Should Congress End Agency Deference?

by Snell & Wilmer

At its core, agency deference – as enshrined in the United States Supreme Court’s decision, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) – is both reasonable and necessary. Indeed, in City of Arlington v. FCC, 133 S.Ct. 1863, 1868 (2013) (citations omitted), Justice Scalia explained why the Supreme Court adopted Chevron deference, and why that deference is often desired by Congress:

‘When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions.’ First, applying the ordinary tools of statutory construction, the court must determine ‘whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.’ But ‘if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.’

Chevron is rooted in a background presumption of congressional intent: namely, ‘that Congress, when it left ambiguity in a statute’ administered by an agency, ‘understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.’ Chevron thus provides a stable background rule against which Congress can legislate: statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency. Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.

Justice Scalia believed that Congress understood that it often lacks the technical expertise to “circumscribe” precise requirements in the statutes that it enacts. Rather, Justice Scalia believed that Congress intentionally leaves ambiguities in its legislation, confident in the knowledge that administrative experts, rather than the courts, will resolve those ambiguities.

Over the intervening years, the mining industry frequently has benefitted from Chevron deference. In particular, any time a mine needs to defend a permit against challenge, its interests are aligned with those of the agency that issued the permit, and it will likely use agency deference as a defense to the challenge. Without agency deference, it would be significantly more difficult to protect permits from challenge.

Notwithstanding the merits of Chevron deference, agency deference also has rightfully received considerable criticism. In part, this is because courts have shown Chevron deference even where an agency’s decision-making has been less than rigorous. This had led to both complacency and smugness in agencies, as they have come to “know” that they will receive deference. In turn, this has led to the agencies sometimes cutting corners in their decision-making. More recently, however, the Supreme Court has begun to curtail the scope of Chevron deference. For instance, in Michigan v. EPA, 135 S.Ct. 2699 (2015), the Court refused to grant deference to the EPA, finding that EPA’s statutory interpretation was simply unreasonable.

In light of this tension regarding the scope of agency deference, on January 11, 2017, the House of Representatives passed the “Regulatory Accountability Act of 2017.” As passed, the Act would make a number of changes to federal administrative law, including a repeal of Chevron deference.  In particular, the Act would amend 5 U.S.C. § 706, by directing federal courts to:

[D]ecide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies. If the reviewing court determines that a statutory or regulatory provision relevant to its decision contains a gap or ambiguity, the court shall not interpret that gap or ambiguity as an implicit delegation to the agency of legislative rule making authority and shall not rely on such gap or ambiguity as a justification either for interpreting agency authority expansively or for deferring to the agency’s interpretation on the question of law. Notwithstanding any other provision of law, this subsection shall apply in any action for judicial review of agency action authorized under any provision of law. No law may exempt any such civil action from the application of this section except by specific reference to this section.

Thus, the Act recognizes that ambiguities exist in federal statutes; indeed, it appears to recognize that those ambiguities are often intentional. But, instead of relying on administrative experts to resolve those ambiguities, the Act directs the courts to consider the legal ambiguities de novo – that is, to consider them as if no one else had done so previously. Effectively, this would place the courts in the position of actively making law because they would have to “circumscribe” precise requirements that Congress itself failed to provide. As noted by Justice Scalia, it was to avoid this situation that the Supreme Court enunciated the Chevron deference standard 33 years ago, and has repeatedly upheld it over the intervening years.

To date, the Senate has not acted on the Act, other than to refer it to committee on January 12th. Perhaps, the Senate should amend the language of the Act, rather than to adopt it. As is, the Act is more a sledge-hammer than a scalpel. In an effort to correct the problems with agency deference, the Act also destroys all that is useful about deference. Perhaps, the Senate should take guidance from the Supreme Court’s recent agency deference decisions, and should pare back the excesses of agency deference, while leaving the core intact.

For instance, some reasonable limitations that Congress might enact, while preserving the core of agency deference, are:

  •  Require that the courts weigh the credibility of agency experts, and of any other experts who may be challenging an agency decision. In this regard, if an agency does not provide compelling expert opinion, why should the agency receive deference?
  • Require that courts only grant agency deference in areas of actual agency expertise. Thus, if the EPA decides to regulate the electrical energy grid, should it receive deference?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Snell & Wilmer | Attorney Advertising

Written by:

Snell & Wilmer

Snell & Wilmer on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.