Posted by Jonathan Adler:
The Recurring Question of *Chevron* Deference & Agency Jurisdiction:
http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248127466
Unless you�re an avid follower of federal energy law, there�s no
reason you would have noticed the U.S. Court of Appeals for District
of Columbia�s recent decision in [1]Connecticut Department of Public
Utility Control v. Federal Energy Regulatory Commission. In this case,
a panel held that the Federal Energy Regulatory Commission (FERC) has
jurisdiction to review the installed capacity requirement set by a
regional transmission organization that administers regional
electricity transmission. Those not focused on energy regulation
(myself included) might be tempted to ask, �Who cares?� But not so
fast. CDPUC v. FERC raised an interesting an important administrative
law question that has bedeviled and divided federal appellate courts
for years: Whether courts should grant Chevron deference to agency
statutory interpretations that implicate the an agency�s regulatory
jurisdiction.
In CDPUC v. FERC the D.C. Circuit answered this question in the
affirmative. �We afford Chevron deference to the Commission�s
assertion of jurisdiction,� the panel stated with no elaboration,
citing to a 1994 D.C. Circuit decision and Chevron itself. What the
panel failed to note, is that several other circuits disagree with
this approach. Indeed, the D.C. Circuit itself has not always taken
this view, and the U.S. Supreme Court has not addressed the question
directly � though Justices Scalia and Brennan debated the issue in
[2]Mississippi Power & Light Co. v. Mississippi ex rel. Moore.
The Second, Third, Fourth and Ninth Circuits have all held that
Chevron deference should apply in the jurisdictional context. The
Seventh and Federal Circuits have gone the other way. Just this past
March, in [3]Tafas v. Doll, the Federal Circuit reiterated its
position that �an agency's determination of the scope of its own
authority is not entitled to Chevron deference.� Two weeks ago, the
Federal Circuit [4]agreed to rehear Tafas v. Doll en banc.
The D.C. Circuit, like the Eighth Circuit, has been less consistent on
the subject. In Oklahoma Natural Gas Co. v. FERC -- the case relied
upon in CPUC v. FERC -- the D.C. Circuit declared it would �review
FERC's interpretation of its authority to exercise jurisdiction over
transportation with the familiar Chevron framework in mind.� Yet in
some prior cases, the D.C. Circuit has expressly declined to defer to
agency interpretations of statutory provisions defining the scope of
an agency�s jurisdiction. As the court explained in its 1987 decision
in ACLU v. FCC:
it seems highly unlikely that a responsible Congress would
implicitly delegate to an agency the power to define the scope of
its own power. When an agency's assertion of power into new areas
is under attack, therefore, courts should perform a close and
searching analysis of congressional intent, remaining skeptical of
the proposition that Congress did not speak to such a fundamental
issue.
My own view is that the D.C. Circuit had it right in 1987 is wrong
today. [This also, interestingly enough, places me on the side of
Justice Brennan in Mississippi Power & Light.] As Nathan Sales and I
argue in an article forthcoming in the University of Illinois Law
Review, [5]�The Rest Is Silence: Chevron Deference, Agency
Jurisdiction and Statutory Silences,� courts should not defer to an
agency�s statutory interpretations that implicates the existence or
scope of an agency�s jurisdiction. We argue that such deference is not
required by existing precedent, is inconsistent with the Chevron
doctrine as currently understood, and is also unwise. A draft and
abstract are on SSRN [6]here; the article will be published later this
year.
I do not know whether CPUC v. FERC is a good vehicle for presenting
this issue to the Supreme Court. Nor do I know how much the Federal
Circuit will focus on this specific question when it rehears Tafas v.
Doll. But I do know this is an important question of administrative
law, and one the Supreme Court will, sooner or later, have to address.
For some prior posts on this subject, see [7]here.
References
1.
http://pacer.cadc.uscourts.gov/docs/common/opinions/200906/07-1375-1186743.pdf
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=487&invol=354
3.
http://www.patentlyo.com/patent/2009/03/tafas-v-doll-some-rules-valid-others-invalid.html
4. http://www.cafc.uscourts.gov/opinions/08-1352o.pdf
5. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1213149
6. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1213149
7. http://volokh.com/posts/chain_1219370782.shtml
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