ELI Professional Practice Seminar
This seminar offered practitioners the most current information on the way courts view federal agencies’ decisions. Four subject matter experts—from EPA, private practice, and a leading NGO—provided a timely update covering the Chevron doctrine as it has been interpreted and applied by the Supreme Court in cases from the last term and by the D.C. Circuit.
Under Chevron, a federal agency is afforded deference by reviewing courts for its interpretation of a governing statute if Congress did not speak directly to the question at issue. Over the years, the Supreme Court has built significant case law further defining the contours of this doctrine, as well as augmenting it with both Auer and Skidmore deference.
In two recent cases, the Supreme Court revisited the rules of agency deference and set the stage for future litigation. In Decker v. Northwest Environmental Defense Center, No. 11-338 (March 20, 2013), Chief Justice Roberts clearly opened the door to a re-evaluation of the Auer doctrine, which provides deference to agency interpretation of its own rules. The concurring opinion by Justice Breyer in City of Arlington v. FCC, No. 11-1545 (May 20, 2013), will affect any case in which the agency’s jurisdiction is at issue. Finally, the Court’s decision in Christopher v. Smithkline Beecham Corp., 132 S.Ct. 2156 (2012), has left some to speculate that agencies can interpret broad and vague regulations with few restrictions.
Where do these recent developments leave the doctrine of agency discretion? What are the implications for environmental law in areas such as promulgation of EPA’s greenhouse gas regulations or the cancellation of certain pesticides under FIFRA? How else might these rulings affect environmental regulation? Participants joined our expert panel to learn more about how this will affect their practice.
Panelists:
John Cruden, President, Environmental Law Institute (moderator)
Shannon S. Broome, Partner, Katten Muchin Rosenman LLP
Pamela Campos, Attorney, Environmental Defense Fund
Thomas A. Lorenzen, Partner, Dorsey & Whitney LLP
Marna McDermott, Associate Deputy General Counsel, EPA
Materials:
Thomas Lorenzen presentation, Judicial Deference to Agency Interpretations of Statutes and Regulations: Recent Supreme Court Decisions
Marna McDermott presentation, Deference 101: Judicial Review of Agency Interpretations
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