Document Type

Article

Publication Date

2018

Abstract

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. is the most frequently cited Supreme Court administrative law decision and has generated substantial scholarship over the past thirty-four ears. Almost three decades ago, Robert Glicksman and Christopher Schroeder examined the nature of judicial review of the actions of the Environmental Protection Agency ("EPA") by the federal courts during the agency's first twenty years of existence, focusing, in part, on the changing nature of that review in light of the Chevron decision. Glicksman and Schroeder concluded that the courts aggressively reviewed EPA's actions during the agency's early years, interpreting the environmental statutes according to their broad purposes and declining to accord deference to the agency. By the end of the study period, though, they concluded that courts adopted a more deferential view toward EPA's decision-making and focused less on the purposes of the statutes in their review of the agency's decisions. Glicksman and Schroeder suggested that the change was motivated by many factors, including a change in the judicial attitude towards agencies after Chevron. ...

This Article updates the Schroeder and Glicksman study by analyzing all the federal circuit court decisions between 2000 and 2016 involving Chevron challenges to EPA decisions. It looks to determine whether the nature of judicial review in those cases is changing as legislative, judicial, and academic hostility or skepticism towards Chevron has grown, and whether courts are relying less frequently on legislative history or statutory purpose in interpreting statutes in those cases.

The Article also focuses on an issue that has not been addressed by many of the other empirical studies of Chevron decision-making. Wendy Wagner has frequently suggested that regulated entities have superior opportunities to participate in agency decision-making processes and to influence the outcome of that process. Decisions based on such unequal participation, though, may be legally suspect when challenged. In a recent article that examined a small set of Clean Air Act rulemakings, she noted that public interest groups brought most of the challenges to those rules and were successful in all of the lawsuits except one. Inspired by her findings on a small scale, this Article explores which groups ( environmental groups, regulated entities, or states) challenged EPA decisions most frequently during the study period and which groups were most successful in their challenges.

Unlike many of the other empirical Chevron studies, this Article does not focus on whether ideology impacts judicial decision-making in Chevron cases or whether courts are ignoring Chevron in cases where it should apply. ...

A review of the 2000-2016 Chevron decisions also indicates that courts are relying heavily on textualism and less frequently on legislative history and statutory purposes when reviewing EPA's decisions. The decline is not large when compared to the findings of Schroeder and Glicksman or Czarnezki. It appears, though, that during the study period, courts cited legislative history or purpose in an opinion more frequently when the courts were upholding the challenges of environmental groups or rejecting the challenges of regulated entities. Glicksman and Schroeder discussed the proclivity of courts to read statutes broadly to achieve their environmental purposes during the early years of EPA, but few studies have revisited that issue.

Finally, an analysis of the 2000-2016 Chevron decisions provides some interesting data regarding the success rate of various types of challengers to EPA actions. During the study period, 51.4 7% of the challenges were brought by environmental or public interest groups, 42.94% were brought by regulated entities, and 17.65% were brought by states or local governments. While courts affirmed EPA's actions at a 70.9% rate throughout the study period, EPA was most successful when defending challenges brought by regulated entities, as courts affirmed EP A's actions at a 82.9% rate in those challenges. When EP A's actions were challenged by environmental or other public interest groups, the agency's rate for affirmance dropped to 62.9%. The group that was most successful when challenging EP A's actions during the study period, though, was states, as EPA prevailed in only 55% of the challenges brought against them by states.

These findings should prompt EPA to consider whether it is devoting sufficient attention to the purposes of the environmental statutes and to the issues raised by parties other than regulated entities during the agency decision-making process. EPA's decisions seem to be particularly prone to invalidation under Chevron when the agency ignores those issues and statutory purposes. A survey of regulators at seven federal agencies, conducted by Christopher Walker, indicates that agencies such as EPA might be influenced by such findings in their rule drafting. Walker's study found that 94% of the regulators surveyed were aware of Chevron and 90% of the regulators indicated that they "used" Chevron in drafting rules.

Part I of this Article begins with an outline of the Chevron analysis and the evolution of the analysis over time. Part II describes the Glicksman and Schroeder studies, as well as the other empirical Chevron studies referenced above. Finally, Part III explains the methodology for the empirical study that is the basis for this Article and sets forth the findings of that study.

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