Kennedy’s Parting Words May Drive New Curbs On EPA's Chevron Deference

July 6, 2018

Supreme Court watchers see one of the final opinions authored by retiring Justice Anthony Kennedy as a boon to conservatives seeking to limit or overturn the landmark Chevron precedent that gives EPA and other agencies broad deference to interpret their authorizing statutes, although they say it is far from clear that any efforts will succeed.

Kennedy -- long regarded as the swing vote out of the high court's five conservatives -- announced his retirement on June 26, setting up an opportunity for President Donald Trump to appoint a successor who is expected to be far more conservative.

A rightward shift on the court could prompt efforts to reconsider many rulings, but a deference case could be at the top of the list after Kennedy called for a fresh look at the topic just days before he declared he would step down.

“Given the concerns raised by some Members of this Court, it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision. The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary,” Kennedy wrote in a solo concurrence to the immigration case Pereira v. Sessions, which the court decided June 21.

The high court’s landmark Chevron precedent holds that when an agency acts based on its interpretation of ambiguous language in an authorizing statute, courts should defer to that interpretation as long as it is “reasonable.” Chevron deference has become a bedrock of administrative law and played a key role in court decisions upholding or rejecting a swath of EPA decisions, including in recent years its power plant air toxics standards and Clean Water Act jurisdiction policy that rests on the meaning of the undefined statutory phrase “waters of the United States."

However, conservatives have increasingly seen judicial deference -- including some variants that apply to regulatory interpretations along with the statutory readings that figure into Chevron -- as ceding the judicial power to “say what the law is” to the executive branch, and have sought to limit it either through legislation or a new Supreme Court ruling.

That push got a boost last year when Justice Neil Gorsuch -- a vocal critic of deference principles including Chevron -- was seated and could take another step forward with Kennedy’s replacement, especially given the departing justice’s call for a narrower view of the subject.

“I think Justice Kennedy's frankness is a welcome sign that the court's impetus to narrow or perhaps even overturn Chevron is growing,” says an attorney at the free-market Pacific Legal Foundation (PLF), which has long opposed the deference standard and sought to scrap it.

While Kennedy’s writing in Pereira called for the justices to limit lower courts’ application of Chevron rather than overturning the precedent entirely -- describing a “troubling” trend of district and appellate court courts offering agencies “reflexive deference” without an in-depth analysis of whether that step is truly warranted -- court watchers say a Trump nominee will likely hope to go farther than that.

Kennedy's Replacement

Since none of the liberals on the court have joined a call to reconsider agency deference, any such decision would need the support of Kennedy's replacement along with the four current conservatives -- Gorsuch, Justices Clarence Thomas and Samuel Alito and Chief Justice John Roberts.

But even Roberts, seen as the most cautious of that group, has been more critical of Chevron than Kennedy, boosting the chances that there will be five votes to narrow or overturn the precedent. “[T]the people in line to replace Justice Kennedy are probably more in line with Roberts' view than even Kennedy was,” Ben Machlis, an attorney with the industry-focused firm Dorsey & Whitney LLP, told Inside EPA.

By contrast, Foley Hoag attorney Seth Jaffe says it is far from clear that the conservatives who have criticized Chevron in the past will go further and actually vote to kill it. “I haven't read all these tea leaves the same as everyone else. It's not obvious to me that there is an appetite to get rid of Chevron,” he said.

However, even if a more conservative Supreme Court does opt to narrow the Chevron test, other observers say the direct effects of that shift might be less significant for EPA than other agencies, because Kennedy was already a reliable vote against stringent environmental policies in his later years.

“In general, Roberts and Kennedy were much closer on these sorts of public health and pollution issues than they were on Constitutional and civil-rights issues,” an environmentalist attorney says, noting that Kennedy was part of 5-4 majorities in decisions against EPA on its air toxics rule for power plants and its greenhouse gas (GHG) emissions permitting program.

While Kennedy famously broke with Roberts on EPA's threshold authority to regulate GHGs in the 5-4 2008 decision Massachusetts v. EPA, that was not a result of giving deference to the agency -- rather, the high court rejected a Bush administration position that it lacked Clean Air Act authority in that arena.

However, ending or narrowing Chevron could lead to broader environmental rules rather than narrower, at least in the near term, since giving the Trump EPA less deference would mean tougher court scrutiny of its deregulatory policies.

Nonetheless, the PLF attorney says that firm and others that have long opposed both deference and broad EPA authority will keep pressing the high court to take up the issue. “I think it's good that it would affect the Trump administration -- that they would have to follow the law, instead of doing whatever they want and getting away with it because the courts aren't doing their job.”

And Husch Blackwell LLP attorney Joseph Diedrich writes at Law360 that the prospect of clamping down on Trump policies could lead to at least one liberal justice signing on to an anti-Chevron opinion.

“As agencies of the Trump administration continue to leave their mark, some justices may find themselves growing more leery about Chevron. One could envision Justice [Sonia] Sotomayor, who often views government power quite cynically in the criminal context, being willing to reexamine Chevron’s current application, at least at the margins, in a criminal or immigration case,” he writes.

Regulatory Deference

Even if the justices ultimately reject calls to trim or eliminate Chevron, it still seems likely that they will tackle other forms of deference to agencies -- in particular, the leeway regulators get to interpret ambiguous provisions in their own rules, which falls under a set of precedents known as Auer, Skidmore and Seminole Rock.

Roberts, Gorsuch, Thomas and Alito have all signed concurring or dissenting opinions signaling that they would consider narrowing or reversing those cases -- with the most recent of those being a statement on the denial of review in the case E. I. du Pont de Nemours & Co., et al., v. Bobbi-Jo Smiley, et al.

Written by Gorsuch and joined by Roberts and Thomas, the denial said the justices should step in to resolve a split in the lower courts on whether agencies should get deference for rule interpretations they raise for the first time in court.

“The issue surely qualifies as an important one. After all, Skidmore deference only makes a difference when the court would not otherwise reach the same interpretation as the agency. And a number of scholars and amici have raised thoughtful questions about the propriety of affording that kind of deference to agency litigation positions,” Gorsuch writes. -- David LaRoss (

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