreover, some suggest that the doctrine fails altogether because it
conflicts with the substantive canons of statutory interpretation,
40
and
31. Id.
32. See id; see also supra note 3.
33. Note, Chevron and the Substantive Canons: A Categorical Distinction, 124
HARV. L. REV. 594, 595 (2010).
34. Id.
35. 533 U.S. 218 (2001).
36. Note, supra note 33, at 595.
37. Mead Corp., 533 U.S. 218.
38. See, e.g., Jellum, supra note 4, at 743. She concludes that Chevrons 'Iirst step
has become more text based, and that as a result, 'the Court has begun to limit
Chevrons application. Today, Chevron applies in fewer cases than in the past because
the Court cites it less frequently, because the Court created step zero, and because the
Court rejected, in some cases, the implicit delegation doctrine. Id. at 782.
39. See, e.g., Note, Justifying the Chevron Doctrine: Insights from the Rule of Lenity,
123 HARV. L. REV. 2043 (2010). The author argues that since its inception, the Court has
failed to provide adequate justifications or rationale for the Chevron doctrine, that the
Court`s decision in United States v. Mead Corp. failed to rehabilitate the doctrine, and
that the doctrine would be better rehabilitated 'through an enriched understanding oI the
political accountability rationale for Chevron because 'Chevron deIerence is best
understood as maintaining the traditional constitutional balance in which policy
discretion is kept out of the hands of the politically unaccountable judiciary, sometimes
through the restraint oI the judiciary itselI. Id. at 2045.
40. See, e.g., Note, supra note 33 at 594-95 (arguing that while Chevron is often
consistent with canons that tend to constrain discretion, it is often unjustifiably restrictive
in comparison with canons that tend to channel discretion).
2014] CHEVRON AND THE SHRINKING JUDICIAL ROLE 335
others still suggest that in order to save Chevron, it needs to be reduced
from a hardline requirement and treated, instead, more like a canon
itself.
41
At any rate, empirical studies of how Supreme Court Justices
actually employ the doctrine falsify 'the proposition that any of the
Justices treats Chevron and the Court`s other announced deference
regimes as precedents strictly binding on them as a matter of stare
decisis.
42
Instead, there has emerged a pattern of differing application
on a case-by-case and Justice-by-Justice basis; in any given case, it
appears, Justices will apply the doctrine differently or not at all.
43
Yet while the Chevron doctrine is shaky, it certainly has changed the
face of judicial review of agency decision-making. Whereas pre-Chevron
courts used their own judgment and investigation in deciding whether to
invalidate or even review an agency action, congressional intent, in one
way or another, limits the authority of post-Chevron courts to engage in
statutory interpretation.
As indicated by the above-discussed scholarly reactions to Chevron
and the decisions that followed it, the state of the doctrine, as well as its
applicability, have proven unclear. In an article arguing that Chevron is
subsiding, Linda Jellum suggests that the inquiry has shifted 'from what
did Congress intend` to are the words clear,`
44
and at least in some
instances, this seems to be true. For example, in Massachusetts v.
Environmental Protection Agency,
45
the Supreme Court found that 'there
is no reason, much less a compelling reason, to accept the Environmental
Protection Agency (EPA)`s invitation to read ambiguity into a clear
statute, and went on to hold that its own broad interpretation of the
'clear statutory meaning of the word 'pollution gave the EPA
authority to regulate greenhouse gas emissions from vehicles, despite the
fact that the EPA itself had interpreted the definition more narrowly so as
41. See, e.g., William N. Eskridge, Jr. & Connor N. Raso, Chevron as a Cannon, Not
a Precedent: An Empirical Study of What Motivates Justices in Agency Deference Cases,
110 COLUM. L. REV. 1727 (2010). After presenting an in-depth empirical analysis of the
doctrine, the authors suggest that rather than applying Chevron in accordance with a
bright-line standard, 'context-saturated standards Ior applying the doctrine may yield
'greater predictability and law-like behavior among judges. Id. at 1727.
42. Id. at 1734.
43. Id. at 1727. The authors explain that Chevron has become a Ilexible '|rule| oI
thumb or [presumption] deployed by the Justices episodically and not entirely
predictably, rather than |a binding rule| that the Justices apply more systematically, and
that it is 'oIten deployed in distinctive ways by individual Justices, reIlecting each
Justice`s particular normative vision. Id.
44. Jellum, supra note 4, at 781.
45. 549 U.S. 497 (2007).
336 THE WAYNE LAW REVIEW [Vol. 60:329
to prohibit such regulation.
46
Later, in Coalition for Responsible
Regulation v. Environmental Protection Agency, the D.C. Circuit
stringently adhered to the Court`s holding in Massachusetts v.
Environmental Protection Agency, affirming the EPA`s authority to
regulate greenhouse gas emissions from vehicles.
47
In many recent cases, courts refused or failed to find textual clarity.
Yet despite this refusal, at least in some instances, courts have not ceased
from affording increasingly broad deference to the agencies. In
Environmental Defense v. Duke Energy Corp.,
48
the Supreme Court, in
reviewing litigation over the meaning of the word 'modify under the
Clean Air Act, upheld the EPA`s interpretation of the word, even though
that interpretation was inconsistent with the EPA`s own interpretations of
the word as contained in other parts of the Act.
49
In PSEG Energy Resources, LLC v. Federal Energy Regulatory
Commission,
50
the D.C. Circuit remanded an order from the Federal
Energy Regulatory Commission (FERC), finding that Congress had not
clearly expressed its intent in the statute at issue despite FERC`s
contention to the contrary.
51
Since FERC maintained that the words were
clear, the D.C. Circuitrather than proceed to Chevron step two
remanded the case to the agency so that it could reexamine the issue 'in
light of the ambiguity.
52
Thus, even when the court could not find
clarity in the language, it still insisted upon handing off its interpretive
power to the agency. Rather than proceed to step two of Chevron to
determine whether the agency`s interpretation was reasonable, the court
instead gave FERC a second bite at the apple by simply remanding.
53
46. Id. at 531 (emphasis added).
47. 684 F.3d 102 (D.C. Cir. 2012).
48. 549 U.S. 561 (2007).
49. Id. at 576. The Clean Air Act contains a provision requiring that power plants
obtain permits upon 'modiIying the plant. While modiIication was already understood
to mean any physical change that led to increased carbon emissions, it was disputed in
this case whether increased emissions should be measured based on a yearly versus
hourly standard. Id. The Court looked at congressional intent as well as other parts of the
Clean Air Act, ultimately concluding that the appropriate interpretation included yearly
emissions. The Iact that other, similar provisions oI the act had deIined 'modiIy
pursuant to an hourly standard did not make this interpretation per se unreasonable
EPA`s interpretations needed merely to survive a Chevron analysis. Id.
50. 665 F.3d 203 (D.C. Cir. 2011).
51. Energy Bar Ass`n, Report of the Judicial Review Committee, 33 ENERGY L.J. 301,
306 (2012).
52. Id. at 307. The court Iurther explained, '|A| remand will permit the Commission
to determine whether, knowing that it has more discretion than it thought it had, PSEG`s
position would be an appropriate way to interpret the unrevised language as well. Id.
(quoting PSEG Energy Res. & Trade LLC, 665 F.3d at 209).
53. The court cited its own precedent for taking this route, noting that
2014] CHEVRON AND THE SHRINKING JUDICIAL ROLE 337
In other cases, such as North Carolina v. Environmental Protection
Agency
54
and E.M.E. Homer City Generation, L.P. v. Environmental
Protection Agency,
55
the D.C. Circuit used a textualist approach to go the
other way and strike down agency action. In North Carolina v.
Environmental Protection Agency, the 'common theme of the court`s
decision was that EPA had failed to connect the . . . regulations with the
statutory authority created by the Act.
56
The panel looked at the plain
meaning of the Clean Air Act and read it narrowly so as to invalidate the
EPA`s own, broader interpretation of the Act.
57
The panel did the same
thing in Homer City, using its own narrow reading of the Act to
invalidate the EPA`s broader interpretation.
58
Interestingly, given the
complexity of the issues and statutes involved in both of these cases, it is
unclear whether the EPA`s interpretations of the Clean Air Act were so
flawed that the courts could have correctly deemed them unreasonable
under Chevron. Indeed, this is especially true for Homer City, which
[W]hen an agency erroneously contends that Congress` intent has been clearly
expressed and has rested on that ground, we remand to require the agency to
consider the question afresh in light of the ambiguity we see . . . We do so
because, under step 2, we examine whether the agency has reasonably
exercised its discretion. But when the agency`s decision was not based on |its|
own judgment but rather on the unjustiIied assumption that it was Congress`
judgment that such [an outcome is] desirable or required, the agency has not
exercised that discretion at all.
PSEG, 655 F.3d at 209 (citing Cajun Elec. Power Coop., Inc. v. FERC, 924 F.2d 1132,
1136 (D.C. Cir. 1991); Transitional Hospitals Corp. of La., Inc. v. Shalala, 222 F.3d
1019, 1029 (D.C. Cir. 2000)) (internal quotations omitted).
54. 531 F.3d 896 (D.C. Cir. 2008).
55. 696 F.3d 7, 7 (D.C. Cir. 2012) (cert. granted sub nom. Am. Lung Ass`n v. EME
Homer City Generation, L.P., 133 S. Ct. 2857 (2013)).
56. JIM ROMANSKI, SIPRAC CO-CHAIR BRIEF, SUMMARY OF CAIR DECISIONS 3
(2009), available at
http://www.ct.gov/deep/lib/deep/air/siprac/2009/summary_of_cair_remand_[compatibilit
y_mode].pdf.
57. See North Carolina, 531 F.3d at 896. This case involved the validity of the Clean
Air Interstate Rule, which employed a cap-and-trade program to prevent emissions from
upwind states Irom aIIecting downwind states` abilities to meet their own emission
standard under the Clean Air Act. Id. The Court found that while the Rule did, to some
extent, reduce emissions, it failed to comply with or meet, what the Court saw, as the
goals of the Clean Air Act, thus invalidating it. Id.
58. See Homer City, 696 F.3d at 7. The court interpreted the Good Neighbor
Provision of the Clean Air Act to mean that the EPA was required to give states an
opportunity to implement their own plans for emission reduction before it could issue its
own plans. Id. Since the EPA`s Transport Rule did just that, the court used this
interpretation to strike it down as overstepping the reach oI EPA`s authority. Id.
338 THE WAYNE LAW REVIEW [Vol. 60:329
included a lengthy dissent as well as multiple amici in support of the
EPA.
59
The Fourth Circuit reached a similar result in Piedmont Environment
Council v. Federal Energy Regulatory Commission.
60
In this case, the
statute at issue gave FERC permission to override state action regarding
permits for electric transmission line siting when that state had withheld
permission for more than one year after filing of the application.
61
The
question was whether a state 'withheld approval of an application under
the Federal Power Act when, within one year, it outright denied the
application.
62
FERC interpreted the statute to mean that the word
'withhold includes an outright denial, thus giving it authority to
override state action.
63
However, the majority disagreed, finding that
under Chevron step one, the statute unambiguously did not include
denial within the meaning of 'withhold.
64
The dissent, however, also
stopped at Chevron step one, claiming that the statute unambiguously did
include a denial within the meaning of 'withhold, suggesting that
perhaps the statute was not as clear as the court thought, calling into
question whether Chevron was applied appropriately and whether it
served a meaningful use.
65
The subjective nature of the Chevron step one
inquiry allowed the majority to override FERC, while the dissent would
have used the same inquiry as a vehicle for affording FERC more
authority, thus illustrating the complications with the doctrine.
While these cases represent only a small percentage of recent
administrative law decisions, they illustrate that the scope of the Chevron
doctrine remains undefined. As Jellum argues, one recent trend looks
only at whether the words themselves are clear rather than Congress`s
intent, and thus takes interpretive and lawmaking authority away from
the agencies.
66
Moreover, even when the courts do identify ambiguities
in the law, the cases above illustrate that the courts may find other ways
59. See id. That is not to say that the courts` substitutionary interpretations oI the Acts
at issue in these cases are wrong. Rather, these pieces of legislation are highly complex,
dense, and specialized, thus lending themselves to many possible, rational interpretations.
It is, therefore, difficult to say with certainty whether agency interpretation of this
legislation is necessarily unreasonable so as to fail under the Chevron test; and this
inherent uncertainty leaves ample room for courts to require agency action to yield to the
whims oI the court`s own reasoning.
60. 558 F.3d 304 (4th Cir. 2009).
61. Id. at 313.
62. Id.
63. Id.
64. Id.
65. Id. at 322-23 (Traxler, J., dissenting).
66. Jellum, supra note 4, 781.
2014] CHEVRON AND THE SHRINKING JUDICIAL ROLE 339
to weaken agency authority. However, it is not apparent that courts, in
exchange, have reclaimed this authority for the judicial system.
On the one hand, courts can exercise increased authority by deciding
themselves whether the statutory language is clear, rather than adhering
to the original Chevron idea of looking at whether, if the language is
unclear, Congress intended the courts to interpret these ambiguities.
67
On the other hand, though, especially in North Carolina, Homer City,
and PSEG, the courts only take this hands-on approach far enough to
point out where the EPA went wrong, tell them to do it again, and
remand the decisions to the agency.
68
Where a court would normally
render a decision and then issue a remedy, these cases lack a remedy.
69
Thus, while in some ways the courts have exercised a stronger hand in
statutory interpretation, they have used it as a vehicle through which to
move away from this area of law in general and to instead adopt a very
hands-off approach as to the specifics of the agency rulemaking over
which they exercise control.
B. Nuisance Litigation
In addition, the Supreme Court recently put more distance between
the judiciary and environmental law with its decision in AEP, where it
held that potential litigants to federal nuisance suits with regards to
climate change lack standing, thus barring any federal nuisance litigation
in this area.
70
In this additional way, the courts have removed themselves
from involvement in environmental law. Between this removal and the
confusion arising out of Chevron, the questions remain regarding what is
left of the courts` role in environmental law, where that role is headed
given the courts` recent departures from involvement in this area, and
whether this is the right direction.
AEP sets forth strong arguments against the federal common law as
an avenue to remedy in climate change nuisance actions. While the Court
67. For example, in Massachusetts v. Environmental Protection Agency, North
Carolina v. Environmental Protection Agency, and Homer City, the court used its own
construction of the plain language oI the statute to invalidate the agency`s inconsistent
interpretations. See Massachusetts v. EPA, 549 U.S. 497, 497 (2007); North Carolina v.
EPA, 531 F.3d 896, 896 (D.C. Cir. 2008); EME Homer City Generation, L.P. v. EPA,
696 F.3d 7, 7 (D.C. Cir. 2012) (cert. granted sub nom. Am. Lung Ass`n v. EME Homer
City Generation, L.P., 133 S. Ct. 2857 (2013)).
68. See North Carolina, 531 F.3d at 896; Homer City, 696 F.3d at 7;
PSEG Energy Res. and Trade, LLC v. FERC, 665 F.3d 203, 209 (D.C. Cir. 2011).
69. See North Carolina, 531 F.3d at 896; Homer City, 696 F.3d at 7; PSEG, 665 F.3d
at 209.
70. AEP, 131 S. Ct. 2527 (2011).
340 THE WAYNE LAW REVIEW [Vol. 60:329
pointed to precedent and displacement
71
as the basis for its decision,
72
it
also carefully pointed out its own comparative lack of expertise in
handling such matters as a policy rationale for barring federal nuisance
litigation.
73
Experts have agreed with this notion, noting additional
factors such as the possibility that 'opening the door to climate-based
nuisance suits could unleash a torrent of litigation.
74
Moreover, while
the Court failed to foreclose the possibility of state nuisance claims for
climate-change litigation, scholars have advised against it for many of
the same reasons.
75
For those still interested in bringing state law claims,
a wealth of potential hurdles may stand in the way, such as issues of
standing, political question, jurisdiction, choice of law, and dormant
Commerce Clause.
76
III. ANALYSIS
A. The Nuisance Problem
There may yet be good reason to entertain the possibility of nuisance
suits,
77
and proponents argue that this point is an important one. As
71. Id. The Court found that the Clean Air Act and the EPA action it authorizes
'speaks directly` to emissions oI carbon dioxide Irom |power| plants, and that as such,
displaces 'any Iederal common law right to seek abatement oI carbon-dioxide emissions
from fossil-fuel fired power plants. Id. at 2537.
72. See Jonathan H. Adler, The Supreme Court Disposes of a Nuisance Suit:
American Electric Power v. Connecticut, 2011 CATO SUP. CT. REV. 295, 307 (2011)
(explaining that 'The critical point,` |as| Justice Ginsburg explained, was that 'Congress
delegated to EPA the decision whether and how to regulate carbon-dioxide emissions
from power plants) (citations omitted)).
73. Justice Ginsburg explained,
The expert agency is surely better equipped to do the job than individual
district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the
scientific, economic, and technological resources an agency can utilize in
coping with issues of this order . . . . Judges may not commission scientific
studies or convene groups of experts for advice, or issue rules under notice-
and-comment procedures inviting input by any interested person, or seek the
counsel of regulators in the States where the defendants are located. Rather,
judges are confined by a record comprising the evidence the parties present.
AEP, 131 S. Ct. at 2339-40.
74. Adler, supra note 72, at 317.
75. Id. See, e.g., David A. Dana, The Mismatch Between Public Nuisance Law and
Global Warming, 18 SUP. CT. ECON. REV. 9 (2010); Tracy D. Hester, A New Front
Blowing In: State Law and the Future of Climate Change Public Nuisance Litigation, 31
STAN. ENVTL. L.J. 49, 88 (2012).
76. Hester, supra note 75, at 88.
77. Emily Sanji, The Gap-Filling Role of Nuisance in Interstate Air Pollution, 38
ECOLOGY L.Q. 479, 526 (2011) (citing 42 U.S.C. 7604(e) (2006)). Not only did the
2014] CHEVRON AND THE SHRINKING JUDICIAL ROLE 341
Benjamin Ewing & Douglas Kysar have argued, 'courts can, do, and
should interact with other branches of government, and in doing so,
'reveal [the] gaps between the common law`s basic ideal of protection
from harm imposed by others` agency and the failure of other branches
to step in when the complexity of such harm renders it unsuitable for
judicial resolution.
78
Thus, the root of this issue lies within the fundamental ideals of
checks and balances and the appropriate level of interaction between
branches of government, and therein lay the potential complications from
completely shutting the courts out of environmental litigation.
79
Each
branch of government needs the ability to influence and check the other
or, as Ewing and Kysar argue, to 'prod and 'plead with each otherto
leave climate change and environmental law litigation solely to the
legislature would threaten to overthrow these principles.
80
However,
because expertise is essential to effective environmental law
Court reserve the issue of state nuisance litigation, Congress also expressly preserved
state common law actions in the Clean Air Act. Thus, Sanji argues, 'Congress saw Iit to
allow the courts to provide injunctive relief when the requisite levels of causation and
proof are shown. While neither common law nor statutory law is sufficient to manage
complex interstate air pollution problems, both are necessary. Id. Sanji analyzed the
advantages and weaknesses inherent in both the common law and in federal statutes to
suggest that, at least with regards to interstate pollution, 'each Iills the gaps the other
leaves behind when utilized in the appropriate capacity. Sanji, supra note 77, at 482,
523-25.
78. Benjamin Ewing & Douglas A. Kysar, Prods & Pleas: Limited Government in an
Era of Unlimited Harm, 121 YALE L.J. 350, 356-57 (2011).
79. See id. at 423. Proponents of nuisance as a vehicle for environmental law claims
point out benefits such as the relative quickness with which a tort claim may be brought
(thus meeting the urgent needs of climate change issues), as well as the long term benefits
of failed nuisance actions in areas such as gun control, leading eventually to more
effective legislation in those areas. See id. at 417-18. Indeed, barring climate change
litigation 'would deprive the courts oI an opportunity to continue tort law`s evolution and
would upset a basic Ieature oI our governmental structure. Id. at 419. The authors
explain that through prods and pleas, 'one branch may prod` another by taking action
that makes further avoidance of the issue unpleasant or infeasible or, alternatively, it may
plead` with the other branch simply by calling attention to a problem . . . and asking Ior
its resolution . . . . [T]he former behavior might be thought of as action-forcing and the
latter action-inviting. Id. at 361.
80. Id. As Ewing and Kysar point out,
Courts and other governmental institutions should see calls for prodding and
pleading [or, checking and balancing] . . . as structurally necessitated; not as
ahistorical or unoriginalist, but rather in keeping with the highest ideals and
aspirations of the Founders themselves. Moreover . . . prods and pleas are as
much or more about getting the prodding and pleading institutions themselves
to changeto see beyond unduly narrow conceptions of their institutional
roles.
Id. at 423.
342 THE WAYNE LAW REVIEW [Vol. 60:329
adjudication, these 'prods and pleas are better found elsewhere.
81
As set
forth below, the current state of the Chevron doctrine presents a unique
opportunity for reform that may allow courts to begin to step away from
involvement in one area of environmental law, nuisance claims, yet take
back authority in the area of statutory interpretation, representing one
potential method of restoring balance between the branches in the area of
environmental law.
82
The courts can then continue the trend solidified by
AEP and step away from involvement in environmental tort law and
nuisance claims, leaving these issues in the hands of agency experts,
while exercising a stronger hand instead in environmental law statutory
interpretation, which is an area where courts possess more skill and are
better suited to make important decisions.
B. The Chevron Problem
The current mash up of Chevron methodologies calls into question
not only the role and wisdom of the doctrine itself, but also the courts`
general role in environmental law. Part of the problem, as illustrated by
the above cases, is that steps one and two of the Chevron test can easily
be confused. For example, in Homer City, the court merely referenced
the Chevron test and then went on to declare that the EPA`s
interpretation of the Clean Air Act was unreasonable.
83
The court failed,
however, to describe the nature of this unreasonableness. Was EPA`s
interpretation of an ambiguous statute unreasonable? Or, was EPA`s
construction of the statute unreasonable because it contradicted the plain
meaning of the statute?
84
Modern courts have a tendency to stop at
Chevron step one by consistently failing to take the analysis beyond their
own subjective statutory interpretation. That is, courts take a superficial
approach to determining the clarity of statutory languagethey almost
automatically deem the language clear, and resultantly find that agency
interpretation of these statutes conflicts with this plain meaning.
This trend presents a problem because it gives the courts more
interpretive authority than was originally intended by Chevron.
85
If a
court can come up with a reasonable interpretation of a statute, one that it
thinks is clearly expressed in the language, then its interpretation trumps
81. Id.
82. See infra Part III.B.
83. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 48 (D.C. Cir. 2012); see
also Massachusetts v. EPA, 549 U.S. 497 (2007); North Carolina v. EPA, 550 F.3d 1176
(D.C. Cir. 2008).
84. See generally Massachusetts, 549 U.S. at 497; North Carolina, 550 F.3d at 1176.
85. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842 (1984).
2014] CHEVRON AND THE SHRINKING JUDICIAL ROLE 343
the one given by the agency.
86
This alteration of Chevron not only gives
courts more interpretive power, but also allows the court to avoid the
Chevron step two standard, requiring that any reasonable agency
interpretation stand.
87
Indeed, of the above-mentioned cases, those in
which the court reached Chevron step two were the ones in which the
court upheld the agency action. However, by crafting the analysis in a
way that allows courts to stop at step one, they may strike down any
agency interpretation that conflicts with its own interpretation of the
statute, regardless of whether that interpretation is necessarily
unreasonable.
Language is inherently evasive, is infamously so within the law, and
is thus subject to ambiguity.
88
Indeed, even the most direct legal
statements prove complicated under scrutiny. While this idea has long
been recognized as a complication of the Chevron doctrine, it becomes
even more so when courts simplify the doctrine to abandon the analysis
of congressional intent as to who should interpret the language in a
particular statute. Again, without this question, courts can deem clear
almost any language and can use this as a tool to strike down agency
action.
89
Doctrinal reform of Chevron presents one method of alleviating the
complications that inflict it. While the doctrine has seen better days, its
unraveling is probably not desirableafter all, the Supreme Court
created it for a reason. For example, proponents of expansive judicial
86. Under the original doctrine, the courts were supposed to look at whether Congress
has spoken directly to the issue. Thus, when courts adhered to a statute`s plain meaning,
they were abiding by the plain meaning given to the statute by Congressnot, as in the
cases above, to the plain meaning given to the statute by the court itself. See generally
Chevron, 467 U.S. 837.
87. See Jellum, supra note 4, 772-82 (2007). The idea that the question of
congressional intent is one that has been skewed as Chevron wears down is not a new
one. Some, such as Jellum, formulate this as an additional pre-step to the test, noting that
courts will only apply Chevron when the agency action at issue is highly formalized and
extensive. Id. These, too, are the cases in which Congress will be found to have spoken
directly on the issue at hand, and the courts will defer. Otherwise, the courts almost
automatically deem the language ambiguous and employ its own reasoning to discern its
meaning, essentially avoiding Chevron altogether. Id. See also Cass R. Sunstein, Chevron
Step Zero, 92 VA. L. REV. 187 (2006).
88. See Jellum, supra note 4, at 781.
89. See, e.g., EME Homer City Generation L.P. v. EPA, 696 F.3d 7, 46-47. The court
explained that the 'plain language requirements set Iorth in the Act were 'clear. Id.
However, given the complexity of the Act at issue, the long history of debate over this
Act, and the wealth of additional filings and lengthy dissent, it certainly appears that
while the courts` own interpretation oI the act may indeed have been correctthe not-so-
plain meaning of the statute was up for debate, thus requiring a proceeding to Chevron
step two. Id.
344 THE WAYNE LAW REVIEW [Vol. 60:329
deference to agency decision-making 'cite the legitimacy, expertise, and
rule of law advantages of following centralized agency rules as
presumptive law on any federal statutory topic.
90
Moreover, the courts`
increasing interference with agency decisions seems even less
appropriate when viewed in light of the fact, as mentioned above, that
courts tend to stop short of offering any sort of remedy for agency
inadequacy.
On the other hand, though, critics of Chevron worry 'that a regime
of routine and broad judicial deference would encourage agency turf
grabbing, exacerbate agency capture, and compromise judges` traditional
supremacy in declaring the law.
91
Critics also argue that in
implementing the Chevron doctrine, the Court inadvertently handed over
broad lawmaking authority to agencies.
92
Again, though, the Chevron
decision arose in response to a need for such a doctrine, and the doctrine
seems to have had a largely positive impact, despite courts` recent trends
of altering its application to frustrate agency purposes rather than
facilitate them. Moreover, the Supreme Court, while it may waiver in its
application of the doctrine, has never expressly questioned the doctrine.
While critics` concerns warrant respect and investigation, this is not the
time to let Chevron die.
Instead, Chevrons current ambiguity presents a good opportunity
not for destruction of the doctrine, but for revision. As William Eskridge
and Connor Raso suggest in their study of the doctrine, Chevron might
be applied more sensibly as a canon rather than a rock solid judicial
requirement.
93
Indeed, empirical studies have found that despite the fact
90. Eskridge, Jr. & Raso, supra note 41, at 1730. This is particularly true in the arena
of environmental and energy law, where policymakers often have years of specialized
training in their fields and expend massive amounts of time and energy creating the
regulations that the courtslacking this expertiseso easily and so swiftly strike down.
91. Id. at 1730-31.
92. See, e.g., Jellum, supra note 4, at 743 (arguing that 'contrary to Justice Stevens`
belief that Chevron merely confirmed existing law, Chevron vastly expanded the scope of
agency lawmaking and interpretive power); Daniel A. Farber, Is the Supreme Court
Irrelevant? Reflections on the Judicial Role in Environmental Law, 8 MINN. L. REV. 547
(1997). Farber argues that the Supreme Court has actually become irrelevant, failing to
decide cases in ways that have any significant precedential value. One of the reasons for
this, he claims, is through a strong policy of deferring to environmental agencies. Id. at
549. Farber makes the suggestion that if the courts want to get involved in this sensitive
area, then they must find a way to do so more constructivelysomething that could
perhaps be achieved through Chevron reform. Id.
93. Eskridge, Jr. & Raso, supra note 41, at 1733-34 (noting that '|s|ometimes Justice
O`Connor zealously applied or distinguished Chevron or joined opinions that did so,
while other times she ignored it even though its regime was clearly relevant. Perhaps
surprisingly, the same is true of both Justice Stevens, a critic of broad interpretations of
2014] CHEVRON AND THE SHRINKING JUDICIAL ROLE 345
that the doctrine is technically binding as a matter of stare decisis, most
of the Supreme Court Justices have applied it largely on an at-will
basis.
94
The authors point this out in support of their proposal for
'overthrowing the formalist rule-like approaches to Chevron in favor of
adopting a 'standards-like approach to the doctrine, much like the
courts approach the canons.
95
This sentiment makes a sound
suggestionbecause courts already apply the doctrine sporadically, and
because broad use of the doctrine presents obvious problems, this
'standards-like approach would allow courts to weigh Chevron as one
possible way to approach administrative law, and to consider it against
other adjudicative approaches. This way, courts may exercise discretion
as to how to treat cases based on the individual facts and issues
presented. Thus, when the courts have overriding reasons not to apply
Chevronas illustrated in Massachusetts and Homer Citythey can
simply find another justification for their decisions rather than skirt the
issue by skewing the Chevron doctrine.
In specific instances where policy and other considerations warrant
deeper judicial interference,
96
with Chevron as a tool rather than a
mandate, courts will have the opportunity to engage in broader, deeper
analysis that perhaps has gotten unintentionally lost with the application
of the Chevron doctrine over time. While courts may not possess ideal
credentials for settling common law environmental law issues, courts are
comfortable experts with statutory interpretation. Sticking with the theme
of leaving matters to the experts, then, courts should have freedom to
exercise greater authority with respect to review of agency statutory
interpretation. This authority can be checked by surrendering control in
other areas where the court lacks this expertise, such as nuisance
litigation. With the option to depart from Chevron and delve deeper into
the decision-making process when need be, perhaps courts will be able to
preserve the true character of Chevron and apply it correctly when a
situation calls for it, rather than molding it to their purposes, thus
restoring the doctrine`s relevancy and efficiency.
97
his own Chevron decision, and Justice Scalia, the vocal cheerleader for a near universal
application of Chevrons framework).
94. Id. at 1734.
95. Id. at 1735.
96. See, e.g., Massachusetts v. EPA, 549 U.S. 497 (2007); North Carolina v. EPA,
550 F.3d 1176 (D.C. Cir. 2008).
97. Correct application of the doctrine, as argued for here, means the way the original
Chevron court meant for it to be applied: two-steps, based on congressional intent. See
generally Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984).
346 THE WAYNE LAW REVIEW [Vol. 60:329
III. CONCLUSION
While the question of the role of the courts in administrative law is
not a new one,
98
the judiciary`s recent trends with respect to Chevron and
nuisance litigation have further complicated this question as it pertains to
environmental law.
99
Chevron is a complication because it leaves open
the question of when and how the doctrine is and should be applied,
leaving neither the challenger nor the agency with any meaningful
guidance as to how the reviewing court will decide.
100
The subjective
nature of what has become of step one of the Chevron analysis allows
courts to either defer or step away from agency statutory interpretations
essentially on a whim, rather than as a result of the mandates of the
Chevron doctrine itself.
101
With the nuisance issue, the Supreme Court took a firm step away
from involvement in environmental law by barring federal nuisance
claims with respect to climate change, foreshadowing even more general
movement away from future judicial involvement in environmental
law.
102
And yet there are few indications as to why, in some instances the
Court seeks to step away and yet in others, it freely exercises authority.
While there are arguments for and against increased judicial involvement
in environmental law, and for and against different avenues of this
involvement, such as nuisance
103
and Chevron,
104
the underlying need is
for a consistent protocol for when a court will exercise authority and
98. See generally Ernest Gellhorn & Ronald M. Levin, ADMINISTRATIVE LAW AND
PROCESS 72-129 (5th ed. 2006). Proponents of judicial review maintain that it is the best
way to ensure that agency policies adequately adhere to statutory mandates, and to ensure
that individuals are treated fairly and equally in the implementation of agency policies.
They see the judiciary as preventing hasty or careless administration, as providing a clear,
generalized view of pressing issues, and as being open to a wide variety of potential
parties. Id. at 128-29. Skeptics argue that overly-intrusive judicial review can be
undemocratic due to their lack of constituency, that judges lack the specialized technical
training and access to information possessed by administrative agencies, and that courts
have higher tendencies to favor interest groups. Id.
99. See supra Part III; AEP v. Connecticut, 131 S. Ct. 2527 (2011).
100. See supra Part III.A.
101. See supra Part III.B.
102. See supra Part III.A; AEP, 131 S. Ct. 2527.
103. See supra notes 59; Sanji, supra note 77, at 482; see also Ewing & Kysar, supra
note 78, at 418 (lamenting that, '|r|ecent criticisms oI climate change lawsuits focus only
on tort`s regulatory role, arguing that the inability oI courts to bind all relevant
greenhouse gas emitters automatically makes them institutionally ill-suited to entertain
lawsuits` |in this area|, and pointing to gun control litigation as an example of an arena
in which Iailed nuisance claims prompted regulatory action, despite those suits` Iailure to
bring forth any immediate judicial remedy or regulation) (citations omitted).
104. See supra Part III.B.
2014] CHEVRON AND THE SHRINKING JUDICIAL ROLE 347
when it will refuse. In the area of statutory interpretation, the courts
could follow the model set forth in AEP
105
and reform the doctrine closer
to its original state, affording more deference to agencies and stepping
away from involvement in this area of law. Or the courts could, and
should, view AEP as having created the opportunity for a trade-off: less
involvement in areas where its expertise lacks in exchange for more
involvement in statutory interpretation. Given the need for balance
between governmental branches, the uncertain state of Chevron may be a
good opportunity for the courts to take back some of their role in
environmental law. Whereas expertise and complicated fact patterns are
strong concerns in areas such as nuisance, courts might be more
appropriately suited to exercise authority in areas of statutory
interpretationafter all, that is where their expertise lies. Again, this
requires structural reform of Chevron. With the appropriate balance,
however, a Chevron reform, paired with trends of lesser judicial
involvement in other areas like nuisance, can allow courts to 'prod and
'plea with the legislature, yielding more effective legislation the first
time aroundlegislation that better complies with the ultimate goals of
Congress and with the needs of the people.
106
105. AEP, 131 S. Ct. 2527.
106. See generally Ewing & Kysar, supra note 78.