Chevron Deference, Loper and the Future of Water Law
The Chevron deference two-step is no longer. A once powerful doctrine applicable to judicial review of administrative action is overruled by Loper Bright Enterprises v. Raimondo. The outcome is no surprise, Chief Justice John Roberts long found Chevron as an inappropriate leverage of executive power over the judiciary branch.
Chevron deference required Courts to defer to an agency’s interpretation of relevant legislation unless the agency’s interpretation was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[1] Essentially, Chevron found that federal agents are the subject matter experts and thus better suited to interpret congressional intent and thereby promulgate administrative rules relevant to achieving legislative objectives. Thus, deference to the agency.
Critics of Chevron deference believe the Loper decision will usher an era of transparent rulemaking. Others, fond of strong deference to agency action, find Loper to be at odds with stare decisis and curtails agency ability to carry out congressional directives.
What is Chevron Deference?
Chevron v. Natural Resources Defense Council (or “Chevron”)was decided in the backdrop of the 1946 Administrative Procedure Act (“APA”). Congress wished to establish judicial review procedures for agency rulemaking and adjudication.
Since the APA did not clarify that legislative and regulatory interpretation weighed in favor of the agency, Chevron was the Supreme Court’s set out a two-step analysis to support deference to the agency. The first step requires the Court to recognize whether the law requires or forbids the agency interpretation of a legislative directive. If the Court finds that the agency is making an explication within the vague boundaries of the law, then the Court cannot implement its own statutory analysis. The second step of Chevron requires a finding that the agency interpretation is reasonable. However, if an agency satisfies step one, then it is very likely the agency will succeed on step two. To learn more about the Chevron two-step and how it came under review by the Supreme Court, visit our previous post: Chevron Deference, a Complicated Legacy.
What Loper Does
Loper ends the Chevron deference doctrine. The Supreme Court in this decision relied on the APA and Article III incompatibility with Chevron’s directive that the judicial branch defer questions of law to the executive branch. Further, Chief Justice Roberts argued that Chevron clouded administrative rulemaking as the “two-step” approach permitted various agency interpretations of the same legislative directive. He found that such broad allowance of agency power led to more confusion and litigation. In essence, rather than clarifying the APA, Roberts argued that Chevron complicated administrative law. It was also argued that Chevron was unconstitutional as questions of law belonged to the judicial branch rather than the executive branch as favoring legal analyses of agencies unconstitutionally empowered unelected officials to promulgate rules under the guise of poorly worded laws. This, in this Court’s opinion, is within the province of the judicial branch.
What Does this Mean for Water Law?
Not much. Water law is governed by state law, not federal law. Chevron and now Loper are applications of agency deference to federal law. Each state has its own administrative procedures act and case law supporting agency deference. So, time will tell whether we see any respective following in Oregon, Washington, Idaho, Nevada, and Utah, which all handle agency deference differently. In the meantime, we can assume that hearing officers will continue to make the gross assumption that the “agency is always right unless proven wrong”!
Conclusion
United States Senators and Representatives may be accused of relying on ambiguously written laws to avoid alienating voters by “passing the buck” on politically appointed administrative officers to interpret vague statutes in their favor. This may promote efficient and detailed law making within the federal legislative branch. This, one can argue, provides greater transparency and empowers voters to hold federal representatives accountable for inaction on important issues that were once delegated to agency rulemaking. Regardless, what is certain is that Loper will make future challenges to agency rulemaking easier.
Here at Schroeder Law Offices, P.C. we follow legal developments to ensure our clients are offered the best possible advice. If you have any questions regarding your water rights, please contact us at (503) 281-4100 or check out our website www.water-law.com
[1] 5 U.S.C. § 706(2)(A).