Posted by Tim Dowling
When EPA Administrator Johnson announced his decision to deny California’s waiver request, one reason he gave is that global warming is not “unique” to California. He evidently reads section 209 of the Clean Air Act as requiring a denial where the problem addressed by the California rules is one shared by others outside of California. When California sues EPA (and, rest assured,it will), EPA will no doubt argue that the D.C. Circuit should defer to the agency’s reading of the Act, under a two doctrines of administrative law know as Chevron deference and Skidmore deference.
There are at least three problems with this argument.
NOTE: There is an update and correction at the end of this post.
First, Chevron requires a two-step approach. Under step 1, the court applies the plain terms of Act. Step 2 kicks in only if the Act is ambiguous, and only then does the issue of deference come into play. But there is nothing in the statute whatsoever to suggest that waivers should be approved only if the problem being addressed is unique to California. Nada. Zip. Zilch. Not a word. Waiver is required where the rules are needed to meet "compelling and extraordinary conditions." There's nothing in the act that requires the threat to public health and the environment to be unique to California. In other words, there is no ambiguity on the face of the Act regarding "uniqueness" that raise issues of deference under step 2 of the Chevron doctrine.
Second, the concept of deference, particularly Skidmore deference is rooted in part in the idea that courts should defer to the technical expertise of the agency. Here, Johnson reportedly made his decision in the face of a contrary, unanimous recommendation by his technical and legal staff. So there’s a genuine question whether the usual justifications for Skidmore deference obtain in this case.
Third, courts are less likely to give deference where the agency does a complete 180 flip-flop, as EPA did here. As reported by the San Francisco Chronicle, in granting California waivers in the past, EPA has rejected industry arguments that a waiver is warranted only where the threat to public health and the environment is unique to California:
"During President Ronald Reagan's administration, when California was trying to enforce its own tough standards for pollution from diesel engines, the trucking industry argued that the state didn't qualify for a waiver under federal law because the problem wasn't unique to California.
William Ruckelshaus, administrator of the Environmental Protection Agency, sided with the state and let its law take effect. California didn't have to prove its diesel pollution was unique or worse than in any other state, he said in his 1984 decision, as long as it was an important problem because of conditions in the state.
“When the state and environmental groups sue next month in a federal appeals court in Washington, D.C., they plan to argue that the Bush administration contradicted consistent interpretations of the Clean Air Act by Ruckelshaus and other EPA administrators of both parties dating back more than 30 years.
‘They've never said before that California conditions have to be unique’ to justify enforcement of state air pollution standards, Deputy Attorney General Marc Melnick, a lawyer for California in the case, said Thursday. He said Johnson ‘ignored the clear intention of the (federal) law’ that allows California to act as a pace-setter in combatting air pollution.
In this case, Johnson's reading of a section of the Clean Air Act, which entitles California to a waiver based on "compelling and extraordinary circumstances," seems at odds with interpretations by Ruckelshaus and other EPA administrators. The question before the courts is whether the new interpretation is an unjustified about-face or a reasonable adaptation of an old law to a new situation.
‘When courts believe that, for political or other reasons, a federal agency has shifted a long-standing interpretation of federal law, courts seem to be a lot less willing to give deference,’ said Richard Frank, executive director of the California Center for Law and Environmental Policy at UC Berkeley. Frank was a high-ranking aide to former state Attorney General Bill Lockyer and worked on California's waiver application.
Frank said the Bush administration has engaged in ‘radical shifts of interpretation’ of a variety of environmental laws and has drawn an increasingly skeptical response from the courts. He cited the Supreme Court ruling in April that found greenhouse gases to be pollutants covered by the Clean Air Act, rejecting the EPA's contrary view of the law.”
Moreover, as we've noted elsewhere, even if the Act required compelling circumstances unique to California, California has shown that it faces unique threats from global warming, in spades.
UPDATE AND CORRECTION: This post originally discussed only Chevron deference. At the Volokh Conspiracy, Prof. Jonathan Adler observed that Chevron deference derives mainly not from the agency's techical expertise, but instead from evidence in the statute that Congress delegated authority to the agency to resolve whatever statutory amibiguity is at issue. In contrast, Skidmore deference derives from several factors, including agency expertise. In my view, the matter does not break down as neatly as Prof. Adler suggests (e.g. there are cases that tie Chevron deference to both delegation and agency expertise), but his central point is well taken, and this post has been edited to discuss both forms of deference. For those interested in further reading on the subject, see US v. Mead Corp., 533 U.S. 218, and a 2007 note entitled The Two Faces of Chevron, 120 Harv. L. Rev. 1562.