In Decker v. Northwest Environmental Defense Center, the Supreme Court ruled 7-1 (Justice Breyer did not participate) that EPA’s interpretation of its own rules exempting channelized logging road runoff pollution from Clean Water Act regulation was reasonable. While the opinion authored by Justice Kennedy is a setback for environmental advocates concerned with runoff pollution from timber harvesting, there are some silver linings.
First, the Court cleared away a potential hurdle for citizen enforcement of the CWA when it held that plaintiffs could use the citizen suit provision (CWA § 305) against a polluter, even when the citizen suit inherently challenges an EPA regulatory exemption under the CWA. The CWA provides a different cause of action (CWA § 309(b)) for judicial review of EPA rules and permit decisions in federal circuit court, subject to a 120-day deadline. The plaintiffs in Decker used the CWA § 305 citizen suit provision and alleged that the defendants violated the CWA, regardless of EPA rules that arguably exempted the defendants’ pollution from regulation. In effect, the citizen suit required the court to consider whether EPA’s regulatory exemption complies with the terms of the statute itself, long after the 120-day review period for agency action expired. Nonetheless, the Supreme Court held that CWA § 309(b) does not bar the filing of the citizen suit or the court’s consideration of the EPA’s regulatory exemption. This is a significant procedural win for environmental plaintiffs and clean water advocates, and will likely result in more collateral challenges to EPA’s regulatory exemptions under the CWA.
Justice Scalia’s dissent presents another silver lining. The majority’s opinion relied heavily on deference to the EPA in interpreting its own regulations. While the text of the regulations seemed to indicate that the logging road pollution at issue in the case was subject to regulation, the EPA argued that it has always interpreted the regulations to exempt such pollution from regulation. The majority acknowledged that EPA’s interpretation was not necessarily the best read of its own regulations, but ultimately deferred to the EPA’s technical and policy expertise and held that EPA’s interpretation was reasonable. This principle is often called Auer deference (after Auer v. Robbins, 519 U. S. 452 (1997)), and the precedent directs a court to give an agency deference when the agency is interpreting its own ambiguous regulations, even in litigation.
In an amici brief filed with the Court, I and several other environmental / administrative law professors argued that the Court should limit the application of Auer deference and reconsider this precedent. Auer deference allows an agency to both make and interpret the law without public participation or meaningful judicial review. (The brief is titled Brief amici curiae of Law Professors on the Propriety of Administrative Deference; Sanne Knudsen of Washington and Amy Wildermuth of Utah deserve the lion’s share of credit for the effort.)
Justice Scalia cited our amici brief in his persuasive dissent and rebuke of Auer deference. According to Scalia, the majority opinion “gives effect to a reading of EPA’s regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right.” Instead, Scalia would toss Auer deference and “presume (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says there.” Under this approach, Scalia would have held that the pollution at issue is subject to CWA regulation as the environmental plaintiffs argued.
While Justice Scalia was the lone dissenter against using Auer deference, his views may soon have more support from the Court. Chief Justice Roberts (joined by Justice Alito) filed a separate concurrence suggesting that Auer deference should be revisited. The Chief Justice cited our law professors amici brief but was reluctant to decide the issue on amici briefs alone. Instead, he wrote: “The bar is now aware that there is some interest in reconsidering [Auer], and has available to it a concise statement of the arguments on one side of the issue.”
Given that the EPA has already revised the regulation at issue to make clear that logging road runoff pollution is exempt, the Supreme Court’s decision is just a minor loss for the environmental plaintiffs. (Kudos my old friend and former law school classmate Chris Winter of the Crag Law Center, which represented the plaintiffs superbly.) The loss is offset by the jurisdictional win, which will give environmental advocates more litigation options to challenge regulatory CWA exemptions. And long term, Justice Scalia’s dissent and Chief Justice Robert’s concurrence may be a harbinger of a new standard for holding regulatory agencies accountable to the public.