December 10, 2018, revealed something about the Court: It will be conservative in some ways, but probably not on social issues.
Last week, the Supreme Court granted cert in another important administrative law case—yet again involving EPA; yet again arising over the agency’s riff on the Clean Air Act; yet again a Chevron case. After EME Homer City and Utility Air Regulatory Group (UARG) (yet again a petitioner in this case), it’s the third such case to be heard, decided, or granted in a single calendar year. Maybe it’s just the ebb and flow of cases, but a casual survey of the D.C. Circuit’s environmental docket and the EPA’s ambitious plans to rid the galaxy of any chemical whatever strongly suggests that cases of this sort will continue to loom large. You have to go back four decades, to the heady days of administrative law’s “transformation,” to see anything like it. Herewith a few speculative thoughts on the connection between the resurgence of AdLaw cases and what Thomas Merrill, in a recent and characteristically lucid article, has called the “boundary” problem in administrative law.
In a nutshell: Everyone this side of Justice Breyer thinks that courts have to play some meaningful role in keeping agencies’ authority within legal bounds. But how? The question has an institutional aspect and a related, doctrinal aspect.
Here’s the institutional angle.
At issue in UARG (the most important of these cases) was a grand EPA initiative to regulate greenhouse gas emissions from stationary sources. For that project, the EPA could not rely on the Clean Air Act. It had to rewrite it and, moreover, to reserve its ample discretion to rewrite the statute again at some future time. Huzzah: you can still find five (but only five) justices to say, no dice. “We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery,” Justice Scalia’s majority opinion declared.
Parse that much-quoted metaphor, though.
- Justice Scalia delicately neglects to mention that EPA was sent on that mission by . . . the Supreme Court, which held in Massachusetts v. EPA (2007) that greenhouse gases, contrary to the agency’s position at the time, were “pollutants.” There went the boundary. All we are talking about now is whether the West Bank ends somewhere short of the Mediterranean. That won’t be law; it’ll be a “peace process,” fought over every inch of territory.
- Maybe members of the judiciary won’t stand on the dock—they’ll be piloting. That is, the Supreme Court won’t control the destination, the cargo, the captain, or anything else. That’s not enforcing boundaries. It’s ensuring safe passage. (“Hey there, sail a little more slowly, and don’t dent the buoys.”) That’s the true and explicit holding of UARG.
- Who is the “we” of whom he speaks? A court. (The opinion is curiously silent about Congress as a relevant institutional actor.) But which court? The Supreme Court cannot conceivably keep the EPA within statutory bounds. The only court that has a remote shot at that is the D.C. Circuit, which will see the full range of significant agency actions. The Supreme Court’s function, in this overall picture, is to provide a sense of direction for the Circuit, by way of intermittent one-way signals.
Unfortunately, those signals have gone every which way. The D.C. Circuit initially rejected global warming regulation under the Clean Air Act (in a badly splintered decision); got whacked on all counts in Massachusetts v. EPA; interpreted that decision—plausibly, though not compellingly—as saying, “anything goes for global warming”; and got hammered again in UARG. The Circuit refused to cut the EPA much slack in EME Homer City—and got reversed. It deferred to the agency in the case granted yesterday. If it gets reversed yet again, the D.C. Circuit may join—or may come to suspect that it has joined—the Federal Circuit in illustrating the theoretical possibility and practical relevance of a negative standard of deference: if the decision below went for you, that cuts against you on review.
This connects (I think) with doctrine.
For reasons just sketched, there’s is a big premium on coherence in the Supreme Court’s signals. Given the shifting majorities on a closely divided Court, that’s a tall order. Tom Merrill’s deeper point is that even under more favorable circumstances, the Supreme Court’s Chevron framework would not easily permit a boundary-enforcing jurisprudence (and hence guidance). That framework makes no room for the contextual considerations—such as federalism canons or institutional and real-world consequences—that ought to play a role in any serious judicial effort to keep agencies within bounds. It’s all statutory interpretation: Chevron One, the statute is clear (except when it’s not); Chevron Two, it’s ambiguous, in which case just about anything goes (except when it doesn’t).
Stuck with that framework, the Court crams boundary-enforcing arguments into Step One (Brown & Williamson, if you must know) or Two (UARG): that, dear agency, goes too far. Congress didn’t give you authority over “major questions.” The Court has been maddeningly vague about whether it deems those cases applications of established canons or exceptions from those canons. It has been equally vague about whether it does or does not view the boundary issue as serious.
On the current Court, there are four votes for the proposition that the boundary problem is a 19th-century distraction, and that, barring an explicit, ironclad prohibition against some agency’s claimed authority, anything goes. (Go read the UARG dissent. Its recklessness will take your breath away.) There are four votes for enforcing boundaries, but they get entangled in Chevron metaphysics. And there is Justice Kennedy’s vote for dignity and other good things, which in these sorts of cases may cut against the government (as in Gonzales v. Oregon) or for it (as in Massachusetts v. EPA) but either way makes mincemeat of any known legal canon.
In their most recent foray into this field, City of Arlington v. FCC, the justices lamentably failed to get a grip on the boundary problem. Tom Merrill’s article contains constructive suggestions for sorting it out. Like all such suggestions, they would benefit from a clearer judicial awareness that we have an urgent problem here.