Many in the Trump Administration and on the federal bench have long railed against "Chevron deference" as the devil’s tool to expand the federal administrative bureaucracy at the expense of the legislature. In a post earlier this year, I speculated that these detractors might find themselves in a quandary as the Administration sought to put its own imprint on that bureaucracy through the rescission, revision and replacement of existing regulations. Under discussion in that blog was the effort to eliminate proposed financial responsibility regulations for the hard rock mining industry, then under challenge in the D. C. Circuit Court of Appeals.

On July 19, 2019, the D. C. Circuit gave a pretty clear response. In Idaho Conservation League v. Wheeler, the Court applied Chevron deference and approved the agency action with barely any recognition that the agency had not just revised its proposed regulation after public comment but had deleted it entirely, based on a total reversal of the agency’s position in 2016.

What Does It Mean?

Coupled with the Supreme Court decision in June upholding Auer deference to agency interpretation of its own regulations, it would appear that deference to the administrative state is firmly implanted in our judicial system, no matter the ideology of the Administration in office.

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