March 01, 2017

Utah’s Repudiation of Chevron and Auer Deference

Jacob A. Santini

In recent years, the federal court’s judicial doctrines requiring deference to agency interpretations have come under increasing criticism. Indeed, the most recent issue of Natural Resources & Environment included an article discussing the potential future of Chevron deference. Thomas J. Grever, Chevron Deference: Ambiguous Future, or All Clear?, 31 Nat. Res. & Env’t, no. 3, Winter 2017 at 48. In his article, Mr. Grever discussed D.C. Circuit Judge Bret J. Kavanaugh’s take on what the future of Chevron deference should be. According to Judge Kavanaugh, Chevron—which to practitioners is a well-known two-step analysis from the Supreme Court’s decision in Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984), that asks first if the statute is ambiguous and, second, if ambiguous, directs the court to defer to an agency’s plausible interpretation—ought to largely be abandoned. Judge Kavanaugh maintains that statutory interpretation instead should be guided primarily by the principle that “judges should strive to find the best reading of the statute. They should not be diverted by an arbitrary initial inquiry into whether the statute can be characterized as clear or ambiguous.” Bret J. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2144 (2016). In that article, Judge Kavanaugh went on to state that “[f]irst, courts could determine the best reading of the text of the statute by interpreting the words of the statute, taking account of the context of the whole statute, and apply any other appropriate semantic cannons of construction. Second, once judges have arrived at the best reading of the text, they can apply—openly and honestly—any substantive cannons (such as plain statement rules or the absurdity doctrine) that may justify departure from the text.” Id.

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