Sarah Oh Lam:
Hello and welcome back to Two Think Minimum. Today is Wednesday, April 24, 2024. I’m Sarah Oh Lam, a Senior Fellow at the Technology Policy Institute. I’m here with my Co-Host, TPI President and Senior Fellow, Scott Wallston and TPI, Senior Fellow and President Emeritus Tom Lenard.
Sarah Oh Lam:
Today we’re delighted to have as our guest Caroline Cecot.
Sarah Oh Lam:
Caroline is an associate professor of law at Antonin Scalia Law School at George Mason University. She teaches admin law, environmental law and torts. She’s also an adjunct fellow with TPI.
Sarah Oh Lam:
In her research, Professor Cecot focuses on environmental and energy law and regulation and agency practice of cost, benefit analysis as well.
Sarah Oh Lam:
Prior to joining the faculty, she was a Postdoc researcher, and also clerked on the Second Circuit Court of Appeals.
Sarah Oh Lam:
And she served on the U.S. EPA Science Advisory Board’s Economic Guidelines review panel.
Sarah Oh Lam:
So today, thank you for joining us, Caroline.
Caroline Cecot:
Thank you for that nice introduction, Sarah. I’m happy to be here.
Sarah Oh Lam:
In the abstract of your recent article entitled “The Meaning of ‘Silence,’” it says, this article explores the potential consequence of narrowing the applicability of the Chevron doctrine, so that it excludes the type of silence at issue in Loper Bright, namely, an inconsistent silence about some non-major issue related to implementing a statutory scheme, and instead allowing that silence to create an inference against the agency’s resolution.
Sarah Oh Lam:
There are a lot of like logical things to piece apart here. Could you explain your article first and the mechanics of interpreting Congressional silence.
Caroline Cecot:
The jumping off point for this particular article is, of course, the Supreme Court hearing oral argument in Loper Bright Enterprises this term, so that the case specifically is about the meaning of a provision of the Magnuson-Stevens Act.
Caroline Cecot:
Basically, if an observer is required on board a domestic vessel who should pay for that observer?
Caroline Cecot:
But the case, you know all the attention is about how the court and any court should approach answering that kind of question.
Caroline Cecot:
Because the issue that the Supreme Court took cert on, and here I’m just going to quote, this is whether the court should overrule Chevron, or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute, does not constitute an ambiguity requiring deference to the agency.
Caroline Cecot:
When I heard that that question presented, I immediately worried about that second part. Honestly, more than that first part, and I’ll explain a little bit. Why, but it it kind of starts out with Chevron, which was a 1984 case about the interpretation of a provision in the Clean Air Act.
Caroline Cecot:
In that case the EPA under President Reagan adopted a more flexible interpretation of when a source would trigger stringent standards.
Caroline Cecot:
The Supreme Court then had to sort out whether this more flexible interpretation was authorized by the statute. And this is a super important question, because an agency always has to follow what Congress authorized it to do.
Caroline Cecot:
But in this case the statute wasn’t clear about what the agency was allowed to do in this specific situation. Instead, you know, the statute had broad definitions. It discussed the importance of balancing pollution reduction with economic growth.
Caroline Cecot:
In the face of this silence from Congress about this detail, the court felt like realistically, it had two options: option one, make some decision on this question, despite not having any expertise on the subject matter, the statute, and the appropriate balancing of competing interests or option two, allow the agency to make this choice as long as the agency’s decision is within reasonable balance, and that’s that deference part.
Caroline Cecot:
The court went with option two, thinking that you know, between the agency and the agency, the agency should be the one to make these kinds of implementation calls that arise when a statute is not clear, or, as the court sometimes stated, in that Chevron decision, silent.
Caroline Cecot:
That’s the Chevron doctrine in a nutshell. It’s sort of a rule of thumb the court uses in cases where statutory text really doesn’t provide a clear answer.
Caroline Cecot:
But notice that the Chevron doctrine is neutral, then the Chevron case itself, it allowed an agency to take in essence a deregulatory action.
Caroline Cecot:
It can and has been used to allow an agency to take a more aggressive agency action.
Caroline Cecot:
But over time the Chevron doctrine became sort of associated with judicial acquiescence to sort of ever increasing grabs of power by the agency. And this started, I think this started what you know, I think is an anti-Chevron movement, and this is why I think we see this question now before the court.
Caroline Cecot:
This isn’t the only anti-agency flexibility kind of movement that’s come before the court. In 2022, the court decided a different case, West Virginia versus EPA. And this case was about EPA’s provision interpretation of a different provision of the Clean Air Act, and in that case the EPA under President Obama had issued a rule regulating power plants that designated the best system of emission reduction as something closely related to a cap-and-trade program.
Caroline Cecot:
The language there again, was broad cap and trade as a system. The idea of a best system seems to give the agency a lot of discretion. So in another time the court might have just focused on whether the agency’s interpretation of this provision was reasonable, which would be the Chevron doctrine.
Caroline Cecot:
But the court went a completely different route. And essentially it flipped the default. It basically said that because the statute didn’t clearly allow the agency to do what it wanted to do, then the agency couldn’t do it.
Caroline Cecot:
That’s a huge change because it just completely changed the default of what the agency can do when there’s an ambiguity. But, importantly, here it limited that default shift to major questions. For non-major questions the agency presumably would have retained the discretion to make a reasonable interpretation of an ambiguous statutory term just no longer for the major questions.
Caroline Cecot:
But that’s why I immediately honed in on that second part of the question that the court took cert on in Loper Bright, whether the court should clarify that statutory silence concerning a controversial power expressly but narrowly granted elsewhere, doesn’t constitute an ambiguity requiring deference.
Caroline Cecot:
At first glance this sounds like a smaller move than overruling Chevron entirely.
Caroline Cecot:
But the problem is that if you look at the petitioner’s arguments, they’re not really, let’s not defer to the agency’s interpretation. The arguments are more about, look if a statute is silent here in one provision, but explicit over there, then this clearly raises an inference that the agency can’t do that in the silent provision.
Caroline Cecot:
In the Magnuson-Stevens Act to make this a little more concrete, the provision allows the agency to require observers on domestic vessels, but it doesn’t say anything about who pays for the observers.
Caroline Cecot:
Now there’s a set different provision about a specific fishery, and there the statute says that the industry has to pay for the observers, but in a specific cost sharing way.
Caroline Cecot:
The petitioners basically say that the silence in the first provision gives rise to the inference that the agency can’t make the industry pay for the observers, because if Congress allowed it to do that, it would have been explicit, like it had been somewhere else.
Caroline Cecot:
That’s not just giving deference to the agency, that’s not just denying the agency deference and then figuring out the meaning on its own. This is the option one that the Chevron Court didn’t pursue. This is more like a default, shift from ambiguity, equaling agency, discretion to act, to ambiguity, equaling no agency, discretion to act aka, a major questions doctrine kind of move. But for a minor question, or at least no one argues or thinks that this is a major question in this particular case. I was worried that the court might see this as this smaller carve out maybe a way of gaining consensus, not overruling Chevron.
Caroline Cecot:
But that it actually would be much worse. I wanted to make clear that this would not be a small move, but a large move that it would likely apply in a lot of cases, because Congress is often inconsistent, and, you know, has iterative amendments to statutes. Often, you know, dealing with some issue and creating this inconsistency.
Caroline Cecot:
I wanted to make clear that this kind of presumption would not likely give the right answer in many cases, could have devastating consequences, and would be difficult for Congress to even legislate around, because by definition it doesn’t just apply to major questions. It applies to really any questions that later, we think might be as it says, controversial.
Scott Wallsten:
What are some of those devastating consequences?
Caroline Cecot:
That was meant to be a more general statement in that it could right in the hypothetical. But I do look at this through the lens of the fisheries context, because it’s actually useful to look at the fisheries context in this way. When I went back to look at why we have this quote inconsistent silence, right like, why is it that the statute doesn’t say anything about costs here and says something here.
Caroline Cecot:
It turns out that Congress held a lot of hearings right before it was going to reauthorize the act, where this inconsistency kind of arose.
Caroline Cecot:
And in these hearings it heard a lot of testimony about how we need more information about the quality, how many catches folks are doing, what’s the level of the fisheries that healthy? We need more information, and a lot of the conversation was about like look in the past we only required observers on foreign vessels, and that was fine, because most vessels were foreign vessels, and we got a lot of information this way.
Caroline Cecot:
But now it’s not fine, because the industry is becoming more and more American, and we just simply do not have enough data without having observers come. In particular, this kind of came to a head, because that one fishery council, this was the North Pacific Council.
Caroline Cecot:
It basically alerted the main agency that we just don’t have enough information to make regulations that we can say are going to adequately protect the fishery because of this problem. And the Management Council, the Regional Management Council, it actually decided to require observers on domestic vessels.
Caroline Cecot:
Even though there wasn’t at that time clear authorization in the statute. The statute just had a provision “do what’s necessary,” but it didn’t have anything specific about observers on domestic vessels. But the Fishery Council just did it. And they said, Industry, you’re just going to have to pay for it, and the way it did it wasn’t that everybody had to have an observer. It was large vessels, and then some percentage of small vessels.
Caroline Cecot:
The industry was immediately like this is so unfair, this creates if you get stuck with the observer, you’re paying this cost, but someone else is going to have a competitive advantage. And the Council basically said, go to Congress, plead your case, but we’re doing this right. And Congress heard the industry, basically representative after representative say, we totally support having the observers in the sense that we get that if we don’t have enough data, the whole fishery will collapse.
Caroline Cecot:
And we will be out of jobs because we won’t have anything to do when the fishery collapses. We want this, but we just need it to be fair, and it’d be great if the taxpayers would pay something or maybe if we can spread the costs in some way. And Congress basically laughed at them and said, no taxpayers are not paying for this, but fine, we’re going to let you spread the costs. Then they added this explicit authorization that a management Council could require domestic observers, and then it also added the special provision about the North Pacific fishery, and about this cost sharing which in response to their efforts to kind of get this. To your question, devastating context, the fisheries example.
Caroline Cecot:
It’s a little bit off the beaten path on what sometimes some of these cases are usually about the clean air act, etc. But it’s actually nice in this context, because it’s kind of easier to see potentially devastating consequences in that. I guess the worst that could happen is that the fishery collapses right? And that’s sort of a kind of a clear consequence.
Tom Lenard:
I have a question as to whether in the broader context, whether this is an inconsistency.
Tom Lenard:
As I understand it, Congress authorized this in some cases, the fishery has to pay for whatever, but they authorize this particular thing for some cases, and they didn’t authorize it for other cases, so it’s not that they didn’t know such a mechanism existed.
Tom Lenard:
The fact that they didn’t authorize it in these other cases could be viewed as just an expression of Congressional intent rather than an inconsistency? Or am I?
Caroline Cecot:
Right. The question is, what’s the intent? I’m kinda curious, Tom. What do you think would be the intent? Going back to the legal, that’s exactly it. At bottom line the agency is only authorized to do what Congress allowed it to do. What a court is doing is it’s trying to figure out, what did Congress intend? Did you intend the agency have this power? Did you not intend the agency to have this power, and sometimes Congress is explicit. Sometimes it even says we’re not going to decide it, but you decide this. And the courts, they don’t love that, but they’ve been okay with that, at least in recent years. We’ll see what happens with a different doctrine.
Caroline Cecot:
The non-delegation doctrine. For now the agency is allowed to make decisions that Congress explicitly gives to the agency. But the question is, what kind of assumptions do you make from this history here? What would have been Congress’s intent?
Tom Lenard:
Well, it seems to me there are two alternatives. One is that what the statute says or doesn’t say is Congress’s intent, the other is, it’s just kind of an oversight sloppy drafting, or whatever. I’m not sure if there are other alternatives or alternative interpretations.
Caroline Cecot:
As a side note, I love that you kind of listed everything the court had considered in Chevron. Actually the majority written by Justice Stevens, I believe, kind of goes through all the reasons that we might not have an answer on a particular question, and it’s that maybe the Congress left it to the agency, or maybe Congress just didn’t know that this was going to be an issue cause they don’t have expertise, or maybe they couldn’t agree on it, and the court even says something like it matters not for our purposes. The point is, we shouldn’t probably make that decision.
Caroline Cecot:
Or the agency that if anyone’s going to make that kind of decision, regardless of these reasons, it should be the agency. Now, in recent years, I wouldn’t say that every member of the current court is sort of comfortable with all of those.
Caroline Cecot:
Like if it’s that this was left intentionally to the agency for expertise, then I think that’s probably the one that most are on board with. If it’s that Congress didn’t think of it, there’s some that might say that it needs to go back to Congress to think of it right. But then, of course, that’s a delay that’s going to mean that there’s no action until Congress can actually come together. And then that last one, there’s no agreement on something, some might say that that might be the worst, that’s why the agency shouldn’t act in those cases, and that needs to go back to Congress. And possibly that’s the major question space.
Caroline Cecot:
That the question, so major it couldn’t be that they couldn’t think of it or it just hadn’t arisen, and we want them to think about it, or something along those lines.
Caroline Cecot:
In this case I’ll tell you, in the article I don’t want to necessarily. I don’t think I need, I didn’t think I needed to in the article persuade anyone that the best interpretation is that the agency has the ability to require the industry to pay for observers.
Caroline Cecot:
I just wanted to raise the possibility that an inference against the agency, just looking at the text and not doing work on thinking about the context could be dangerous, and it could lead us to a situation with drastic consequences.
Caroline Cecot:
Because there’s really two ways to think about what happened with Congress in that case, kind of building off of what you said, Tom. Congress could have maybe wanted taxpayers to pay for it in those other cases, but then said that we’re going to help out this one in it, but we’re going to actually make this one industry that really needs it now pay for it using user fees, which is kind of a weird way to think about what happened in this case. Or the alternative, which is kind of much simpler is that Congress wanted to make clear that all regional councils can do this if they think it’s deemed necessary, important that that fits into that language. And then it allowed the North Pacific Council, upon the industry’s explicit request to collect these user fees that would be fair and equitable.
Caroline Cecot:
Which would be just sort of this unremarkable idea that Congress responded to the lobbying efforts of a specific industry to allow them a modest change that would retain industry funding, but enable more equitable distribution of costs.
Tom Lenard:
Is there a difference in terms of the broader applicability of the Chevron doctrine in this, in the case of fisheries, which are basically to set their self their self regulatory bodies? They have these Fishery council, I think that’s and so it’s a little different than maybe an EPA regulation which is promulgated by the EPA. And here we’re talking about something that was promulgated by this Fishery Council, which is presumably a group of the people of the owners of the fishery in the particular fishery. Does that make a difference as far as the broader applicability?
Caroline Cecot:
Yeah. You’re right that this is an interesting kind of statute where they have these regional councils and they’re made up of, they have these membership requirements of who has to be on the council what folks are represented on this Council.
Caroline Cecot:
They create these plans, the plans then go up to the agency which here is, I think it’s no official fisheries that has the plans and then has to approve them. The Federal agency is in the role of approving a plan.
Caroline Cecot:
Right? And this is a little, you’re absolutely right, this is different than when EPA promulgates a rule, explicitly interpreting some provision of say, the Clean Air Act. I’ll mention a little bit of a plug in the sense that my paper was part of a symposium around this case.
Caroline Cecot:
And different articles talked about different aspects of this, and some talked about maybe particular roles of expertise. Some talked about just more generally ramifications of Chevron and some talked about whether this statute is just maybe a weird case. If the question is it possible that the court might do something that’s tied to this specific statutory scheme where there’s no deference, or there is deference, but leaves open the overruling of Chevron for another day.
Caroline Cecot:
Maybe, maybe, but I mean at the end of the day, I don’t think anyone would, well, I don’t think there’s any theory of deferring to a non-typical agency. At the end of the day, this is still typical in the sense that it’s really, the Marine Fisheries Service, that’s the National Marine Fishery Service that’s interpreting whether this is possible, and by approving it they’re saying, yes, this is the authority that we have that we’ve sort of delegated for you to give us a proposed regulation, but we are now adopting it. I don’t know in that sense it’s not that unique.
Sarah Oh Lam:
What do you think the court will do with Loper Bright? You think it really is the end of Chevron or do you think they’ll narrowly thread the needle?
Caroline Cecot:
I hope the court doesn’t create a minor questions doctrine that creates a presumption against agency action for inconsistencies mostly because in a space that you mentioned, some of my work is on cost benefit analysis. In a space that I see this a lot is in more other statutes, whether the EPA is allowed to consider costs. And it turns out Congress is very inconsistent. Sometimes it says the agency could very explicitly, sometimes it doesn’t even when it seems like that the agency should be able to consider costs. I think a presumption that just kind of knee jerk, silent, but there, said the word cost. This means that you can’t. I think this kind of presumption would be dangerous, and I think the court in each case should put in work to see what it actually thinks Congress intended in that specific case.
Caroline Cecot:
I hope they don’t do that in the guise of making a smaller move. But as for Chevron, I’m of two minds in the sense that some deference seems to be unavoidable in that a lot of times the court just really doesn’t know. It’s just going to naturally respect the view of what the agency thinks and sometimes it might have a view. Right? It’s not that I don’t think Chevron definitely has an effect.
Caroline Cecot:
But I don’t think overruling Chevron means that the agency never gets any say at all.
Caroline Cecot:
I guess I’m in the camp of, I think they might, they might overrule Chevron. But there’s a chance that on the ground things might not look that different for many cases. But there might be some big ticket cases where we are going to see more inconsistency. The part about it that I think is going to be rough, that I don’t know if those that support overruling Chevron really think about is that this definitely will make more circuit splits.
Caroline Cecot:
To the extent that some statutes will tell petitioners that they have to file in the DC Circuit for these kinds of issues, but some statutes don’t.
Caroline Cecot:
We might have more situations where we’ll have the Fifth Circuit upholding or vacating some rule, we’ll have the DC Circuit coming out differently. I hope the Supreme Court is prepared to take on more cases to resolve these, so that we’re not living in a world where we have a lot of uncertainty about the application of law.
Sarah Oh Lam:
What are your views of separation of powers like who really is which institution is good at these calculations like, is there a major calculation doctrine? Should Congress be doing cost benefit calculations, or can the courts do this when there’s ambiguity or the agencies are best? Is there a better system or way to think about calculations?
Scott Wallsten:
Could I add, I want to add on to Sarah’s question? Related this, I think this is related, which is, even though I mean this, these are important legal questions, and the answers matter a lot to the parties involved. But, like in the fisheries example, the fees are pecuniary transfers. Right? They’re not necessarily inherently real economic effects. What are the different kinds of economic effects of different outcomes of Chevron, and what the court is silent on, and then I think that feeds into Sarah’s question.
Caroline Cecot:
Scott, let me start with your question, and maybe we’ll come back to that. You’re right, right? This particular question is not so much about efficiency. It’s more about sort of distribution, equity, or other kinds of things that are very important to folks. Right? It’s not about whether there are observers, how many observers, it’s about who’s paying for them. Right? You’re absolutely right that the stringency, or whatever, this is not what this is about which isn’t also a different kind of this makes this a little bit of a different context, too.
Caroline Cecot:
Right? The court is deciding essentially whether Congress had some intention about that distributional aspect when it allowed the agency to set certain standards, right.
Tom Lenard:
To do with actually the regulations of the fishery in terms of preventing over fishing. It’s just it’s kind of it’s not really a part of that regulatory scheme. Is that right?
Tom Lenard: [
The observer rule is] just to gather information for whatever purpose. But it doesn’t have to do with the central purpose of the fishery regulation, which is to have quotas, or whatever to prevent overfishing. I mean.
Caroline Cecot:
Correct. The impetus for this and actually one other thing that was added in that same amendment process that led to the inconsistent silence was the need for data in order for the regulations to make sense. I guess in the way that this, you’re right, Tom. In a way this does relate the provision it’s about. It’s distribution who’s paying for something. It’s not changing the requirement. The requirement is almost an input to an eventual cost benefit analysis, right? Or some what would be a science based evidence based regulation that will ensure that a fishery doesn’t collapse. Right? It’s about collecting that data on the health of the fishery.
Tom Lenard:
I have another additional thing to Sarah’s question about who’s best equipped to do this. Well, because it’s kind of a little bit about this the issue of silence. I mean, Congress has from time to time, I mean there’ve been discussions about having cost benefit analysis as part of the legislative process, and having CBO do cost benefit analysis before a law is passed or considered. The fact that there is no such requirement and they don’t do that, that’s kind of another silence. Right?
Caroline Cecot:
Agencies have been doing cost-benefit analyses as part of their significant regulations pursuant to executive order, which is basically just the President saying to his personnel, do this because I think it’s a good idea. And this started back with President Reagan’s Executive Order 12291 was replaced by President Clinton’s Executive Order 12866, which is the one currently in effect. Now, when the agency does this, if the statute says the agency can’t rely on costs, then the agency kind of does this and then has to ignore it. Or else they’re going to be in court and they’re going to face serious problems. One provision that’s been interpreted to not allow the agency to consider costs is, for example, the provision setting the national ambient air quality standards under the Clean Air Act.
Caroline Cecot:
EPA still does these cost benefit analyses, but it can’t use them to support whatever standard it wants to set before other things. These cost benefit analyses could be influential as long as the agency is allowed to consider costs. Which is why this is an important question, because even when Congress, I mean cost benefit analysis has essentially thrived in the silence of statutes, right? It’s thrived in those spaces where Congress didn’t say you can’t consider costs.
Caroline Cecot:
Everyone sort of is agreeing that it’s a good idea for the agency to kind of look at both the benefits and the costs before it commits to some kind of an approach. And that’s where it’s thrived. And I guess your question is sort of like, Congress has sometimes thought about doing a crosscutting mandate, has never adopted it. Should we read into that? That maybe it doesn’t want that? And that’s part of this. That’s the dangerous game of when Congress, of reading so much, making huge inferences on whether Congress acts in one specific case doesn’t act in another. I mean a lot of times. First of all, Congress is many. Congress is different over time and a lot of times it’s just reacting to whatever comes before its face on that day. There’s an emergency here, they have to do this, and they have this information for it. It’s difficult. I think agencies have adopted, I think the reason the original Reagan executive order was not just gotten rid of or replaced by President Clinton and has been has stuck around is that a lot of folks think it’s useful for the agency to have this information, and a lot of folks think it’s useful to the public and I think it’s useful for the executive branch in general to just know what the agencies are working on, because there’s other provisions about kind of informing folks about what agencies are working on that makes this last.
Caroline Cecot:
That said, just to comment on your last point, you’re absolutely right. There have been proposals, even these scholarly proposals a lot of times by the folks that would want to put more of this back on Congress. Usually folks who are maybe in support of.
Caroline Cecot:
I didn’t talk about the non-delegation doctrine. But that’s essentially a constitutional provision that would say, Congress can’t just give certain things to the agency. If it’s not clear that just means the statute’s completely invalid. And all this Congress just goes back to drawing board until it gets it clear and makes these policy choices. The court hasn’t vigorously enforced this, but some folks want to, and Justice Gorsuch has written about this already in support of having more enforcement about this, usually those that would support that usually also would support Congress having more folks within staff, or even something like an OIRA or CBO specifically doing cost benefit analyses of proposed legislations.
Tom Lenard:
To get to the prediction stage again, is it fair to say that the court will split essentially along the liberal conservative lines, that the liberals want expansive agency, want the agencies to have expansive abilities to do a lot of things, and conservatives want to restrain them, and that’s the way the decision will come down?
Caroline Cecot:
Possibly. I think, yes, I think I’m, I think I first of all, I hate making predictions. I’m terrible at this, please don’t.
Scott Wallsten:
You just have to give a probability that way. You can’t be wrong.
Caroline Cecot:
That’s a great point. I mean, I like the role of seeing what the court does, and then figuring out what effect this will have. That’s where I feel more comfortable. I mean, I think that with just everything that’s happened and the changes on the court, I do think they’re going to end up overruling it this time. But I’ll make a small comment maybe a hedge, which is, and maybe this also explains why I was more worried about a potential carveout that actually is worse than overruling Chevron.
Caroline Cecot:
A few years ago, the court was faced with a similar question. It was about whether the agency should be able to interpret its own regulation.
Caroline Cecot:
Okay, this is different than an agency interpreting statute, which is what Congress wrote. This is about the agency interpreting its own regulations. On one hand, it’s like, oh, yeah, of course they wrote it. They know what it’s about, right? They can tell us what they meant. But, on the other hand, it’s like whoa, but that could be really dangerous. What if they write very vague regulations? And then no one knows if they’re subject to an enforcement action unless the agency just feels like it, and that could vary from different administrations.
Caroline Cecot:
The prior doctrine was very deferential to the agency’s view.
Caroline Cecot:
When this came before the court, a lot of folks thought, because when it came to Chevron deference, or this was called Auer deference, a lot of folks said that Auer deference is the worst of the two, right? You definitely don’t want the same entity both making law and interpreting then later with broad discretion, because then there’s no check, really no court check.
Caroline Cecot:
Surprisingly, the court kept Auer deference. It’s now called Kisor Deference. It was a different court, though, but the opinion was written by Justice Kagan, and she basically doubled down on the limitations like, look, we keep it. But you don’t just get deference all the time for any kind of ambiguity, I mean, if you’re just kind of creating more ambiguity, or if it’s unclear in this way, or if it’s outside the scope. There are all these bounds put on it.
Caroline Cecot:
If Chevron had come before that court, I would have thought certainly it would be kept, but that the step two analysis would be strengthened.
Caroline Cecot:
And Justice Scalia, when he was on the court, he talked about this a lot like he thought number two was not just defer if you’re at step two, which is, look the statute’s ambiguous, we have to see if what the agency did was reasonable. If you’re at step two, Justice Scalia was like, this is still a lot of work. There’s a scope to an ambiguity. You could be completely outside of that scope like, yeah, this is ambiguous, but that doesn’t mean that you go and do this particular thing.
Caroline Cecot:
I would have thought that that court would certainly just be more rigorous about step two. And I’ve read about that, too, and I am in support of that kind of a move. This court, though I think I think we might see Chevron overruled.
Sarah Oh Lam: I
’ll ask you more controversial questions. The net neutrality Title II FCC regulation will probably come up to the Supreme Court soon-ish and that is a ping pong game of whether the FCC has authority, [and the agency] changes its mind every Presidential Administration on the classification of broadband services under Title I or Title II of the statute. It would be easier if Congress was clearer. But what do you think? How does that case fit into the recent cases?
Caroline Cecot:
In full disclosure, the last time I really seriously thought about net neutrality, I was Scott’s research assistant.
Scott Wallsten:
And nothing has changed since then.
Caroline Cecot:
But I’ll tell you, in general, that’s exactly the kind of case where what the Court does in Loper Bright is going to possibly make a difference, at least to what we see below. I have a lot of caveats. See, I’m more of a lawyer than an economist, every everything is sort of “it depends.” But I’ll just tell you. This the fact that there have been different interpretations with Presidential administrations on the same issue, this is the kind of thing that folks worry about with Chevron, because that’s what it sort of allows by giving it flexibility. It’s neutral, which means that the Obama administration has flexibility, as does the Trump administration as does the Biden administration. You can get these interpretations that vary and are not stable over time. With Chevron, you would see the courts below largely deferring to whatever the agency at the time is saying.
Caroline Cecot:
If Chevron remains in place, if it’s fortified, and there’s more work at step two, then maybe we see the courts kind of proposing or finding less ambiguity, or something along those lines.
Caroline Cecot:
But without Chevron, then you might see very different interpretations. But here’s the thing, once it gets to the Supreme Court this challenge and any challenge, nothing’s going to change, whether Loper Bright overrules Chevron or not.
Caroline Cecot:
And the reason for this is that the Supreme Court has not even said the word Chevron in many, many years, to many, a surprise.
Caroline Cecot:
In other words, whenever a case that below was a Chevron case and the Court of Appeals maybe deferred, maybe they didn’t. Once it has gone to the Supreme Court, and this is since don’t quote me on the year, but since, like 2016, let’s say, when it’s gone into the Supreme Court, the Supreme Court always found the statute to be clear and have some best interpretation, and then the agency either had it or didn’t. The Supreme Court has resolved these ambiguities. If it gets the Supreme Court no difference, they were not going to cite Chevron anyway, and they’re going to make a call.
Caroline Cecot:
The real effect of overruling or not Chevron and whatever comes out in Loper Bright is going to be at the District Court level, the Court of Appeals level, and the recognition that most cases the Supreme Court just takes cert on like 80 cases each year, and that they do not resolve all disputes. There are periods of just percolating unclarity in the law until the court takes on a case and essentially resolves it.
Caroline Cecot:
Everyone’s speechless. Sorry! That was a curveball.
Tom Lenard:
You may have addressed this question before, but I’m not sure I understood it completely. If they overrule Chevron, will they leave some sort of Chevron-like deference for minor questions?
Caroline Cecot:
That’s a really great question about what happens if Chevron is overruled. In administrative law practice, if something doesn’t qualify for Chevron deference, there is another doctrine. It’s called Skidmore.
Caroline Cecot:
Skidmore deference is not as robust as Chevron deference, but it basically says the court is going to still look at what the agency’s interpretation is. And it’s going to give it the weight it deserves, based on the thoroughness of the explanation, the quality of the reasoning. How long standing, so this might be a big difference, how long standing the interpretation is, right? That’s a big difference from Chevron, which really thrives in differing interpretations. But how long standing it is, etc. When I teach, when I teach Skidmore deference to my law students.
Caroline Cecot:
I sometimes will play a compilation that I’ve made of various Supreme Court justices commenting on Skidmore deference during oral arguments that usually gets laughs. Because, I think one of them was Justice Breyer like, “Skidmore deference? What about that? You give it, you give it what it’s got. You take it for what it is.” And then there’s a great one from Justice Kavanaugh, where he basically goes, “What is even Skidmore deference? It basically says, if it’s persuasive, then I will be persuaded.” Which is true of anything.
Scott Wallsten:
The “It is what it is” difference.
Caroline Cecot:
“It is what it is.” I mean, if you persuade me then I’m going to defer to you. But yeah, as a practical matter, there is a doctrine to fall back on. It gives more weight on the agency really exerting its expertise, and on longstanding interpretations.
Caroline Cecot:
It’s not that the agency will be ignored in any statutory interpretation case.
Caroline Cecot:
But again, that doctrine is a lot more difficult to predict. Chevron studies, empirical studies, have shown that when Chevron’s in play, courts of appeal are more likely to defer.
Caroline Cecot:
It ends up being, and this is work by Chris Walker and Kent Barnett in the Symposium that my article is a part of. They have an article about some of this work. They find that Chevron deference also means that whether the panel is mostly Republican appointed or mostly Democrat appointed makes less of a difference than it does when there is no Chevron in play. Chevron ends up kind of like a moderating effect. We’ll go with the agency which sometimes is expanding the definition, sometimes it’s contracting.
Scott Wallsten:
That relates to a question I was going to ask that people who want to restrict the ability of certain agencies to do things tend to want to get rid of Chevron deference.
Scott Wallsten:
But is it necessarily the case that that would be a deregulatory move generally? I mean, wouldn’t lobbying switch from the regulatory agency to Congress when they draft the law in the first place, and at any given point in time the Congress may be more pro-regulatory than the agency? It probably differs all the time.
Caroline Cecot:
Yes, I worry about this. I have a working paper I’m working on now. The title is provocatively called “Inefficiency Defaults.” But it’s this is part of the thing I’m concerned about, right? Especially because, when Congress has regulated really clearly, it hasn’t always, it you certainly would not say it’s always in a deregulatory fashion. If you push Congress to be very clear, oftentimes it’s very clear in ways that sound great to the public, like eliminate all additives that are known to cause cancer in animal or man by any study, cause no one wants to say that actually, well, maybe a little bit is okay. But it turns out that standard, the Delaney clause was very, it was almost impossible for the EPA to administer, because anytime you use a pesticide in order to not have a crop fail, there’s something residual on it, and there leads to issues. Then there are other kinds of chemicals that could be on things. The agency struggled to implement these kinds of things. Congress sometimes does explicitly say that the agency should use cost benefit analysis to look at incremental benefits and costs.
Caroline Cecot:
But it doesn’t always say that exactly in that way, or doesn’t want to find itself saying it in this way. Congress, the Clean Air Act, for example, has provisions that are very detailed, that speak about specific emissions triggers for regulation that are aggressive when you think about it in terms of some air pollutants.
Caroline Cecot:
You’re absolutely right.
Scott Wallsten:
I think we see it also right now in the various broadband subsidy programs, the BEAD program. Congress dictated all kinds of conditions, including, for example, “Buy America” and left it to the agency to try to undo it enough that the companies, the broadband providers could actually build something and get their equipment. It’s the agency that’s trying to undo some of the regulations that Congress put in.
Caroline Cecot:
Yes, this is a difficult yes. The fact that it’s become politicized, this movement to potentially get rid of Chevron has been associated with folks who consider themselves conservative is a little interesting in the sense that it’s not a move to have the agency necessarily do less unless you make additional assumptions. Which is the agency, is it the statute’s best interpretation will be anti the regulatory move, and not giving the agency actually more space to find something that’s more cost effective? And then it also requires Congress to come in, maybe with the hope that it won’t. But if it does come in with additional authorization, I am not sure that it will come in with a cost effective or evidence based approach. Necessarily, it could be actually a more top-down, command and control heavy, or very stringent approach if they’re forced to do it.
Sarah Oh Lam:
Yes, one last question back to the institutional capacity question. Do you think Congress has been about the same over the decades since Chevron or and the questions, or are they more technical now, like or less? Is Congress writing fewer big bills of legislation that are more general, or are they still able to get into the nitty gritty? What’s your view of Congress today?
Caroline Cecot:
I do my research in the environmental space.
Caroline Cecot:
And that’s definitely a space where we had an active congress in the seventies. Then we have some notable amendments to various statutes. But that’s not a space that Congress has really recently been able to kind of come together on regulations. Despite these issues being around for a while now, agencies struggling, EPA struggling to regulate greenhouse gas emissions under the Clean Air Act, and how difficult that has been for them. EPA is now thinking about how to regulate PFAS under various statutes. Do I think Congress is going to come together and write a statute that makes it easier for the agency in this climate? No.
Caroline Cecot:
Given that I work in that space, I don’t see Congress filling in the gaps. It sort of depends on what would happen when the agency is forced to work with what it has, and it’s interpreted very not flexibly and what that might mean for how the agency approaches these things that just keep coming up.
Sarah Oh Lam:
The Supreme Court has to have that in mind about how Congress is right now, and what the agencies have to think about.
Caroline Cecot:
But it’s clear when you read the opinions that different justices have different normative views about the desirability of anyone acting, Congress acting, or the agency. Justice Thomas had a dissent in one of the cases where he very explicitly says.
Caroline Cecot:
Yes, if we get rid of regulations we might get rid of some good ones. But I think we’re actually going to get rid of a lot of bad ones more often.
Caroline Cecot:
If we put it on Congress, then they might not do a lot of things that are good, but that’s also good in the sense that that’s constitutionally required. This was meant to be hard. We were meant to live in a world where we don’t have Congress being able to come together and act on many things because of these frictions. That’s kind of effects and then a normative view that this is desirable, right.
Sarah Oh Lam:
Great. Do you have any last thoughts about the future of admin law, and any other topics that I’m looking forward to your next article “Inefficiency Defaults”?
Caroline Cecot:
Thank you. Thank you.
Caroline Cecot:
I’ll say as someone who teaches administrative law, it’s been quite a dynamic journey. I first taught administrative law in spring 2018, and now it’s spring 2024. That’s a 6 year period, and every semester that I teach the course, I have to rethink my syllabus.
Caroline Cecot:
Long standing doctrines kind of questioned, how much weight to put on different issues, what might come up on the horizon. It’s been a very dynamic period in administrative law, for sure.
Tom Lenard:
Is the Supreme Court different because there was only one real kind of administrative law scholar, that’s Stephen Breyer, who was on it? I think now that he’s no longer on it, has that made a difference?
Caroline Cecot:
You’re right. Justice Breyer had taught, I think, administrative law before he was a justice. But I mean Justice Scalia wrote about administrative law, even when he was a judge on the DC Circuit.
Tom Lenard:
That’s true.
Caroline Cecot:
Justice Kagan to this day has one of the most influential articles, I would say, on administrative law.
Caroline Cecot:
And as a side note, Justice Gorsuch has clearly signaled that these issues are deeply important to him and issues that he’s been thinking about a lot. And I’ll say that Justice Kavanaugh had kind of a crash course in administrative law, regardless of what he might have felt about it when he was on the DC Circuit, just because so many of these cases come through the DC circuit. I don’t think we’re at a moment where the court is starved of folks.
Caroline Cecot:
We think about this, but I think it is a moment where people have sort of different views on how to think about the relationship. I always tell my students that administrative law is about agency power, and it’s about the relationship of agencies with courts, Congress and the President. I think we are at a space where that idea, agency power, and each of those relationships, the folks on the court have different views about that.
Sarah Oh Lam:
Great. Well, thank you so much for your time, Professor Cecot, and we hope to have you back again soon.
Tom Lenard:
This was great. Thanks.
Scott Wallsten:
It really is.
Caroline Cecot:
Thank you. Thank you for having me.
