On Monday, in City of Arlington v. FCC, the Supreme Court made clear that agency interpretations of ambiguous statutes are entitled to deference even where they involve questions relating to the scope of an agency’s authority or jurisdiction.  Greenwire seems to think that this is a big deal and even speculated today that City of Arlington may have altered the decision in a case challenging EPA’s determination that it does not have authority under TSCA to regulate lead ammunition.

I’m skeptical.  The decision seems plainly right to me.  As both Justice Scalia’s majority opinion and Justice Breyer’s concurring opinion make clear, this is not a pathbreaking decision and the Court, without explicitly recognizing the issue previously, has issued numerous Chevron opinions in which the statutory provision at issue went to the scope of the agency’s authority.

The bottom line is that where an agency interprets a provision of a statute it has authority to implement, Chevron requires courts to first interpret the plain language of the statute and second to defer to a reasonable agency interpretation if the statute is ambiguous.  This is not new.  It is not shocking.  And it is not rocket science.

Monday’s Greenwire story quotes Patrick Parenteau of Vermont Law School as expressing concern about the decision.  He notes, correctly, but obviously, that whether we like deference to agencies depends on whether we like what agencies do.  Yup.  He then suggests that, had this case been decided before Massachusetts v. EPA, the Supreme Court might have deferred to EPA’s interpretation of the Clean Air Act.  I don’t think so.  The majority decision  in Massachusetts v. EPA makes clear that the Clean Air Act was unambiguous.  Thus, EPA got no Chevron deference and would have gotten no deference under City of Arlington.

Finally, I note that Justice Roberts’s concern, as expressed in his dissent, is not really about Chevron and agency deference.  He simply does not like the modern administrative state.  I think he’s got the wrong argument here.  What he wants really to do is to revive the non-delegation doctrine, a view pretty much foreclosed by American Trucking Association v. Whitman.