Perhaps the hottest debate raging today in administrative law circles regards Article III court deference to federal agency interpretations of their own rules. Such deference is known as “Seminole Rock” or “Auer” deference (after Bowles v. Seminole Rock & Sand, Co., 325 U.S. 410 (1945) and Auer v. Robbins, 519 U.S. 452 (1997)).
In the smallest of nutshells, critics argue that Seminole Rock deference rests on shaky constitutional ground, because it allows administrative agencies both lawmaking (i.e., writing rules) and law exposition (i.e., interpreting rules) powers.* The other criticism is practical, and alleges that Seminole Rock deference incents arbitrary regulation. To be more precise, this second criticism suggests that agencies take advantage of Seminole Rock deference by writing vague implementing rules, and then issuing subsequent “interpretations” that impose policies outside the notice and comment requirements for administrative procedure.**
Seminole Rock/Auer deference is so hot right now because the Supreme Court is openly reconsidering it. Justice Scalia recently pilloried Seminole Rock/Auer, and, in the same decision, Chief Justice Roberts announced, “that there is some interest in reconsidering those cases.” Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326 (2013) at 1339
In this context, I would like for you, dear readers, to consider a recent EPA proposal to take over Regional Haze programs operated by Texas and Oklahoma, pursuant to the Clean Air Act. The rule is extraordinary for a number of reasons. For starters, it’s the latest from the most arbitrary regulatory regime at EPA during the Obama era—namely, the Regional Haze/§110(a)(2)(D)(i)(II) program. For another, it’s a massive power grab, one with big implications for other States. I will explain these and other flaws in subsequent posts; my purpose today is to draw your attention to page 74829 of the 79th Federal Register, in which EPA attempts to justify the rule’s long reach by notifying the public of the agency’s Seminole Rock/Auer rights! I’ve reposted the offending language after the break.
This is amazing. In a PROPOSED informal rulemaking, the agency is reminding everyone that it has great latitude to interpret ambiguities in its own rules. Of course, ironing out textual uncertainties can easily implicate policymaking, which is certainly the case here. EPA is expanding the scope of the Regional Haze and the agency is preemptively issuing a legal defense. Again, this is a PROPOSED legislative rule. There is something very unseemly about an agency emitting an unsolicited avowal of its Seminole Rock/Auer authority at any stage of the notice and comment process, and certainly at the proposal stage. For the agency to be so naked about the roots of its policy action is an ugly sight.
*The intellectual foundation of all Seminole Rock/Auer criticisms is John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996). That said, in a dissent in Thomas Jefferson v. Shalala, 512 U.S. 504 (1994), Justice Thomas presaged some of Manning’s arguments. (e.g., id at 519, “I would not permit the [agency] to transform by “interpretation” what self-evidently are mere generalized expressions of intent into substantive rules…”)
**This article notwithstanding, I’m not sold on Seminole Rock/Auer deference being a problem. There’s no empirical evidence in support of the practical criticisms. To that end, I reviewed all circuit court of appeals rulings in which Seminole Rock was cited (since 1994), and the results will soon appear on globalwarming.org.