“To everything there is a season . . . : a time to keep, and a time to cast away[.]” Ecclesiastes 3:1, 6 (KJV).

Very recently, the United States Supreme Court held that Illinois’ extraction of “agency fees” from nonconsenting public-sector employees violates the First Amendment. In doing so, the Court overruled Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), and therefore refused to apply the 41 year-old decision’s reasoning.  Standing instead on the First Amendment, the Court saw the Illinois’ scheme as an unconstitutional abridgement of our freedom of speech.  The dissenting Justices focused on the importance of letting prior decisions stand – or, because all lawyers speak Latin, stare decisis.  In her dissent, Justice Kagan observed that “[r]arely if ever has the Court overruled a decision – let alone one of this import – with so little regard for the usual principles of stare decisis.” Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., No. 16-1466 (June 27, 2018) (Kagan, J., dissenting, slip op. at 2.) Brown v. Board of Education’s resounding rejection of Plessy, however, comes easily to mind, as does Lawrence v. Texas. The Court in Janus confronted the institutional flaw the case presented and addressed it head-on, refusing to allow the reasoning of a 41-year-old case to bind it.

The Court’s decision in Janus is big news for public employers, and a likely boon for public labor attorneys, but why should the environmental and regulated community care?  The Court’s decision in Janus perhaps points to the Court’s willingness, when “there are strong grounds for doing so[,]” to let a prior decision fall (or, in what is likely heretical Latin, lapsum decisis). Janus, No. 16-1466, slip op. at 34.  One prior landmark decision arising from environmental and administrative law, Chevron v. NRDC, may soon come under renewed scrutiny by the Supreme Court.

In Chevron, the Court created what has become known as “Chevron deference” to agency interpretations of statutes. Chevron deference requires a two-step process: first, it asks whether the statutory provision at issue has a plain and unambiguous meaning; if not, the courts must defer to the agency’s reasonable interpretation of the statute; they cannot interpret the statute themselves. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).  The primary premise behind Chevron deference is that Congress’s ambiguity in a statute constitutes an implied delegation to the agency to “fill in the statutory gap.” FDA v. Brown & Williamson Tobacco Corp., 29 U.S. 120, 159 (2000).  Many statutes, particularly environmental statutes, are often ambiguous – “expressing a mood” as Chief Justice Roberts once observed. City of Arlington v. FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., joined by Kennedy and Alito, JJ., dissenting).  Justice Kennedy once mused from the bench that the Clean Water Act was perhaps unconstitutionally vague and therefore raised due process concerns.

A growing number of opinions seem to suggest the Court’s willingness to shift away from what Justice Scalia described as “an elaborate law of deference to agencies’ interpretations of statutes and regulations.” Perez v. Mortgage Bankers Ass’n, 135 S.Ct. 1199, 1211 (2015) (Scalia, J., concurring). Justice Scalia, once an early proponent of agency deference, late in life identified the Court’s current deferential approach as a “problem” that is “perhaps insoluble if Chevron is not to be uprooted[.]” Perez v. Mortgage Bankers Ass’n, 135 S.Ct. 1199, 1212 (2015) (Scalia, J., concurring).

Justice Scalia’s evolved view may now hold a majority on the Supreme Court. Chief Justice Roberts, joined by Justices Kennedy and Alito, called Chevron a “powerful weapon” that contributes to the “danger posed by the growing power of the administrative state.” City of Arlington v. FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., joined by Kennedy and Alito, JJ., dissenting). In another context, Justice Kennedy observed that “[a]bdication of responsibility is not part of the constitutional design.” Clinton v. City of New York, 524 U.S. 417, 452 (1998) (Kennedy, J. concurring).  Justice Thomas has questioned Chevron’s constitutionality, objecting to its wresting from courts “the ultimate interpretative authority to ‘say what the law is,’ Marbury v. Madison, 1 Cranch 137, 177 (1803).” Michigan v. EPA, 135 S.Ct. 2699, 2712 (2015) (Thomas, J., concurring).  While on the Tenth Circuit, now-Justice Gorsuch described the deference given federal agencies by the courts “an elephant in the room[,]” and wrote that “[m]aybe the time has come to face the behemoth.” Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring). These words are not glib – and they are not all there is.

That makes five sitting Justices, and one deceased, who have, in some way or another, questioned whether Chevron is consistent with the Constitution.

Janus indicates a willingness by the Court to depart from precedent when the reasoning is no longer salient.  A case currently before the Supreme Court, Weyerhaeuser Company v. U.S. Fish and Wildlife Service, presents an opportunity to do the same regarding Chevron deference. In Weyerhaeuser, the Court is reviewing a decision by the U.S. Fish and Wildlife Service to designate as unoccupied critical habitat for the dusky gopher frog an area in Louisiana where the frog neither inhabits nor could inhabit absent significant alterations.  Anticipating that the Service would rely on Chevron to ask the courts to defer to the unoccupied critical habitat designation at issue, friends of the court in Weyerhaeuser declared that “Chevron should be set aside,” (Brief for Coalition for a Sustainable Delta, et al. as Amici Curiae Supporting Petitioner at 11, Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, et al. (2017) (No. 17-71, 11.) and cited as support the Ninth Circuit’s recent and seemingly reluctant deferral to “a mess” of a biological opinion severely restricting water deliveries to agricultural communities in the San Joaquin Valley. San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581, 604 (9th Cir. 2014).

Weyerhaeuser’s facts and context are so challenging for the U.S. Fish and Wildlife Service that the Court may have no choice but to confront whether stare decisis saves the unoccupied critical habitat designation by continuing to defer under Chevron, or whether they both should fall. Similar to how the Court approached Abood in Janus, perhaps the Court in Weyerhaeuser – or some cadre of its Justices – will question the relevance of Chevron’s 34 year-old reasoning given the dramatic growth of the administrative state in the intervening years. The implications are hard to overstate, and range from the practical aspects of jurisdictional determinations under the Clean Water Act to pontifications of the philosophical underpinnings of the Constitution rooted in Montesquieu and Machiavelli.

There is indeed a season for everything; admittedly, the current season is rather stormy. “These are the times in which a genius would wish to live,” wrote Ms. Abigail Adams, speaking to a different time. Just as they did then, challenging times require the best from each of us as we decide what to keep and what to cast away.


Peter Prows and Philip Williams
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.


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