Chevron Doctrine Still Viable, Justice Official Says

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By Michael J. Bologna

Oct. 29 — The Justice Department's top environmental attorney Oct. 29 dismissed suggestions that the U.S. Supreme Court is ready to upend the so-called Chevron doctrine, which established a two-step process for judicial review of agency interpretations of statutes.

Assistant Attorney General John C. Cruden said there had been an “explosion of articles” from law professors and legal think tanks in recent months suggesting the demise of the precedent established by the Supreme Court's 1984 decision in Chevron U.S.A. Inc. v. NRDC (Chevron U.S.A. Inc. v. NRDC, 467 U.S. 843, 21 ERC 1049 (1984).

The commentary, premised on more recent Supreme Court rulings, asserts that the Environmental Protection Agency will see a more limited degree of deference from courts forced to make rulings on administrative rules linked to ambiguous statutory language.

But Cruden likened the predictions expressed in such law review articles to the old story about Mark Twain's response to rumors of his death: highly exaggerated.

“It's here. It's going to be there tomorrow. It is, in fact, constitutionally grounded,” Cruden told attorneys attending the fall meeting of the American Bar Association's Section of Environment, Energy and Resources in Chicago.

Two-Part Test

The Chevron precedent established a two-part test for reviews of agency actions. Initially, courts must determine if the plain text of the law is clear. In cases where the law is ambiguous, courts must determine whether an agency's interpretation of the statute is reasonable.

Cruden said legal scholars have actively questioned the doctrine following the Supreme Court's recent ruling in King v. Burwell, which examined the Affordable Care Act (King v. Burwell, 135 S.Ct. 2480, 83 U.S.L.W. 4541, 2015 BL 202885 (2015).

While Chief Justice John Roberts wrote a majority opinion affirming the Obama administration, he showed little deference to the administration's interpretation of the law. Roberts could have employed the Chevron framework to affirm the law, but he ultimately found the case to be outside Chevron‘s domain and reached his opinion on alternate grounds.

But Cruden said the King v. Burwell precedent would not affect the Justice Department's approach to a long list of challenges to EPA regulations under the Clean Air Act and Clean Water Act. He said several courts, prior to the Chevron precedent, have acknowledged that federal agencies hold wide authority to interpret statutes and act on such interpretations in their rules. He said the principles established under Chevron would be intact for many years.

“Even before Chevron was even decided, there were things like that,” Cruden said. “There were deference-like decisions. I am sure the Department of Justice is filing briefs, probably today while we are here, that talk about deference and talk about Chevron within the context of APA [Administrative Procedures Act] actions. So keep reading, it's fascinating. But make sure you separate the wheat from the chaff, because what we think of as the heart of the two-step process in Chevron, we think that is here to stay.”

To contact the reporter on this story: Michael J. Bologna in Chicago at

To contact the editor responsible for this story: Larry Pearl at

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