The decision is also important because it is another in a recent
line of cases regarding the extent of agency authority to interpret
statutes. The issue was whether EPA had authority to exempt
smaller AFOs from reporting requirements, on the ground that it
foresee a situation where [it] would take any future response
action as a result of such notification[s].
Although EPA did not explicitly justify its rule on de
minimis grounds, the Court understood EPA to be making a
de minimis argument and analyzed the rule in that
context. The Court concluded that EPA had not justified a
de minimis exception, because:
an agency can't use it to create an exception where
application of the literal terms would "provide benefits, in
the sense of furthering the regulatory objectives, but the agency
concludes that the acknowledged benefits are exceeded by the
Here, the Court found that there were benefits to requiring
reporting without a de minimis exception. That was
enough to vacate the rule.
It is worth noting the concurrence from Judge Janice Rogers
Brown, who agreed that EPA had overstepped, but was concerned about
the panel opinion's summary of Chevron
as being focused on whether the agency's interpretation is
"reasonable." Stoking the anti-Chevron
flames, Judge Brown wrote to make clear that the
"reasonableness" inquiry does not apply at step one of
Chevron. Ever-vigilant, she wants to be certain that
courts do not abdicate their duty to state what the unambiguous
language of a statute means.
I don't have any problem with that. Phase I of
Chevron is an important bedrock principle. If
there's no ambiguity, there's no deference. However,
it's worth noting that Judge Brown also stated that:
an Article III renaissance is emerging against the judicial
abdication performed in Chevron's name.
Notwithstanding the congressional discussion of this issue, I
remain skeptical that any such "Article III renaissance"
is occurring. One concurrence from one appellate judge who
happens to be named Gorsuch does not a renaissance make.
Of course, the really important part of Judge Brown's
concurrence was her citation to Luck Be a Lady, from Guys and
Dolls, the greatest musical of all time.
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