POWERING DOWN CHEVRON? CHEVRON DEFERENCE AND THE CLEAN POWER PLAN LITIGATION by Julia E. Stein *

14 POWERING DOWN CHEVRON? CHEVRON DEFERENCE AND THE CLEAN POWER PLAN LITIGATION by Julia E. Stein * INTRODUCTION For those litigating in the field of environmental law or other fields of administrative law it s become hard to imagine the world without the doctrine of Chevron deference. Established by the United States Supreme Court in the 1984 decision Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. ( Chevron v. NRDC ), Julia E. Stein the doctrine establishes the legal test for reviewing an administrative agency s interpretation of a statute, and accords significant judicial deference to such interpretations provided Congress has not directly spoken, via the plain language of the statute, on the question at hand. 1 Since its inception, the Chevron deference doctrine has not only become a fixture in administrative law practice, but has, in some ways, provided a foundation for the expanding role of the administrative state through the actions of executive branch agencies such as the United States Environmental Protection Agency (EPA). The outer bounds of Chevron deference have also been pushed beyond agencies interpretation of statutes; in 1997, the Supreme Court extended deference even to agencies interpretations of their own regulations in Auer v. Robbins. 2 The application of the Chevron deference inquiry had in many ways become a given in cases where the controversy turned on an agency s interpretation of the law. All this deference has not gone unquestioned. Over the past decade, the Supreme Court has signaled a willingness to rethink the limits of the Chevron doctrine. In a slew of recent decisions, most notably the Court s 2015 opinion in King v. Burwell, the possibility of an administrative law landscape absent Chevron deference or at the very least, with a seriously weakened application of the doctrine has started to emerge. 3 Nowhere is this shift more evident than in State of West Virginia, et al. v. Environmental Protection Agency, the multi-state challenge to the Obama Administration s Clean Power Plan, currently pending before the District of Columbia Circuit and set for oral argument in mid-september 2016. 4 The litigation has become a battleground not only with respect to the legality of EPA s ambitious Clean Power Plan rulemaking, which strives to reduce carbon dioxide emissions from the nationwide power sector 30 percent below 2005 levels by 2030, but also for the future of the Chevron doctrine, particularly its role in controversies over agency actions that purport to raise major questions and represent extraordinary cases. This article examines Chevron deference through the lens of the Clean Power Plan litigation in three parts: a discussion of the shifting application of the doctrine from its establishment in Chevron v. NRDC up through the Court s recent decisions, including Utility Air Regulatory Group v. Environmental Protection Agency and King v. Burwell; an in-depth look at the arguments for and against Chevron deference that form the undercurrent of the briefing in West Virginia v. Environmental Protection Agency; and finally, the implications of a potential scale-back of the Chevron doctrine in our present-day legislative and administrative environment. PART ONE: CHEVRON TO AUER AND BACK AGAIN A. Where It All Started: Chevron v. NRDC Much like the Clean Power Plan litigation, the litigation that resulted in the establishment of the Chevron doctrine also centered on EPA s interpretation of language in the Clean Air Act through a notice-and-comment rulemaking. The 1979 rulemaking at issue in Chevron established a permit program to regulate new and modified stationary sources in states in nonattainment with the National Ambient Air Quality Standards. 5 As interpreted by EPA, such stationary sources included all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single bubble. 6 The NRDC argued this was incorrect. Instead of looking at an entire facility as one stationary source, NRDC argued a stationary source should be interpreted to include each individualized source that emits more than 100 tons of pollutant, i.e., particular components present at the facility could each be considered a separate major source if they met the 100 ton emission threshold. 7 The Court of Appeals had held in favor of NRDC, finding that the aggregation of all the devices at a facility into one source was not appropriate considering the general context of a program designed to improve air quality. 8

The Supreme Court reversed. Establishing the now-ubiquitous two-part Chevron test, the Court wrote that when interpreting a statute, the first inquiry is whether clear guidance has been given by Congress as to the statute s meaning. 9 In other words, if the plain language of the statute leaves no room for interpretation, the direction of the democratically-elected body with lawmaking power must be followed. If there is ambiguity, the question for the court is whether the agency s answer is based on a permissible construction of the statute. 10 In the Court s eyes, such ambiguity is an indication of Congress intent to delegate authority to the administrative agency to resolve the question through its own expertise. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. 11 Unless there is a clear indication that Congress would not have taken the same approach as the administrative agency, held the Court, the agency s interpretation should be respected, as judges lack the particularized knowledge administrative agencies possess in their respective fields. 12 At the root of Chevron deference, then, is a fundamental separation-of-powers tension. This tension has come back to haunt the doctrine. The Supreme Court s decision recognizes that while, under the Constitution, the judiciary is tasked with interpretation of the law, in some instances, relying upon agency expertise may be the more pragmatic choice. An administrative agency that has been delegated authority by the democratically-elected Legislature may have a deeper understanding of the issues in question, and thus may be better equipped to realize the intent of the Legislature than is a court. Executive Branch agencies, not judges, become the arbiters of what Congress, and by extension, the law, intends. But when does Chevron deference become too deferential? B. Expanding Upon Chevron As the role of administrative agencies continued to expand towards the end of the 20 th century, so too did the application of the Chevron doctrine to agency interpretations of law. Chevron itself involved an agency interpretation established through notice-and-comment rulemaking, and agency interpretations arising in this context certainly enjoyed Chevron deference in the years following the decision. 13 But Chevron s application was not limited to interpretations supported by notice-and-comment rulemaking; the doctrine was also applied to agencies acting in an enforcement capacity through an adjudicatory process. Throughout this period, the Supreme Court recognized a very good indicator of delegation meriting Chevron treatment in express congressional authorizations to engage in the process of rulemaking or adjudication that produces regulations or rulings for which deference is claimed. 14 For example, in Immigration and Naturalization Service v. Aguirre-Aguirre, the Court considered a determination of the Board of Immigration Appeals that had been set aside on the grounds that the Board had improperly interpreted language in the Immigration and Naturalization Act to allow for the deportation of a Guatemalan national who had committed serious nonpolitical crime[s], and found that the Ninth Circuit Court of Appeals had failed to give the appropriate deference to the Board s determination under Chevron. 15 The Court noted that judicial deference to the Executive Branch is especially appropriate in immigration cases, and held that the Board is owed Chevron deference when it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication. 16 The application of deference to an administrative agency s interpretation of the law did not stop at formal processes such as rulemakings and adjudications. The Court extended the doctrine to agency determinations outside of formal administrative proceedings in NationsBank of North Carolina, N.A. v. Variable Annuity Life Insurance Co. 17 There, the Court considered the Comptroller of the Currency s decision to grant a bank s application to allow its brokerage subsidiary to act as an agent in the sale of annuities. 18 Under the National Banking Act, the Comptroller of the Currency holds primary responsibility for surveillance of the business of banking. 19 Accordingly, the Court turned to Chevron to consider the Comptroller s determination. 20 Noting that courts should give great weight to any reasonable construction of a regulatory statute adopted by the agency charged with enforcement of that statute, the Court determined that deference was owed to the Comptroller s reasonable determination. 21 In United States v. Mead Corporation, the Court solidified the bounds of Chevron deference in cases where no formal administrative process is implicated, considering the limits of Chevron deference owed to administrative practice in applying a statute. 22 At issue in Mead were ruling letters issued by the United States Custom Service. These letters, which could be issued by any one of the forty-six port-of-entry Customs offices, determine the tariff classifications for particular imports. 23 As such, they represent the official position of the Customs Service with respect to the particular import, but they are not subject to a notice-and-comment procedure, are not binding on third parties, and are issued on a case-by-case basis. 24 The Federal Circuit held that such classifications were not owed judicial deference under Chevron. The Court agreed, although it vacated the Federal Circuit s decision on other grounds. It held that administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying 15

the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority. 25 In this particular case, said the Court, even though Chevron deference may be given in cases where administrative formality is lacking, there was no indication that Congress intended to delegate authority to the Customs Service to issue rulings that would be given the force of law. 26 But even in declining to apply Chevron deference in Mead, the Court acknowledged the broad application of the doctrine. In Auer v. Robbins, the Court took the concept of deference established in Chevron one step further, giving deference to the Secretary of Labor s interpretation of a regulation adopted pursuant to the Secretary s authority under the Fair Labor Standards Act. Workers challenged the use of the Secretary s salary basis test to determine whether an employee was exempt from collecting overtime pay. 27 Applying Chevron, the Court found that [b]ecause the salary-basis test is a creature of the Secretary s own regulations, his interpretation of it is, under our jurisprudence, controlling unless plainly erroneous or inconsistent with the regulation. 28 Beyond deferring to an agency s interpretation of statutory language enacted by Congress, the Supreme Court held in Auer that courts should defer to an agency s interpretation of its own regulations, as long as those regulations were adopted pursuant to the authority delegated to it by the Legislative Branch. This new concept of Auer deference represented an expansion beyond Chevron and a high-water mark of sorts for the deferential treatment of agency actions. By the twentieth anniversary of the Chevron decision, the concept of Chevron deference had become a staple in administrative law. Executive Branch administrative agencies received the benefit of deference not only in many formal rulemaking and adjudicatory processes, but for some decisionmaking occurring outside the confines of these formal processes as well. But all this deference would not go unquestioned. 16 C. Gone Too Far? Scaling Back Chevron Despite having authored the Supreme Court s Auer opinion, in a lone dissent to the Court s 2013 Decker v. Northwest Environmental Defense Center, Justice Scalia argued that the deference afforded the agency in that case goes too far. 29 Auer deference, he wrote, sets the power to write a law and the power to interpret it in the same hands and thereby contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation. 30 Justice Scalia s Decker dissent was just one signal during the 2013 term indicating that certain justices were willing to reconsider the scope of deference owed to administrative agencies. In City of Arlington v. Federal Communications Commission, the majority, concurring, and dissenting opinions all offered different views of the applicability of Chevron. 31 In that case, the Court considered whether the Federal Communications Commission (FCC) held the power under the Communications Act to set deadlines for local zoning authorities who were considering siting proposals for telecommunications antennas and towers. Justice Scalia s majority opinion read the Court s earlier decision in Mead to mean that once rulemaking or adjudicative authority has generally been delegated to an administrative agency, the judiciary need only ask whether the agency has stayed within the bounds of its statutory authority when determining whether to apply Chevron deference. 32 While Justice Breyer agreed in his concurrence that the role of courts is to determine whether the agency is acting within the authority delegated to it by Congress, he noted that [d]eciding just what those statutory bounds are, however, is not always an easy matter, and the Court s case law abounds with discussion of the subject. 33 Because the existence of statutory ambiguity is sometimes not enough to warrant the conclusion that Congress has left a deference-warranting gap for the agency to fill, Justice Breyer proposed that courts consider a number of factors, including the subject matter of the statutory provision in question, the statute s text, its context, the structure of the statutory scheme, and canons of textual construction, when determining whether to accord an agency s action Chevron deference. 34 Chief Justice Roberts, joined by Justices Kennedy and Alito, dissented to express a fundamental disagreement with the majority regarding the applicability of Chevron deference, arguing that [a] court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference. 35 In the dissenters view, Chevron deference should not be granted to every ambiguous statutory provision instead, once a court has determined that there is a statutory ambiguity to be resolved, it should decide, on a caseby-case basis, whether Congress truly intended for the agency in question to have power to resolve that particular ambiguity, regardless of whether Congress has given the agency general adjudicative or rulemaking power under the statute in question. 36 The majority s 2013 City of Arlington rationale would resurface the next year in the Court s Utility Air Regulatory Group v. Environmental Protection Agency decision but not to the agency s benefit. While the Court there applied Chevron to EPA s determination that a source could be required to obtain a Prevention of Significant Deterioration (PSD) or Title V permit under the Clean Air Act solely on the basis of potential greenhouse gas emissions, it declined to grant the agency s determination deference. 37 Noting that

[e]ven under Chevron s deferential framework, agencies must operate within the bounds of reasonable interpretation, the Court found that such reasonable interpretation must take into account both the broader statutory scheme and the specific context within which the ambiguous language is used. 38 In this case, said the Court, the agency s interpretation was inconsistent with the broader statutory scheme and therefore could not be accorded deference; the applicability of the Chevron framework could not save the agency s action. 39 The trend emerging in these cases reconsideration both of the applicability of deference to particular administrative agency actions and of the level of deference accorded those actions when the Chevron framework is applicable barreled ahead in 2015. In a concurrence in Perez v. Mortgage Bankers Association, Justice Scalia again advocated that the Court should abandon Auer deference, arguing that it was the role of the judiciary to determine the meaning of agencies regulations, with no deference to the interpretations of the agencies themselves. 40 In Michigan v. Environmental Protection Agency, the Court applied the Chevron framework but, citing to its 2014 Utility Air Regulatory Group decision, found against the agency. 41 Holding the Mercury Air Toxics Standards invalid because EPA had not conducted a cost-benefit analysis before beginning the regulatory process, the Court ruled that this failure to consider costs was an unreasonable reading of the Clean Air Act that was entitled no deference under Chevron. 42 And in what may perhaps be remembered as the most significant Chevron case of the 2015 term, King v. Burwell, the Court surprised some by finding that in certain extraordinary cases, the Chevron framework does not apply at all. 43 Chief Justice Roberts, writing for the majority, hearkened back to his dissent in City of Arlington as he noted that the Chevron doctrine is premised on the theory that a statute s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps. In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation. 44 The Court, which considered the Internal Revenue Service s (IRS ) interpretation of a section of the Internal Revenue Code adopted as part of the Affordable Care Act, ultimately upheld the IRS s read of the statute, but, critically, the Chevron doctrine played no role in that determination. 45 Finding that the question at hand was one of deep economic and political significance that is central to [the] statutory scheme, the majority reasoned that if Congress had intended to assign interpretation of that question to an agency, it surely would have done so expressly. 46 Cases which involve significant policy questions, the Court seemed to say, could fall outside the scope of Chevron and into another category entirely, one where the weight of the issues at hand demands an express Congressional delegation of authority rather than the implied delegation that underpins Chevron. But where should courts draw that line? PART TWO: TO DEFER OR NOT TO DEFER? It is in the shadow of King v. Burwell that West Virginia v. Environmental Protection Agency, the multi-state challenge to the Obama Administration s Clean Power Plan, has arrived for oral argument before the District of Columbia Circuit this fall. The final Clean Power Plan, which aims to achieve significant greenhouse gas emission reductions from existing sources in the utility power sector by 2030, was published in the Federal Register on October 23, 2015. 47 Immediately, it was challenged by multiple states and corporations claiming that EPA lacked authority under the Clean Air Act to implement the rule. 48 The rule itself establishes emission guidelines for states to follow as they formulate individual plans to moderate emissions from existing fossil-fuel fired electric generating units. State-specific emission goals, according to EPA, reflect the degree of emission limitation achievable through the application of the best system of emission reduction as contemplated under the Clean Air Act, but states need not use any particular configuration of emission reduction measures to arrive at the set targets. 49 Challengers of the Clean Power Plan argue that the Clean Air Act not only fails to grant authority for this type of rulemaking, but in fact unambiguously prohibits it, and that, further, the Plan unconstitutionally forces states to carry out federal energy policy. The potential impact of the Clean Power Plan is surely significant. The existing power plants targeted by the rule, according to the Obama Administration, constitute the single largest source of carbon pollution in the United States. 50 EPA itself estimated that the Clean Power Plan will result in up to $93 billion in climate and public health benefits. 51 In successfully arguing to stay the implementation of the rule until the D.C. Circuit s final decision on its validity, opponents of the rule claimed that the Clean Power Plan will impose immense sovereign and financial harms upon the States, on a scale exceeding any environmental regulations the States have ever faced. 52 The stakes are high, not just for the fate of the Clean Power Plan, but for the Chevron doctrine as well. The state and industry petitioners and EPA have taken diametrically opposed views of whether Chevron should apply. The petitioners have argued that this is precisely the sort of extraordinary case the Court was alluding to in its King v. Burwell decision. Citations to the Court s 17

Chevron-limiting jurisprudence of the past few years abound in the petitioners briefing on the matter s core legal issues King v. Burwell, Utility Air Regulatory Group, and Michigan v. Environmental Protection Agency receive a total of twenty-four mentions between them while Chevron itself is only mentioned in passing. 53 In the first instance, the petitioners argue, the Clean Power Plan represents a transformative expansion in EPA s regulatory authority based on a long-extant statute that requires clear congressional authorization. 54 The petitioners say that the scope of the rulemaking implicates precisely the kinds of decisions of vast economic and political significance contemplated in King v. Burwell. 55 They contend that while EPA relies on Chevron deference to defend the rulemaking, when such impactful decisions are at issue, deference is not warranted unless there is a clear Congressional delegation of authority for the agency to resolve the statutory ambiguity in question. As proof of the Clean Power Plan s extraordinary significance, the petitioners cite to the 4.3 million comments the rule attracted. The petitioners further assert that EPA claims the authority to become a central planning authority for the power sector, with unilateral authority to end the use in this country of certain kinds of energy generation. Despite that, they argue, the express authorization required by King v. Burwell for such decisionmaking is critically absent in the context of the Clean Air Act. 56 Furthermore, the petitioners briefing on the core legal issues implies that given the Utility Air Regulatory Group decision, even were Chevron to apply, the scope of the Clean Power Plan expands the Agency s authority so far beyond what the Clean Air Act contemplates that the rulemaking could not be entitled to any deference under Chevron. 57 Chevron deference should not be the test here, petitioners say, but Chevron or no Chevron, they argue that the Court s recent spate of decisions clearly indicate EPA s rulemaking action is invalid. Unsurprisingly, EPA argues for a strong application of the Chevron doctrine. Its position is clear right out of the gate: the Agency clearly states Chevron is the appropriate standard of review for the rulemaking, and contends that the court must give an extreme degree of deference to the EPA s evaluation of scientific data within its technical expertise, especially where it reviews EPA s administration of the complicated provisions of the [CAA]. 58 Petitioners arguments go astray, says the Agency, when they misapply King v. Burwell to argue that Chevron deference should not apply in this case; in reality, it argues, the court is obligated to uphold an expert agency s interpretations of a statute it administers unless those interpretations are either foreclosed by the text or are an unreasonable reading of ambiguous language. 59 18 The Agency distinguishes King v. Burwell by noting that there, the Court found it unlikely that Congress had delegated authority to interpret a health care reform provision within the Affordable Care Act to the IRS, which has no health care expertise, but that by contrast EPA has decades of expertise addressing power-plant emissions. 60 Noting that even Chevron itself involved major sources and EPA s construction of the Clean Air Act, the Agency argues that this case involves EPA s construction of a statute that it has long administered and of provisions that go to the core of EPA s mission to protect public health and welfare. 61 Beyond this, says EPA, the fact that a rulemaking carries economic and political significance does not alone mean that Chevron deference is inapplicable; Chevron has often been applied to such questions in similar contexts to the instant case. 62 EPA asserts its rulemaking, unlike that at issue in Utility Air Regulatory Group, does not involve an expansion of EPA power to regulate millions of new sources: the Clean Power Plan targets a familiar group of existing sources that have long been subject to regulation under the Clean Air Act. 63 Because the Agency s interpretation of the Clean Air Act through the rulemaking is reasonable, it argues, it must be accorded deference under Chevron. These two contrasting views of the case could not be more different. Under the petitioners formulation, the Clean Power Plan implicates economic and political decisions of such heavy significance that Congress could not have possibly intended them to be resolved by an agency without express delegation of that authority. Even if one is to accept the premise that the Clean Air Act represented a delegation of authority to EPA to resolve statutory ambiguities, the petitioners believe EPA s read of the Clean Air Act in this context is so farfetched that it could not be given deference anyway. By EPA s read, the subject matter of the Clean Power Plan falls squarely within its experience and expertise, has long been within its purview to regulate under the Clean Air Act, and would not lead to enforcement against any significant number of new sources. Thus, according to EPA, the rulemaking is clearly entitled to deference, and EPA s reasonable interpretation of the Clean Air Act s provisions must stand. The outcome at the D.C. Circuit will, at the very least, likely shape and define the application of both Chevron and King v. Burwell to major administrative rulemakings. With the matter fully briefed by April 2016, oral arguments had been set to proceed before a three-judge panel at the D.C. Circuit in early June. 64 But in May, a month after all briefing was submitted, the D.C. Circuit ordered on its own motion that oral arguments would be postponed until late September, and that the matter would be heard before the en banc court. 65 Some have speculated that this decision at least partially reflects

the appellate court s awareness that, given the vacancy on the Supreme Court left by the passing of Justice Scalia, and the reluctance of Congress to act on confirming President Obama s nominee for the seat, the D.C. Circuit s own Judge Merrick Garland, the Court is unlikely to be able to resolve a close call on the validity of the Clean Power Plan. 66 Indeed, the 2016 term following Justice Scalia s passing has already seen tie decisions; in such instances, the decision of the appellate court stands. 67 The decision to provide an en banc review of the pending litigation here may indicate the D.C. Circuit recognizes the potential for such a scenario in the context of the Clean Power Plan, and therefore the import of its own ruling on the matter. The delayed hearing date also carries the likely side effect whether intentional or not of postponing a determination on the validity of the Clean Power Plan until after the November 2016 presidential election. 68 Much like the outcome of the litigation, the election itself, inasmuch as it affects the process to fill Justice Scalia s seat, could have significant ramifications not only for the Clean Power Plan, but for the future of Chevron deference. PART THREE: WHERE HAS ALL THE DEFERENCE GONE? What s next for Chevron deference after the dust has settled on the Clean Power Plan litigation? The answer to that question is, of course, largely dependent on both the determination of the D.C. Circuit and the outcome of the 2016 presidential election, which could significantly affect the composition of the Supreme Court that would undertake any review of the appellate court s decision. If the recent trend scaling back Chevron continues through the resolution of West Virginia v. Environmental Protection Agency, the implications for regulated entities could be significant. A decision accepting the petitioners rationale that the rulemaking represents an extraordinary circumstance of the nature contemplated in King v. Burwell could open the door to increased challenges of administrative agency rulemakings on such grounds. While such a decision would by no means do away with Chevron deference for all administrative agency rulemakings and adjudicative decisions, courts would and likely will, regardless of the outcome of this litigation have to grapple with the threshold of significance beyond which an administrative action carries so much weight that it is removed from the Chevron framework. Or instead, the determination may be that the validity of the Clean Power Plan should be evaluated using the Chevron framework, but that nonetheless, the Agency s interpretation of the Clean Air Act in enacting the Clean Power Plan is unreasonable and should not be accorded deference. Such a decision, in keeping with Utility Air Regulatory Group and Michigan v. Environmental Protection Agency, would recognize the utility of the Chevron doctrine in resolving complex questions of legal policy there are, after all, still practical reasons why courts might wish to give weight to the particular knowledge or technical expertise of an administrative agency while at the same time continuing to place the brakes on what some members of the Court have suggested is an overstep of the separation of powers, solidifying a trend to take the responsibility of legal interpretation away from Executive Branch agencies where the political stakes are especially high. Even if EPA s rulemaking is accorded deference and determined reasonable, there is much to struggle with in the Court s recent treatment of Chevron. Ultimately, the Court s jurisprudence of the last few years represents a fundamental questioning of the bounds of the Chevron doctrine. The Clean Power Plan litigation is an extension of this continuing trend. Given a seeming willingness on the part of the Court to walk back, at least to some degree, the authority it has handed over to Executive Branch agencies over the last several decades, the interpretive power that the agencies once held may necessarily shift elsewhere. The 114 th Congress has the lowest tally of enacted laws of any Congress in the past forty years; the number of laws enacted by this Congress stands at only a quarter of those passed during the 95 th Congress, the high water mark in that time period, and less than a third of those enacted during the 99 th Congress, the Congress in session at the time Chevron was decided. 69 It seems fair to assume, then, that statutory ambiguities are unlikely to be resolved through the enactment of new legislation in the near term. This dearth of lawmaking activity is perhaps a driving force behind the Chevron deference problem: as Executive Branch agencies increasingly take on rulemaking and enforcement responsibilities, stepping in, so to speak, to fill the void in the wake of an inactive Legislative Branch, the judiciary has expressed a growing discomfort with administrative agency actions that it perceives to border on the legislative. The Court s recent jurisprudence, particularly in King v. Burwell, questions whether this cession of quasi-legislative power to the Executive Branch is wise in the case of major policy decisions. But in a world with less Chevron deference and without an active Legislative Branch, what happens when power is wrested from the hands of administrative agencies? The answer, at least for now, appears to be that the judiciary will bridge the gap with its own interpretation of how the law should apply; or, in Chief Justice Roberts words, [courts] do not defer to an agency s interpretation of an ambiguous provision 19

unless Congress wants us to, and whether Congress wants us to is a question that courts, not agencies, must decide. 70 Courts, then, will play an important, and, in all likelihood, a growing role in the outcome of key policy questions that, in the past, may have been the subject of relatively protected administrative decisionmaking processes. For regulated entities affected by environmental rulemakings and adjudications, this trend could be at once empowering and anxiety-inducing. Where administrative agency actions are more susceptible to challenge, some may perceive an increased ability to question agency decisions rather than accepting that they will be accorded deference. But with the potential for more litigation on the horizon, regulated entities may find themselves with reduced certainty, particularly as to both the application and the interpretation of agency-promulgated rules. CONCLUSION While it remains to be seen whether the resolution of the Clean Power Plan litigation will mark a continuation of the Court s recent trend limiting the applicability of Chevron and the deference accorded to administrative agencies thereunder, it has become clear that the separation of powers tensions that underlie Chevron trouble at least some of the Justices. When Congressional lawmaking activity is at a historical low, it seems naïve to think that Congress will step in to fill the gaps created by prior legislative ambiguity which could mean increased judicial interpretations of complex, and in many cases, highly technical, legal schemes. For regulated entities, particularly in the field of environmental law, the will of the judiciary may increasingly shape the future. 20 ENDNOTES * Julia E. Stein is a senior associate in the Los Angeles office of Pillsbury Winthrop Shaw Pittman LLP, a member of the firm s Environment, Land Use, & Natural Resources practice group, and a member of the State Bar Environmental Section Executive Committee. She focuses her practice on environmental litigation, regulatory compliance, and land use matters. 1. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984). 2. Auer v. Robbins, 519 U.S. 452 (1997). 3. King v. Burwell, 135 S. Ct. 2480 (2015). 4. Petition for Review, State of West Virginia, et al. v. Environmental Protection Agency, No. 15-1363 (D.C. Cir. Oct. 23, 2015). 5. Chevron, 467 U.S. at 840. 6. Id. 7. Id. at 859. 8. Id.at 845. 9. Id. at 842-843. 10. Id. at 843. 11. Id. at 844. 12. Id. 13. See, e.g. Regions Hosp. v. Shalala, 522 U.S. 448 (1998); Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007); Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009). 14. United States v. Mead Corp., 533 U.S. 218, 229 (2001). 15. Immigration and Naturalization Service v. Aguirre- Aguirre, 526 U.S. 415, 424-425 (1999). 16. Aguirre-Aguirre, 526 U.S. at 425. 17. NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251 (1995). 18. Id. at 254. 19. Id. at 256. 20. Id. at 256. 21. Id. at 256-257, 264 (internal citations omitted). 22. Mead Corp., 533 U.S. at 226. 23. Id. at 224. 24. Id. at 233. 25. Id. at 226-227. 26. Id.. at 231. 27. Auer, 519 U.S. at 454-455. 28. Id. at 461. 29. Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326, 1339-1344 (2013) (Scalia, J., concurring in part and dissenting in part). 30. Id. at 1341, 1342. 31. See City of Arlington, Texas v. Federal Communications Comm n, 133 S. Ct. 1863 (2013). 32. Id. at 1868 (italics omitted). 33. Id. at 1875 (Breyer, J., concurring in part and concurring in the judgment). 34. Id. at 1875-1876. 35. Id. at 1877 (Roberts, J., dissenting).

36. Id. at 1880. 37. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S. Ct. 2427, 2446 (2014). 38. Id. at 2442 (internal citations omitted). 39. Id. at 2442-2446. 40. Perez v. Mortgage Bankers Ass n, 135 S. Ct. 1199, 1213 (2015) (Scalia, J., concurring). 41. Michigan v. Environmental Protection Agency, 135 S. Ct. 2699 (2015). 42. Id. at 2711-2712. This trend has continued into mid- 2016. In Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016), the Court considered whether employees at a car dealership should be entitled to overtime pay. The appellate court had deferred, under Chevron, to the Department of Labor s definition of salesman in a 2011 regulation promulgated under its authority to regulate pursuant to the Fair Labor Standards Act. The Court found instead that the 2011 regulation was not entitled to Chevron deference because the Department had not offered enough of a reasoned explanation for that regulation s departure from the Department s existing enforcement policy. 43. King v. Burwell, 135 S. Ct. 2480, 2488-89 (2015). 44. Id., quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000). 45. Id. at 2489. 46. Id. 47. 80 Fed. Reg. 64966 (Oct. 23, 2015). 48. Petition for Review, State of West Virginia, et al. v. Environmental Protection Agency, No. 15-1363 (D.C. Cir. Oct. 23, 2015). 49. 79 F.R. 34830 (June 18, 2014); Clean Air Act, 42 U.S.C. 7411(a)(1). 50. News Release, Environmental Protection Agency, EPA Proposes First Guidelines to Cut Carbon Pollution from Existing Power Plans/Clean Power Plan is flexible proposal to ensure a healthier environment, spur innovation and strengthen the economy (June 2, 2014). 51. Id. 52. State Petitioners Motion for Stay and for Expedited Consideration of Petition for Review at *15, State of West Virginia, et al. v. Environmental Protection Agency, No. 15-1363 (D.C. Cir. Oct. 23, 2015). Environmental Protection Agency, No. 15-1363 (D.C. Cir. Feb. 19, 2016). 54. Opening Brief of Petitioners, supra note 53, at *23 (citing to Utility Air Regulatory Group, 134 S. Ct. at 2444 and King, 135 S. Ct. 2489). 55. Id. 56. Opening Brief of Petitioners, supra note 53, at *33. 57. Opening Brief of Petitioners, supra note 53, at *35-36. 58. Respondent EPA s Initial Brief at *24, State of West Virginia, et al. v. Environmental Protection Agency, No. 15-1363 (D.C. Cir. Mar. 28, 2016) (quoting Miss. Comm n on Envtl. Quality v. EPA, 790 F.3d 138, 150 (D.C. Cir. 2015)). 59. Respondent EPA s Initial Brief, supra note 58, at *41. 60. Id. 61. Id. 62. Respondent EPA s Initial Brief, supra note 58, at *43. 63. Respondent EPA s Initial Brief, supra note 58, at *42-43. 64. See Reply Brief of Petitioners on Core Legal Issues, State of West Virginia, et al. v. Environmental Protection Agency, No. 15-1363 (D.C. Cir. Apr. 15, 2016). 65. Per Curium Order at *1, State of West Virginia, et al. v. Environmental Protection Agency, No. 15-1363 (D.C. Cir. May 16, 2016). 66. Washington Post, Clean Power Plan to get unanticipated en banc review (May 16, 2016); Bloomberg News, Full D.C. Circuit to Hear Clean Power Plan Argument (May 16, 2016). 67. See, e.g. United States v. Texas, 549 U.S. (2016); Friedrichs v. California Teachers Ass n, 136 S. Ct. 1083 (2016); New York Times, Supreme Court Tie Blocks Obama Immigration Plan (June 23, 2016). 68. National Law Review, DC Circuit Moves Directly to En Banc Review of Clean Power Plan Challenges (May 17, 2016). 69. GovTrack, Statistics and Historical Comparison Bills by Final Status, available at https://www. govtrack.us/congress/bills/statistics (last viewed Aug. 8, 2016). 70. City of Arlington, 133 S. Ct. at 1883. 53. See Opening Brief of Petitioners on Core Legal Issues, State of West Virginia, et al. v. 21