IN THE GOVERNMENT WE TRUST?

It does not take a lawyer to see that the administrative state is a pervasive presence in our lives.  The alphabet soup of federal and state agencies and departments regulate nearly every aspect of economic life and much beyond.  It does not help that the courts, in a series of opinions dating back several decades, have deferred more and more willingly to administrative agencies’ say-so.

It started by giving deference to an agency’s interpretation of the law it is charged with regulating.  For example, if the EPA takes a position in court, or issues a regulation interpreting, say, the Clean Water Act, the court will go along with it so long as it is a reasonable interpretation.  The logic of it all is that the agency, being charged by Congress with implementing the Clean Water Act, should be deferred to, and that it will also have acquired expertise further deserving of such deference.

But the courts kept going.  It went on to defer to a position taken in court by an agency in interpreting its own regulations – even when the agency itself is a party to the dispute.  So courts now respect not only a reasonable regulation of the statute but also the agency’s position as to what its own regulation means.  It starts to sound a lot like humpty dumpty: when an agency uses a word, it means just what it chooses it to mean—neither more nor less.

Take a recent case involving stormwaters.  The Clean Water Act tasks the EPA with regulating stormwater but only if the stormwater discharge is associated with industrial activity.  The EPA went on to define, by regulation, what constituted “industrial activity.” When the question arose as to whether a permit was necessary to channel stormwater off logging roads, the Court deferred to the EPA’s position that its own words meant what it chose it to mean – it that case, that its regulation at the time did not require obtaining a permit for logging-road runoff.  (It since amended its regulations, which again will be deferred to mean what the agency will later say it means.) The Court did not more than satisfy itself that the EPA position was a “reasonable” interpretation.

Maybe the only good news for independent judicial review came from concurrences by several justices.  It seems the highest court may be ready to take a fresh look at its deference to administrative agencies if the right case comes along.  Whether it does or does not, litigating against government agencies will continue to require particular care by the parties and their attorneys.