Muddying the Chevron Waters: The D.C. Circuit Lacks Doctrinal Clarity in Waterkeeper Alliance v. EPA
Muddying the Chevron Waters: The D .C. Circuit Lacks Doctrinal Clarity in Waterkeeper Alliance v. EPA
Christopher Crocker 0 1 2
Resources Law Commons 0 1 2
0 Thi s Comments is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact
1 Christopher Crocker, Muddying the Chevron Waters: Th e D.C. Circuit Lacks Doctrinal Clarity in Waterkeeper Alliance v. EPA , 59 B.C.L. Rev. E. Supp. 314, 2018
2 Boston College Law School
Part of the Administrative Law Commons; Environmental Law Commons; and the Natural
1 See generally, e.g., King v. Burwell, 135 S. Ct. 2480 (2015) (discussing the IRSs’ final rule
regarding the Patient Protection and Affordable Care A)c;t Nat’l Cable & Telecomms. Ass’n v.
Brand X Internet Serv., 545 U.S. 967 (2005) (reviewing the FCC’s declaratory ruling regarding
cable companies providing internet access), Pauley v. Bethenergy Mines Inc., 501 U.S. 680 (1991)
(reviewing the Department of Labor’s regulation concerning the Black Lung Benefits Act); INS v.
Cardoza-Fonseca, 480 U.S. 421 (1987) (concerning the language of the Immigration and
Nationality Act); Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 842 (1984) c(oncerning
the EPA’s interpretation of an ambiguity in the Clean Air Act).
2 Chevron, 467 U.S. at 843.
3 See id. at 842–43 (establishing a procedure for judicial review of agency action that looks
first to congressionally-written statutory text, then to the reasonableness of agency interpretation
of that text).
through the text of the statute itself4. Next is the agency responsible for
miplementing that statute, which has the authority to act when Congress’s will is
not clear.5 Last are the courts, which under Chevron, are to defer to agency
interpretation, and are not to substitute their own “preferred” interpretation.6
This Comment focuses on one instance joufdicial review under the
Chevron deference standard before the U.S. Court of Appeals for the D.C.
Circuit in the case of Waterkeeper Alliance v. EPA.7 Part I of this Comment
discusses the current state ofChevron deference and introduces the facts of
Waterkeeper Alliance v. EPA.8 Part II analyzes the reasoning of the two
opinions of the D.C. Circuit in Waterkeeper Alliance.9 Finally, Part III argues that
although the D.C. Circuit reached the correct decision iWnaterkeeper
Alliance, it did so in a manner that only further confuseCshevron analysis and
represents a dangerous trend of the judiciary over-deferring to agencies.10
I. THE CURRENT STATE OF CHEVRON DEFERENCE AND
WATERKEEPER ALLIANCE V. EPA
Since 1984 the standard of review for courts reviewing federal agency
decision-making has been that laid out inChevron, U.S.A., Inc. v. National
Resources Defense Council, Inc11. What became known after the case as
Chevron deference requires judicial deference to agency interpretations of
federal statutes, provided that those statutes are ambiguous and the agency’s
interpretation is reasonable.12 If both conditions are met, the court must defer
to the agency’s interpretationof the statute, regardless of whether the court
agrees with the agency’s interpretation or believes that the interpretation is the
best one possible1.3 Part A of this section briefly outlines the meaning of
Chevron deference and the current debate over what the test entails1.4 Part B
of this section discusses the facts and procedural posture ofWaterkeeper
Alliance v. EPA.15
A. The Meaning of Chevron’s Two Steps
In Chevron, Justice John Paul Stevens established a tw-qouestion
process for reviewing a federal agency’s interpretation of a statut1e6. The first
question analyzes the text of the statute in question, seeking to determine
whether it unambiguously expresses the intent of Congre17ssI.f the court
finds no ambiguity in the text, then thCehevron inquiry is over,
andCongress’s interpretation stands.18 If, however, the court does find ambiguity,
then the agency’s interpretation will survive, as long as it is a reasonablen-i
terpretation of that ambiguity1.9 The consensus is that the ste-ptwo
reasonableness inquiry is equivalent to arbitrary and capricious review.20
These two questions are the two “steps” ofChevron: the statute is
interpreted, de novo, by the reviewing court to determine if there is any ambiguity,
and if there is, then the agency’s proffered interpretation controls as long as
that interpretation is reasonable2.1 Justice Stevens’s opinion makes it clear
that the steps are intended to be sequential, because tihfe court determines
that the statute is unambiguous, then “that is the end of the matter.2”2 If there
is no ambiguity to be found in thestatute, then there is no room for the
agency to exercise its interpretive authority.23
15 See infra notes 48–60 and accompanying text.
16 Chevron, 467 U.S. at 842–43.
17 Id. (“First, always, is the question whether Congress has directly spoken to the precise
question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously expressed intent of Congress.”)
19 Id. (“[I]f the statute is silent or ambiguous with respect to the specific issue, the question
for the court is whether the agenc’ys answer is based on a permissible construction of the ts-ta
20 See, e.g., STEPHEN G. BREYER ET AL., ADMINISTRATIVE LAW AND REGULATORY POLICY:
PROBLEMS, TEXT, AND CASES 359 (7th ed. 2011) (stating that the “weight of scholarly opinion”
equates step two ofChevron with arbitrary and capricious review);JERRY L. MASHAW ET AL.,
ADMINISTRATIVE LAW, THE AMERICAN PUBLIC LAW SYSTEM: CASES AND MATERIALS 1009
(7th ed. 2014) (noting that arbitrary and capricious review is the standard called for by the
Administrative Procedures Act). The Supreme Court has explained that a court can set aside an agency
action as arbitrary and capricious if the agency completely lacks a rational explanation for its
decision; for example, if the agency “offer[ed] an explanation for its decisionthat runs counter to
the evidence before [it]” or is “so implausible” that it cannot be explained by a “difference in
view.” Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983).
21 Chevron, 853 F.3d at 842–43.
23 See id. (“[T]he court, as well as the agency, must give effect to the unambiguousxly- e
pressed intent of Congress.”)
In the years sinceChevron was decided, however, this clear tw-sotep
process has been muddied to the point that some scholars claim that courts
now engage in only a single step review for reasonableness, removing the
first step from the analysis.24 The Supreme Court contributed to the confusion
in Entergy Corp. v. Riverkeeper, Inc., in which Justice Antonin Scalia, writing
for the majority, admitted to skipping step one ofChevron, arguing that step
one was not needed because the secon-sdtep reasonableness inquiry
necessarily covered whether Congress had spoken directly on the issue2.5 In INS v.
Cardoza-Fonseca, the Court invoked Chevron for the proposition that agency
interpretations are invalid if they contradict clear congressional intent, but did
so without delineating the two-step process.26 The majority admitted that the
statute included ambiguity, the resolution of which would warrant deference,
but that the agency’s interpretation was incorrect nonetheless.27 Justice Scalia
wrote a concurring opinion criticizing the majority for its misunderstanding
of the role of the courts instatutory interpretation and the meaning
Supporters of the argument that the twosteps are redundant claim that
step one is merely a species of step two: if Congress has spoken directly on
the issue, then any agency interpretation that contradicts Congress’s purpose
is necessarily unreasonable.29 At times, the courts are rather clear that they are
only engaging in a single-step inquiry.30 This is not always the case, however,
and this inconsistency has led to the murky state of the doctrine inherited by
the D.C. Circuit in Waterkeeper.31
The argument for a two-step test draws from the text of Chevron as
written by Justice Stevens, and emphasizes a clear sequential inqui3r2y.A strict
reading of Chevron step one places primary emphasis on statutory text,
looking only at the clarity of Congress’s instructions.33 Step one, as the
interpretation of statutory text, answers the question of law as to Congress’s intent3.4 If
ambiguity is found, then what is left is a question of implementation, which is
a policy area governed by the relevant agency, not congressiona-cllryeated
How thoroughly the court treats the step one question has significant
implications for future agency lawmaking in the area covered by the statute in
question.36 If the court determines that the statute means (or cannot mean) X,
then that decision precludes later agency interpretations that contradict X.37 A
decision that the statute may mean Y, but does not have to,however, does not
limit future agency interpretations3.8 In National Cable &
Telecommuniactions Assn. v. Brand X Internet Servic,etshe Supreme Court ruled that an
agency’s interpretation of an ambiguous statute takes precedence over a
court’s prior interpretation if the two conflict.39 Thus the courts must be clear
about what test they are purporting to use in order to be clear about what the
impact of their decision will be.40
The debate over Chevron, in addition to its practical significance within
administrative law, also implicates the fundamental nature of separation of
powers in the federal system of government.41 The power to make substantive
law in the federal sphere rests, originally, entirely with Congre4s2s.Agency
power derives from grants from Congress in two ways: through explicit
delegation in the text of statutes, and implied delegation via the agencies’ power
to resolve statutory ambiguities when implementing them.43 Chevron serves
to maintain the proper role of agency power, as directed by Congres—s to
allow control where Congress intended to control, and delegate where
itnitended to delegate.44 Maintaining this balance is necessary to maintain
poliitcal accountability (by vesting power in democraticaelllye-cted legislators)
while allowing for the smooth and effective operation of the federal govne-r
ment (by allowing expert administrators to fill in gaps in laws passed by
Congress).45 Chevron seeks to properly balance the roles of the three
branches of government in statutory interpretation4.6 This requires accommodating
Congress’s legislative and the executive’s quas-liegislative (via rulemaking)
powers with the role of the judiciary to “say what the law is.”47
B. Facts and Procedural History of Waterkeeper Alliance v. EPA
Waterkeeper Alliance v. EPA is a challenge brought by environmentalist
groups to a Final Rule passed by the Environmental Protection Agency that
exempts farms from certain reporting requirements under the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980(“CER40 See id.; see also supra notes 98–101 and accompanying text.
41 Scalia, supra note 21, at 514–15.
42 U.S. CONST. art. I, § 8.
43 Pauley, 501 U.S. at 696(stating that Congress delegates policymaking authority through
express delegation or the introduction of ambiguous text in the statute); Chevron, 467 U.S. at 843–
44 (“If Congress has explicitly left a gap for the agency to fill, there is an express delegation of
authority to the agency to elucidate a specific provision of the statute by regulation.”).
44 Pauley, 501 U.S. at 696(“Judicial deference to an agenc’ys interpretation of ambiguous
provisions of the statutes it is authorized to implement reflects a sensitivityto the proper roles of
the political and judicial branches.”); Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990)
(sttaing that courts must defer to agency authority when Congress has intended to delegate, bountly
when Congress has done so); Chevron, 467 U.S. at 866 (stating that judicial deference is required
to ensure that policy decisions are made by the branches that are democratically elected).
45 See Chevron, 467 U.S. at 865 (discussing the responsibility of courts to respect Congress’s
power to delegate policymaking authority to executive agencies); supra note 40.
46 Chevron, 467 U.S. at 866.
47 Id.; Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). This concern regarding the
judiciary minimizing its role to interpret the law is raised by Judge Browsn’concurrence in this
case, which she refers to as“judicial abdication.” Waterkeeper All., 853 F.3d at 539 (Brown, J,.
CLA”) and the Emergency Planning and Community Righ-to-Know Act of
1986 (“EPCRA”).48 CERCLA and EPCRA require entities to report releases
into the environment of substances determined to be hazardous and extremely
hazardous, respectively, in quantities over certain thresholds.49 The Final Rule
granted a limited exception to these general reporting requirements,
exemtping farms from reporting the release of ammonia and hydrogen sulfide from
animal waste into the air.50
The EPA justified the exemption on the grounds that such farm reports
were unlikely in most cases to result in government response or intervention,
while the costs of compliance were significant for both the farms and the
agency itself.51 The U.S. Court of Appeals for theD.C. Circuit, however,
accepted evidence, which was not refutedby the EPA, that a governmente-r
sponse was not wholly impossible.52 Commenters to the EPA’s Proposed Rule
raised concerns regarding the dangers of unusually concentrated releases that
48 42 U.S.C. §§ 9603, 11004 (2012); Waterkeeper All. v. EPA, 853 F.3d 527, 530(D.C. Cir.
2017); CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous
Substances from Animal Waste at Farms, 73 Fed. Reg. 76,948, 76,948 (Dec. 18, 2008) (codified
at 40 C.F.R. pt. 302, 355). CERCLA, also known as Superfund, was enacted in 1980 to remediate
sites contaminated with toxic wasSteu.perfund: CERCLA Overvie,wU.S. EPA, https://
www.epa.gov/superfund/superfund-cercla-overview [https://perma.cc/4GLT-6ECY]. EPCRA,
enacted in 1986 in response to a series of higphr-ofile chemical spills (including one inBhopal,
India), identifies locations of toxic chemicals and requires facilities to develop emergency disaster
plans. What Is EPCRA?, U.S. EPA, https://www.epa.gov/epcra/what-epcra [https://perma.cc/
AUD4-XN6C]. The Final Rule was established throughinformal legislative rulemaking, which is
done through a process called notice-and-comment. 5 U.S.C. § 553 (2012); PIERCE, supra note 34,
at 561–68 (explaining informal rule-making processes). In this process the agency submits a
porposed rule, which is open for the public and interested parties to comment o5n.U.S.C. § 533.
After the close of the comment period, the agency may revise the rule, and then promulgates it in
its final form. Id. The rule in Waterkeeper Alliance was first proposed on December 28, 2007, and
open for comments forninety days. CERCLA/EPCRA Administrative Reporting Exemption for
Air Releases of Hazardous Substances from Animal Waste at Farms, 73 Fed. Reg. at 76,951. The
final rule was published on December 18, 2008, to take effect on January 20, 2009.Id. at 76,949.
49 42 U.S.C. §§9603(a), 11004(a). These reports are sent to the National Response Center,
which then informs all necessary government agencies, including local officials. id.
50 Waterkeeper All., 853 F.3d at 530. There was a carve-out in the Final Rule thatdenied the
EPCRA exemption to large-scale meat-producing farms, also known as concentrated animal
feeding operations (“CAFOs”). Id. at 532. The National Pork Produce’rs Council entered the case to
challenge the CAFO carve-out, however, because the court vacated the Final Ruleand this
challenge was not considered. Id. at 538.
51 Id. at 532; see id. at 536–37. The EPA specifically determined that“in most cases” a
response would be impractical, though the court emphasized that the qualification therefore implied
that there are some situations that would call for a responseId.. at 536. The EPA estimated that
over ten years, the exemption would save over $60 million in compliance costs for farms, and $8
million in costs for federal agencies. Id. at 537.
52 Id. at 536. The court stated that potential responses within the EPA’s authority include both
removal and remedial actions. Id. at 537. These actions can take the form of instituting monitoring
requirements, requiring stricter safety measures for storage of hazardous materials, relocating
neighboring residents, and other protective measures.Id. The EPA, in defending the rule, argued
that these types of responses would “rarely” be used, but could not conclusively rule them out.Id.
occur as a result of manure storage53. This storage requires agitation of the
storage pit, which can result in significant, concentrated releases that have the
potential to endanger nearby humans and animals5.4 State and national
emergency response agencies also testified to the value of disclosure of potentially
harmful emissions, both for direct intervention and for evaluating emergency
calls and tips.55
The case was brought directly to the D.C. Circuiutnder a jurisdictional
provision in CERCLA that provides for direct review by the Court of
Appeals.56 The EPA argued that the plaintiffs lacked standing to challenge
CERCLA (and thus lacked a jurisdictional hook to be in the Court opf- A
peals).57 According to the EPA, the plaintiffs had not suffered sufficient
inujry, because CERCLA does notrequire public disclosure of the reportedn-i
formation.58 EPCRA’s reporting requirements, however, which do trigger
disclosure, are tied to those established in CERCL5A9 .Thus any reduction in
CERCLA requirements, like that established by the Final Rule, ressulitn a
reduction of disclosures under EPCRA,and therefore a reduction of publicly
II. THE D.C. CIRCUIT’S TWO OPINIONS IN WATERKEEPER ALLIANCE V. EPA
A. The Majority Opinion Rules That the EPA Lacked the
Authority to Pass the Final Rule
The D.C. Circuit determined that the EPA did not possess sufficient
uathority to grant the Final Rule exempting farms fromits reporting
require53 Id. at 536.
54 Id. at 536–67. The court noted that the exposures caused by pit agitation poses significant
risks, with fatalities reported. Id. Despite the risks, the EPA stated that such activities would
“rarely” require an agency response. Id. The court again seized on the term“rarely” as an implication
that there might be times that such a response is necessary. Id.
55 Id. An emergency planning commission illustrated the value of this knowledge in a
scenraio in which emergency responders receive a call in the dead of night reporting a foul odoIrd.. at
537. The information in the CERCLA/EPCRA reports would give the responders an idea of
possible causes of the odor, and possibly narrow an investigation when the agencies begin a search.Id.
at 537. Commenters to theProposed Rule also emphasized the need to keep local authoritiesn-i
formed of potentially dangerous situations. Id.
56 42 U.S.C. § 9613(a) (2012). EPCRA does not contain a similar provision. Waterkeeper All.,
853 F.3d at 532. The court can hear a consolidated challenge involving multiple statutes as long as
one of the statutes provides for direct reviewI.d. at 533; Shell Oil Co. v. FERC,47 F.3d 1186,
1195 (D.C. Cir. 1995).
57 Waterkeeper All., 853 F.3d at 533.
58 Id. The Supreme Court has ruled that plaintiffs sufferan informational injury sufficient to
grant standing when an agency action cuts them off from“information which must be publicly
disclosed pursuant to a statute.” FEC v. Akins, 524 U.S. 11, 21 (1998).
59 42 U.S.C. §§ 9603(a), 11004(a); Waterkeeper All., 853 F.3d at 534.
60 Waterkeeper All., 853 F.3d at 534.
ments under CERCLA and EPCRA.61 The court stated that the agency did not
point to specific statutory ambiguity, but rather pointed to “unrelated
exemptions” written into the statutes by Congress that it believde “collectively
create ambiguity.”62 The court stated that this was not a viable foundation for an
exercise of agency interpretation6.3 The court therefore ruled that the Final
Rule was not a valid exercise of agency authority, and vacated the rule.64
The court began its analysis using the formulation of Chevron laid out in
Entergy Corp., which interpreted Chevron to say that a “reasonable agency
interpretation prevails.”65 This formulation cut out Chevron step one because
there is no mention of ambiguity, and specificallyomitted the sequential
nature of the inquiry.66
The court nonetheless answered the ambiguity question, finding that the
EPA’s attempt to find implied ambiguity in the reporting requirements by
pointing to other exceptions was insufficient.67 The EPA argued that the
presence of other exceptions to the general reporting requirements creates ami-b
guity as to whether the EPAhad the authority to pass further exemptions.
The court noted that the presence of some exceptions written into the
statutory text did not necessarily bar all others, particularly in administrative
ncotexts where Congress often left issues up to agency discretion.69 In this case,
however, the court determined that Congress combined those limited
exemptions with an otherwise “sweeping reporting mandate” in CERCLA
EPCRA.70 This mandate constituted a “straightforward reoprting
ment” that allowed no room for the EPA to construe ambiguity to
createuathority to pass further exemptions.71
The EPA also pointed to its authority to establish certain administrative
aspects of the reporting requirements, including setting the minimum
reportable quantities and a general authority to pass any regulations necessary to
carry out the provisions of the statutes7.2 According to the court, these grants of
authority gave the EPA the ability to designate additional reportable
substances, but did not provide a basis for authority to exempt substances
alreadyerquired under the statute7.3 The EPA read into this grant of authority, along
with Congress’s prior authorized exemptions, caongressional intention to
maximize efficiency and limitthe burden on reporting entities and govne-r
ment agencies.74 The court granted that this may have been a motivation for
some of the exceptions, but absent specific language granting EPA the
authority to consider efficiency in its administration of the retpionrg statutes, the
EPA could not pass this exemption on the basis of efficiency analysi7s5. The
agency, the court stated, could not disregard Congress’s instructions just
because it determined a reporting requirement was “not worth the trouble.”76
The EPA also asserted itsde minimis power, which allows agencies to
disregard the literal terms of a statute if enforcing those terms would result in
“pointless expenditure,” which occurs if there is no regulatory benefit at all.77
71 Waterkeeper All., 852 F.3d at 535. Further, the statutes lack what the court calls“language
of delegation,” such as “as appropriate,” “under circumstances to be determined by the EPA,” and
the like. Id. Thus the court found no evidence to support the EPAs’ contention that Congress had
granted it authority to alter the generally broad reporting requirements. Id.
72 Id.; 42 U.S.C. §§ 9615, 11048.
73 Waterkeeper All., 853 F.3d at 535.
76 Id. Any further exceptions would contravene Congres’ss intent to require broad,
comperhensive reports of any releases of hazardous material, as made clear in the statutes. Id. This read of
a sweeping mandate is essential, and sets the case apart from Entergy Corp., in which the Supreme
Court allowed the EPA to engage in a cos-btenefit analysis under provisions of the Clean Water
Act because there was no such mandate. Entergy Corp. v. Riverkeeper, Inc5.5,6 U.S. 208, 222
(2009). Other provisions in the Clean Water Act allowed for cost considerations, and the specific
provision in question did not forbid it.Id. at 223. Under Chevron analysis then, at least after
Entergy Corp., agency action is generally allowable, unless it is expressly forbidden by Congress.Id.
at 222. This comports with the general spirit of deference to agency expertise that
animatesChevron. See id. at 223 (recognizing that Chevron acts to expand the scope of permissive agency
cation); Chevron, 467 U.S. at 854 (directing courts to defer to reasonable agency interpretations of
the statutes the agencies implement).
77 Waterkeeper All., 853 F.3d at 535; Ala. Power Co. v. Costle, 636 F.2d 323, 360 (D.C. Cir.
1979) (“Courts should be reluctant to apply the literal terms of a statute to mandate pointless
xependitures of effort.”). The court makes it clea,r however, that the de minimis exception is not a
balancing test, and so the power cannot be exercised if a regulatory benefit is found, regardless of
whether the agency believes that this benefit is outweighed by the costWs.aterkeeper All., 853
F.3d at 535; Ala. Power, 636 F.2d at 361 (stating that thede minimis exception is not available
Because the court found some valueto be gained from the reports, the court
held that the Final Rule exempting the farms from the standard reportinge-r
quirements was beyond the EPA’s authority to pass.78 Thus, because the court
found no statutory ambiguity to be interpreted and no basis foran exercise of
the de minimis exception, it concluded that the EPA did not have the authority
to pass the Final Rule.79
B. Judge Janice Brown’s Concurrence Criticizes the
Majority’s Chevron Analysis
Judge Brown’s concurrence began by recognizing that mthaejority
came to the correct conclusion in ruling that the EPA did not point to siu-ff
cient ambiguity to justify its exercise of authority8.0 The concurring opinion,
however, criticized the majority for its clumsy formulation of tChehevron
standard and its potential to confuse furtherChevron analysis.81 According to
Judge Brown, the issue with the majority’s use oEfntergy Corp.’s
formulation of Chevron is that Entergy Corp. was limited to the principle that an
agency’s unreasonable interpretation is outsideof any ambiguity.82 This, she
wrote, does not establish a rule for situations in which a court finds that the
agency’s interpretation is reasonable, but has not determined via Chevron step
one that there is statutory ambiguity to interpret.83
According to the concurrence, this case was easily disposed of via
Chevron step one.84 The EPA did not provide any statutory ambiguity that could
grant it power to act, and therefore therweas nothing left to analyze under
when the function provides some benefits, buwthen the agency determines those benefits are
outweighed by the costs).
78 Waterkeeper All., 853 F.3d at 537. The court accepted evidence from the public
commentary on the proposed rule that put forth possible uses for the informationS.ee supra notes 52–54
and accompanying text.
79 Waterkeeper All., 853 F.3d at 537–38.
80 Waterkeeper All. v. EPA, 853 F.3d 527, 538 (D.C. Cir. 2017) (Brown, J., concurring).
81 Id. The court uses the formulation fromEntergy Corp., which inverts the two-step analysis
by beginning with “a reasonable agency interpretation prevails”, unless Congress has spoken on
the issue, and the agency’s interpretation conflicts with Congress’s. Id.; Entergy Corp. v.
Riverkeeper, Inc., 556 U.S. 208, 218 (2009).
82 Waterkeeper All., 853 F.3d at 538 (Brown, J,. concurring). This formulation goes through
Chevron backwards, by first deciding if the interpretation is reasonable, before determining
whether the statute is ambiguous.See Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467
U.S. 842, 842–43 (1984) (establishing a two-step test, for ambiguity followed by reasonableness).
It does not alter the actual outcome of the test (because if the interpretation is unreasonable, it
would have failed Chevron step two anyway), but risks complicating future applicability. See infra
notes 101–105 and accompanying text (discussing the futurea-pplicability issues of a simple
83 Waterkeeper All., 853 F.3d at 538 (Brown, J., concurring).
Chevron.85 Judge Brown emphasized the importance of step one’s
gatekeeping function because of what sheviewed as a degradation of step two
anaylsis.86 If Chevron step two amounted to little more than a rubber stamp, step
one would take on a more important role in limiting the opportunities for
agencies to exercise unchecked authority8.7 Further, as Judge Brown wrote,
this step one analysis needed to remain wedded to statutory text.88 Departing
from the text moved further away from Congress’s instructions,
whichallowed more opportunity to give agencies authority that was never intended to
be given them.89
According to Judge Brown, a return to the proper form ofChevron
analysis is necessary because the combination of skipping the step one threshold
determination and the weakened step two reasonableness revierwesults in
very little teeth to the courts’ review of agency ac9t0ionIn. order for the
courts’ review to be more than a simple rubber stamp, trheeviewing court
would need to undertake substantive review, and the most effective way to do
so is to stay grounded in the statutory text vCiahevron step one.91 Finally,
Judge Brown notes that an appeal of the on-estep reasonableness standard is
that it does not require a court to make a final decision on whether the statute
is open to multiple meanings before considering the reasonableness of the
agency’s interpretation.92 This, however, would trivialize the importance of
statutory clarity and, therefore, the importance of Congress.93
III. THE D.C. CIRCUIT’S CHEVRON ANALYSIS IN WATERKEEPER LACKS
CLARITY AND DEPARTS FROM THE TWO STEP TEST
The U.S. Court of Appeals for the D.C. Circuit correctly ruled in
Waterkeeper Alliance v. EPA that the EPA did not have the authority to pass the
Final Rule.94 The EPA did not identify any specific statutory ambiguity that
would suffice to trigger Chevron deference, and its attempt to point to
unerlated provisions that combine to “collectively” raise ambiguitywas not a
sufficient basis either.95 Although the court came to the correct conclusion in the
case, and did decide the essential ambiguity question, it did so in an imprecise
manner that introduced further confusion into the Chevron analysis and
continued on a path towards collapsingChevron’s two-step inquiry into just a
one-step reasonableness analysis.96 The majority’s analysis did not proceed
through the sequential Chevron framework.97 This is evidenced by the court
spending significantly more time on the issue of “collective” ambiguity than
the argument deserves.98 If the Chevron analysis had been laid out in its
proper sequential form, it would have been readily evident that the notion of
“collective” ambiguity arising from unrelated statutory provisions provided no
basis for agency interprettaion that would warrant deference.99 The agency
could not point to any specific ambiguity within the text, and according to
Justice Stevens’s formulation in Chevron, that should have ended then-i
The problem with allowing Chevron to collapse, as the concurrence
recognized, is that a simple reasonableness inquiry allows courts to avoid
mkaing a determination on whether a statute contains ambiguity or is susceptible
to multiple meanings.101 Not only is this a departure from the judiciary’s duty
to “say what the law is,” italso has potential consequences for later actions
and proceedings that involve the statute, due to the Supreme Court’s decision
in Brand X.102 Brand X held that if a statute is found to be ambiguous, then an
agency’s interpretation can trump a court’s prior interpretation of that st-ta
ute.103 This means that the decision to find the statute ambiguous or nisot
what determines whether the court has the power to reject the agency’s
decision.104 If the statute is ambiguous, then the agency’s interpretation will stand,
unless it is found to be unreasonab10l5e.Thus courts should be clear on
102 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)(declaring that it is
“emphatically the province and duty of the judicial department to say what the law is”.)This judicial duty
to determine the meaning of the law has been re-affirmed since the decision in Marbury. See, e.g.,
Perez v. Mortg. Banker’s Ass’n., 135 S. Ct. 1199, 1222-23 (2015) (Scalia, J., concurring)
(invoking Marbury’s “say what the law is” language to question the validity ofSeminole Rock deference
to agency technical expertise). Congress explicitly granted this power to the judiciary via the
Administrative Procedure Act, which states that in the realm of administrative la“wth,e reviewing
court shall decide all relevant questions of la”wand “interpret . . . statutory provisions . . . .” 5
U.S.C. § 706 (2012). An abandonment of step one, which determines the delegation of authority
through statutory interpretation (and is therefore a question of law,)is inconsistent with this
mandate. See Waterkeeper All., 853 F.3d at 539 (Brown, J., concurring) (arguing that a Chevron
analysis that avoids making a step one determination departs from the courts’ duty to “say what the law
is”); Bamberger & Strauss, supra note 32, at 625 n.50 (arguing that step one is a question of law
because it determines the authority conferred to the agency by the statute). Though a court does
not necessarily have to establish exactly what statutory text means, it must determine whether that
statute is at least open to interpretation, and set the limits on the range of possible intereptartions
(in determining what would constitute an unreasonable interpretation).See Waterkeeper All., 853
F.3d at 538 (Brown, J., concurring) (arguing that step one is where courts set the “boundaries of
delegated authority,” which are the outer bounds within which the agency’s interpretations can
reasonably fall); supra notes 36–40 and accompanying text. Richard Pierce has argued
thatChevron is compatible with this duty because“say[ing] what the law i”s is satisfied by the step one
inquiry. PIERCE, supra note 34, at 163. Once the issue has been evaluated under step one, a
deicsion has been made on the statutes’ meaning (whether that meaning is clear, or some amount of
ambiguity is present). Bamberger & Strauss, supra note 32, at 624. Chevron step two is a strictly
policy question then, in which deference to agency discretion does not impose on the judicia’rsy
law-interpreting role. See Nat’l Cable and Telecomms. Ass’n v. Brand X Internet Serv.,545 U.S.
967, 986 (2005) (holding that upon finding a statute ambiguous at step one, courts are to defer to
agency interpretations as long as they are “reasonable policy choice[s]”)P; IERCE, supra note 34,
at 161–62 (stating that Chevron step two covers policy decisions delegated by Congress to the
agency interpreting the relevant statute); Bamberger & Strauss, supra note 32, at 624–25
(characterizing the two steps of Chevron as the dual roles of the judiciary, the first its
independentniterpretive role, and the second an oversight role).
103 Brand X, 545 U.S. at 982. Though this appears unusual, as if the agency is allowed to
“overrule” the court, it is simply the continued exercise oCfhevron deference, just applied to a
prior interpretation by a court, rather than one made in the moment.See Chevron, 467 U.S. at 844
(“[A] court may not substitute its own construction of a statutory provision for a reasonable
interpretation made by the administrator of an agenc”y). But see Gutierrez-Brizuela v. Lynch, 834
F.3d 1142, 1150 (10th Cir. 2016) (Gorsuch, ,J.dissenting) (arguing that aBrand X reversal of a
court’s interpretation amounts to“an unconstitutional revision of a judicial declaration of the law
by a political branch”).
104 Brand X, 545 U.S. at 982.
105 Id. Unlike a determination, like in Brand X, where the court finds the statute unambiguous,
and thus institutes its preferred meaning, if the court finds the agency’s interpretation
unreasonawhether they are rejecting an agency’s interpretation because the statute is
already unambiguous, or because the statute is ambiguous but the proffered
interpretation is unreasonable.106
The battle over when courts are obligated to grant deference to agency
interpretation of law continues on and figures to move to the forefront, as one
of the Chevron doctrine’s most prominent critics, Neil Gorsuch, has ascended
to the Supreme Court. In 2017, iWnaterkeeper Alliance v. EPA, the U.S.
Court of Appeals for the D.C. Circuit waded in again, correctldyetermining
that the EPA had exceeded its authority when it passed the Final Rule. In
doing so, however, the court moved further towards collapsing the
sttwepoChevron formula, thereby potentially eroding Congress’s control over agency
action, encompassing a large swath of American law. Future decisions should
follow the two-step process laid out in the original decision,ensuring that the
doctrine is only applied in cases where agencies were intended to have
authority to act from Congress. Doing so would also guarantee that all branches
of government maintain their proper roles, with the legislature making the
law, the judiciary interpreting it, and the executive carrying it out.
Preferred Cite: Christopher Crocker, Comment, Muddying the Chevron Waters: The D.C. Circuit
Lacks Doctrinal Clarity in Waterkeeper Alliance v. EPA, 59 B.C. L. REV. E. SUPP. 314 (2018), http://
ble, it can only vacate the rule, and return the matter to the agency for a new decisSioeen. id.
(reversing a vacatur by the Ninth Circuit of an FCC rule on reasonableness grounds).
106 See id. at 982 (discussing the effects of a court’s prior interpretation of a statute on
subesquent agency interpretation); see also United States v. Home Concrete & Supply LLC, 566 U.S.
478, 493 (2012) (Scalia, J., concurring) (discussing the effects of tBherand X decision and its
requirement that reviewing courts explicitly indicate whether they find the statute to be ambiguous
24 Matthew C. Stephenson & Adrian Vermeule , Chevron Has Only One Step , 95 VA. L. REV. 597 , 598 ( 2009 ).
25 556 U.S. 208 , 218 n. 4. What is surprising about Justice Scalia's position here is that it contradicts the reasoning laid out in his widely cited defense of Chevron, which was that any potential for over-deference could be curbed by a strong reading ofChevron step one . See Antonin Scalia , Judicial Deference to Administrative Interpretations of La w,1989 DUKE L. J. 511 , 521 (arguing that a “strict constructionist” approach to statutory interpretation results in fewer instances of ambiguity for agencies to interpret).Justice Scalia states that thejustification for Chevron deference comes from Congress's intent to delegate to executive agencies the power to resolve ambiguities in statutes . Id. at 516 . This places step one, which determines whether any ambiguity is pe-r sent, at the forefront.Id. In the article Justice Scalia argues that if courts tend to find that the meaning of statutes are apparent from the text (which, as a supporter of textualism, he often would), then there will be fewer opportunities for Chevron deference to rear its head . Id. at 521.
26 See 480 U.S. 421 , 447 - 48 ( 1987 ) (citing Chevron but failing to explicitly proceed through the two-step analysis).
27 Id. at 448. Notably, the court did not engage in a reasonableness analysis for the agenc'ys interpretation . Id.
28 Id. at 454 (Scalia, J., concurring) (criticizing the majority's formulation for over-stating the authority of the judiciary and describing it as an “evisceration” of Chevron) .
29 Stephenson & Vermeule, supra note 24, at 599.
30 See Entergy Corp ., 556 U.S. at 218 ( examining an agency interpretation for reasonableness without first determining whether the statute was ambiguous).
31 See Waterkeeper All ., 853 F. 3d at 534(applying Chevron without proceeding through a two-step analysis); see also Freeman v . Quicken Loans , 566 U.S. 624 , 631 ( 2012 ) (stating that the Court was not applyingChevron, despite determining that the statute unambiguously forecloses the agency's interpretation) .
32 Chevron, 467 U.S. at 842-43; see Kenneth A. Bamberger & Peter L. Strauss , Chevron's Two Steps , 95 VA. L. REV. 611 , 618 ( 2009 ) (arguing that courts that do not engage in explicit step one analysis are not clear as to what standard they are reviewing under, and thereby tend to overextend their role in the interpretive process ).
33 Chevron, 467 U.S. at 842-43.
34 RICHARD PIERCE, ADMINISTRATIVE LAW TREATISE 161-62 (5th ed. 2010 ) (explaining that once a court concludes atChevron step one that Congress did not resolve the issue in question, it is now an issue of policy, not law ).
35 Pauley v. Bethenergy Mines Inc., 501 U.S. 680 , 696 ( 1991 ) (stating that resolution of ambiguity is a question of policy, delegated to the agency by Congress );Chevron, 467 U.S. at 864- 66; see Health Ins. Ass'n of Am. v. Shalala , 23 F.3d 412 , 416 (D.C. Cir . 1994 ) (describing agency interpretation of ambiguity as a policy decision entitled to judicial deference).
36 Stephenson & Vermeule, supra note 24, at 600 ( arguing for a one-step approach and suggesting that a strict independent step one inquiry can result in less room for agency interpretation, because it invites the judiciary to make a point determination on the statute at the outse-tthereby fixing its interpretation, rather than simply setting the limits on a range of permissive interpar-et tions-which limits the number of opportunities for agencies to submit their own interpretation)
37 See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Serv .,545 U.S. 967 , 983 ( 2005 ); Bamberger & Strauss, supra note 32, at 616.
38 See Brand X , 545 U.S. at 983; Bamberger & Strauss, supra note 32, at 616.
39 Brand X , 545 U.S. at 982. This power is only available to the agency aCthevron step two . Id. at 982-83 . If the prior court interpretation ruled that the statute was unambiguous (a step one determination), then there is no room for the agency to exercise any authority . Id.
61 Waterkeeper All . v. EPA , 853 F.3d 527 , 537 -38 (D.C. Cir . 2017 ).
62 Id. at 534.
64 Id. at 537-38.
65 Id. (citing Entergy Corp . v. Riverkeeper, Inc., 556 U.S. 208 , 218 n. 4 ( 2009 )).
66 See supra notes 24-25 and accompanying text.
67 Waterkeeper All ., 853 F.3d at 534.
68 Id. The statues include exceptions for certain types of pollution (including automobile exhaust and certain nuclear material), cases that do not result in exposure to the public at large (such as exposures that are contained entirely within a workplace), and releases that are already reported under other federal statutes . Id.; 42 U.S.C. § 9601 ( 22 ) ( 2012 ).
69 Waterkeeper All ., 853 F.3d at 534. The court states that the presence of the exceptions, had they been on their own, may have been enough to read in authority for the EPA to grant further exceptions . Id . This is consistent with Chevron's general spirit of deference, particularly the theory of implied deference . See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Serv ., 545 U.S. 967 , 982 - 83 ( 2005 ) (holding that agency interpretations, when they satisfyChevron, can contradict judicial interpretations ); Chevron, U.S.A. , Inc. v. Nat'l Res. Def. Council , Inc., 467 U.S. 842 , 844 ( 1984 ) (instructing courts to defer to the reasonable policy decisions made by executive agencies).
70 Waterkeeper All ., 853 F.3d at 535. The language in CERCLA requires reporting o“fany” release over the minimum, andEPCRA's requirements refer directly to those required under CERCLA . 42 U.S.C. §§ 9603 ( a ), 11004 (a) ( 2012 ).
85 Id. Judge Brown rejected the EPA's suggestion that unrelated statutory text can be a sufifcient basis for a finding of ambiguity . Id.
86 Id. She cites authority claiming that step two has been reduced to arbitrary and capricious review that is not strictly governed by the statutory text (which is Congress's instructions) in question . Id. Arbitrary and capricious is the standard called for under thedmAinistrative Procedure Act, and so in itself should not be objectionable .See 5 U.S.C. § 706 ( 2012 ) (requiring courts that are reviewing agency actions to set aside those actions found to be arbitrary and capricious). Judge Brown is concerned, however, that this diluted standard (which looks at the reasonableness of the agency's decision only, and not at Congress's instructions), when combined with weakened step one analysis, would result in a toothless review and very few agency actions being overturned . See Waterkeeper All., 853 F.3d at 538-39 (Brown, J., concurring) ( arguing that the effect of weakened Chevron analysis is “judicial abdication” from its duty to interpret the law ).
87 Waterkeeper All ., 853 F. 3d at 538 (Brown , J., concurring).
88 Id. This, she wrote, is aparticularly critical because step-two reasonableness analysis has tended to have little basis in the actual statutory text . Id.
89 Id. This is important because at the most basic level, all agency authority to act comes from that granted by Congress . See id.; La . Pub. Serv. Com m'n v . FCC , 476 U.S. 355 , 374 ( 1986 ) (holding that “an agency literally has no power to act . . . unless and until Congress confers power on it”). The statutory text is the basis for the agency's authority to act, so it needs to be considered when courts review that agency action . See La Pub. Serv. Comm'n , 476 U.S. at 374.
90 Waterkeeper All ., 853 F. 3d at 539 (Brown , J., concurring).
94 853 F.3d 527 , 537 -38 (D.C. Cir . 2017 ). (holding that the EPA lacked the authority for the rule because the statutes the agency was interpreting were unambiguous).
95 Id. at 534.
96 See id . at 537- 38 . (applying the Chevron standard but without utilizing the twstoe-p framework).
97 Compare id . at 534-35 (reviewing the EPA's action for reasonableness without first establishing the existence of ambiguity in the controlling statute )w,ith Chevron, U.S.A. , Inc. v. Natl' Res. Def. Council , Inc., 467 U.S. 84 , 2842 - 43 ( 1984 ) (laying out the sequential wto-step framework).
98 See Waterkeeper All ., 853 F. 3d at 538 (Brown , J ,.concurring) (arguing that the theory of “collective ambiguity” as advanced by the EPA threatens the entire Chevron framework ).
99 See id . Step one, as discussed above, serves an important gatekeeping functionS . ee supra notes 84-93 and accompanying text. Once the court determined that there was no ambiguity in the statute to be interpreted, the Chevron analysis should be complete . See Waterkeeper All., 853 F.3d at 539 (Brown, J., concurring).
100 Chevron, 467 U.S. at 842-43 (“ If the intent of Congress is clear, that is the end of the matter . . . .”).
101 Waterkeeper All ., 853 F. 3d at 539 (Brown , J., concurring).