Since President Obama announced his intention to nominate Elena Kagan for the U.S. Supreme Court much attention and speculation has centered around Kagan’s opinions on various issues, including her environmental record. Some have observed that we know “nothing” about her environmental preferences except a preference for executive power, and a notable role in creating the environmental law clinic at Harvard Law School. The clinic, a greening initiative at the school, and the hiring of professor Jody Freeman, a leading environmental law scholar, suggest that Kagan supports environmental protection and climate regulation as a general matter. But it is not quite accurate to say that Kagan, as has been suggested, “hasn’t written or said much at all about climate change or the government’s role in regulating clean air and water or protecting land and species,” because her writing on administrative law provides some clues as to how she would approach EPA’s actions.
In fact, Kagan has publicly taken a significant position on administrative law that, if implemented, could have important practical implications for environmental regulation.
In a lengthy and nuanced 2001 law review article co-authored with David J. Barron,[1] the authors argue for a new rule of law defining when courts should defer to decisions made by administrative agencies. Because much of environmental law is implemented through administrative agencies, Kagan’s view, if adopted by courts, could have far reaching implications.
Kagan’s argument seeks to limit the application of a powerful doctrine of federal administrative law known as “Chevron deference”[2] to only those administrative decisions where the specific decisionmaker appointed by Congress actually makes the decision – and not to the determinations of lower-level decisionmakers in the agency acting pursuant to delegated authority. Chevron is considered a rule of judicial restraint, whereby courts will not second-guess an agency’s reasonable interpretation of ambiguities in a statute it is charged with enforcing, absent convincing circumstances. Notably, it was Justice Stevens, who Kagan would replace on the bench, who authored the opinion in the Chevron case, which is the most cited in Supreme Court history.
The approach suggested in Kagan’s article would mean that generally only the head of an administrative agency, such as the administrator of EPA, would receive Chevron deference in court for their decisions.[3] Often in current practice Congress will direct an agency administrator to make a decision, and this official will in turn delegate authority to lower officials. Decisions made pursuant to delegated authority within the agency would not receive Chevron deference under Kagan’s proposed rule. Kagan’s approach builds on prior caselaw, including United States v. Mead Corp., 533 U.S. 218 (2001), but her primary focus on the identity of the decisionmaker is a significant departure from, and extension of, these prior cases.[4]
This change, if ultimately adopted by the Supreme Court, would be significant, because, as Kagan points out, “the vast majority of agency action [other than formal rulemaking, etc.] is issued under the name of these [lower-level] officials.”[5] Under Kagan’s approach, all of these decisions would be subject to potential second-guessing in court, under a less-deferential standard known as Skidmore deference.[6]
The possible effects of Kagan’s approach could be to:
- Strengthen the presumption that a head administrator’s decision, based on legitimate exercises of their authority, is sound;[7]
- Weaken the authority of lower agency officials, holding them to a higher standard; and
- Increase the administrative workload for higher-level decisionmakers in an agency.
Limiting the application of the Chevron deference doctrine could weaken the authority of most agency administrative personnel. Lower-level decisionmakers could not, under Kagan’s rule, seek to defend their decisions by arguing they are entitled to the special deference given to statutory interpretation, without prior action from a higher-level decisionmaker. This rule would also likely have the beneficial effect of reducing the potential for ad-hoc decisionmaking at lower levels within an agency, when clear interpretations have not been provided from higher officials.
However, if Kagan’s approach were adopted by the Supreme Court, agencies may respond by making all important statutory interpretation decisions through its administrator. Thus, a new regulatory dynamic could emerge whereby an agency, in an effort to secure judicial deference for its top priorities, routes these decisions through their primary decisionmaker for substantive review and adoption.[8]
While much has been said about the lack of a paper trail to discern the type of justice that Kagan would be, she plainly has taken a clear and firm position on a seminal administrative law principle, and suggests a potential to reexamine doctrines of judicial deference to regulation, including environmental regulation. Of course, her article was written from the perspective of a law professor, not a judge, so Kagan’s overall approach to respecting Supreme Court precedent would also play a prominent role in deciding whether she would press her suggested approach once she ascends to the bench.
[1] David J. Barron and Elena Kagan, Chevron’s Nondelegation Doctrine, The Supreme Court Review, Vol. 2001, at 201-265 (2001) (“Barron & Kagan”).
[2] Named after the Supreme Court case of Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984) (“Chevron“).
[3] Congress could name another agency official, but in practice generally agency heads, or the President, are named by statute as the relevant decisionmaker.
[4] According to Kagan, the court in Mead looked to how “general” and “formal” an administrative decision is to evaluate whether Chevron may apply. Barron & Kagan at 234. Kagan argues that “accountable and disciplined policymaking” may be better promoted by focusing on who makes the decision—i.e., the statutory delegee named by Congress—as opposed to how it is made. Id. at 204, 238.
[5] Barron & Kagan at 237.
[6] Barron & Kagan at 236.
[7] Barron & Kagan at 263 (“[a]n agency should not have to conform its decision making to some idealized notion of either general lawmaking or courtlike formality to receive deference”).
[8] Barron & Kagan at 262.
