Deference rule may be on the chopping block

The Supreme Court today agreed to review an agency deference standard often criticized in conservative legal circles.

The justices will hear Kisor v. O’Rourke, a case that centers on veteran benefits but has broader implications for the degree to which judges yield to agency decision making. It involves an important administrative law principle often arising in environmental litigation.

The petitioner in the case, a Marine who was denied retroactive disability benefits for post-traumatic stress disorder, asked the high court to overturn a legal standard known as Auer deference, which a lower court had applied in siding with the Department of Veterans Affairs in the dispute.

Named for a 1997 court case, the standard directs judges to defer to an agency’s reasonable interpretation of its own ambiguous regulation. It’s similar to the more widely known Chevron standard, which addresses interpretations of ambiguous laws.

Like Chevron, the Auer doctrine crops up frequently in environmental cases, when EPA and other agencies construe various regulations to support policy initiatives or clarify enforcement plans. Conservative scholars and lawmakers have targeted both standards in recent years, saying they contribute to an uncurbed expansion of the administrative state.

“Getting rid of Auer deference will mean that regulatory meaning will be locked in once and for all once it’s been interpreted,” said Adam White, head of the C. Boyden Gray Center for the Study of the Administrative State at George Mason University.

If the Supreme Court ultimately agrees to scrap the standard, also known as Seminole Rock deference, judges will apply more scrutiny to an agency’s interpretation of its rules, making it more difficult for administration officials to mold existing regulations to fit their policy plans. The change would also pressure agencies to write more precise rules in the first place and tighten up existing standards that lack clarity, White said.

“That has huge ramifications for the basic dynamics of modern public administration,” he added.

The result might be less aggressive actions by agencies aware of a heightened degree of judicial scrutiny, Ohio State University’s Chris Walker said. Environmental law professor Patrick Parenteau cautioned that the development would cut both ways on the ideological spectrum.

“Deference is always a matter of perspective,” he said. “It’s good when the agency is doing what you like and bad otherwise.”

Scrapping deference standards has nevertheless been championed primarily by conservatives. Business groups, Republican-led states and others have already weighed in on the Kisor case, urging the Supreme Court to get involved.

Auer deference harms the business community by encouraging agencies to adopt vague regulations that they can later interpret however they see fit. This practice upsets the expectations of regulated parties without the notice provided through formal rulemaking,” the U.S. Chamber of Commerce told the court in an amicus brief.

While the high court has declined previous petitions seeking to overturn Auer, it’s been divided in doing so. Earlier this year, Justice Clarence Thomas dissented from one of those denials, calling the doctrine “constitutionally suspect” (Greenwire, March 19).

Justice Samuel Alito has also expressed doubts about the standard. The late Justice Antonin Scalia authored the Auer opinion but later moved to reject it.

“Overturning Auer deference was a long-time goal of Justice Scalia, who detested any intermediate levels of deference between Chevron deference and no deference,” said Robert Percival, head of the environmental law program at the University of Maryland. “With two new Justices (Gorsuch and Kavanaugh) who are Scalia acolytes added to the Court, the chances of eliminating Auer deference are better than ever.”

Read more of this E&E News article by Ellen M. Gilmer by clicking here.