Posted by Jonathan Adler:
Does It Matter EPA Staff Opposed Waiver Decision?
http://volokh.com/archives/archive_2007_12_23-2007_12_29.shtml#1198434909
Several news outlets [1]report that EPA career staff recommended that
Administrator Stephen Johnson approve California�s waiver request.
According to [2]these accounts, the �unanimous opinion� of EPA legal
and technical staff supported the waiver request. Does this matter?
Some bloggers [3]think so. I don�t. Agency expertise is important, but
it is not the end-all-be-all of agency decision-making, and it is no
substitute for politically accountable policy decisions by political
appointees.
If EPA staff argued that the unambiguous language of the Clean Air Act
obligated the EPA to grant California�s waiver request, I think they
were simply wrong on the merits, for the reasons I have outlined in
prior posts. I think there is some ambiguity in the relevant Clean Air
Act language, which gave the agency some wiggle room, but (if
anything) the language supports Johnson�s decision to deny the waiver.
In my view, neither Section 209 of the Act or the EPA's prior waiver
decisions dictated a different result.
If the EPA staff were arguing that, in their view, the agency should
grant the waiver either because (a) their preferred interpretation of
the relevant statutory language required granting the waiver, or (b)
they believed granting the waiver was better environmental policy,
then there was nothing improper with Johnson adopting a different
conclusion. Insofar as the Clean Air Act grants the EPA some
discretion in how to interpret the Act�s requirements or whether to
grant the waiver request, it vests the ultimate decision-making
authority in the hands of political appointees, like Johnson, not
career staff. In such circumstances, the policy views of EPA career
staff are only relevant to the extent an Administrator wishes to take
their counsel. If we disagree with the Administrator's conclusion, it
is because we prefer a different policy, not because the Administrator
failed to follow the lead of agency staff.
Community Rights Counsel�s [4]Tim Dowling suggests the opposition of
EPA career staff should influence judicial review of the case, and
lessen the degree of deference a reviewing court shows the EPA�s
decision. Dowling writes:
the whole concept of deference is rooted in the idea that courts
will defer to the technical expertise of the agency. Here, Johnson
reportedly made his decision in the face of a contrary, unanimous
recommendation by his technical and legal staff. So there�s a
genuine question whether the usual justifications for deference
obtain in this case.
I disagree. Under Chevron and its progeny, the legal argument for
deference is not agency expertise, but the delegation of policy-making
discretion to administrative agencies. This rationale should be
unaffected by the views of agency staff.
Under Chevron, where the relevant statutory language is clear, the
statute controls, period. Where a statute is ambiguous, however,
courts are to defer to the implementing agency�s any reasonable
interpretation offered by the implementing agency. While the existence
of agency expertise may be the reason Congress chose to delegate such
authority to administrative agencies, for purposes of judicial review,
what matters is whether there was a delegation of interpretive
authority to an administrative agency. And, as Chevron�s progeny make
quite explicit, where statutory language is ambiguous, courts are to
presume that Congress sought to delegate interpretive authority to the
relevant implementing agency.
One consequence of this rationale is that it is not particularly
relevant whether career agency staff believe that one interpretation
of ambiguous statutory language is preferable to another. So long as
the relevant statutory language is ambiguous, and both interpretations
are permissible constructions of the relevant language, the head of
the agency is free to prefer either interpretation, for whatever
reason, and Chevron deference is owed. Therefore, so long as the EPA�s
interpretation of the Clean Air Act was based upon a permissible
construction of Section 209 (the waiver provision), a reviewing court
should provide full Chevron deference to the EPA�s interpretation,
irrespective of the views offered by agency staff.
References
1. http://www.latimes.com/news/local/la-me-epa21dec21,0,2062514.story?page=1
2.
http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2007/12/21/MNOUU26JN.DTL
3. http://www.washingtonmonthly.com/archives/individual/2007_12/012759.php
4. http://warminglaw.typepad.com/my_weblog/2007/12/the-waiver-deni.html
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
