Most of the federal government's authority is exercised, on a day-to-day basis, through its administrative agencies. Central to the efficiency of those agencies — such as it is — is the judiciary's substantial deference to agency decision-making. Without that deference, people and corporations would often have an incentive to try to impair (or at least delay) agencies' actions through court challenges.

Justices of the U.S. Supreme Court recently suggested their willingness to reconsider this bedrock principle of administrative law. In Decker v. Northwest Environmental Defense Center, 568 U.S. __, No. 11-338 (Mar. 20, 2013), the Supreme Court followed its own precedent and deferred to a particular Environmental Protection Agency (EPA) interpretation of the Clean Water Act (CWA), 33 U.S.C. § 1365, and its implementing regulations. Justice Anthony Kennedy wrote the 7-1 majority opinion holding that the CWA does not require logging companies to secure permits for water pollution resulting from stormwater runoff of logging roads.

Originally published in the Legal Intelligencer on April 24, 2013.