Federal Regulation - MQD and Chevron (Pt 1) Flashcards
1
Q
Chevron v. NRDC - Facts
A
- 1984
- CAA - non-attainment states -> permit program for modified or stationary sources -> statute doesn’t say whether the bubble theory is allowed, + legislative history is contradictory
- DC Circuit rules the reg is inconsistent w/ statutory purpose of reducing air pollution
2
Q
Chevron - Steps
A
- Step 1 - whether Congress has spoken to the q at issue
-> if intent clear, inquiry ends - court + agency need to give effect to unambiguously expressed intent of Congress - Step 2 - whether agency interpretation is based on a permissible construction of the statute
3
Q
Chevron - Rationale
A
- court reasons if Congress HASN’T spoken to the precise question at issue, it’s impliedly delegating authority to the agency
-> can purposely leave a gap for agencies to fill in - delegating power to the agency to elucidate specific provisions of the statute by regulation
-> creating space for the agency to make a choice within the options Congress provided - reject agency interpretations if arbitrary, capricious, or manifestly counter to the statute
4
Q
Chevron - Application to Bubble reg
A
- reasonable accommodation of manifestly competing interests -> entitled to deference
5
Q
Chevron - Convo Between Branches of Gov
A
- court giving itself the first say in whether or not Congress was specific/has answered the question
- BUT in step 2, if the statute can be interpreted as accommodating a range of policies, agency gets to decide what is best
-> ct will also let agencies change their mind
6
Q
Prof’s Q of What Chevron is Saying to Congress
A
- when you speak clearly, ct won’t let exec defy explicit direction
- BUT if choose to make space for agency OR duck answering the q for whatever reason, ct will read as creating space for agency (only thing that matters is whether Congress specifically answered the q
7
Q
Chevron - Court’s Convo With Itself
A
- not experts
- no constituency
- not politically accountable
- not really the best branch to decide between conflicting policies -> should respect policy determinations of elected branches
8
Q
Chevron and MQD - Practical Import
A
- when you’re trying to write a reg, you don’t have a lot of room left to maneuver - space for policy decisions constrained by combo of loss of Chevron AND MQD
9
Q
FDA v. Brown & Williamson Tobacco Corp. - Facts
A
- 2000
- FDA has power to regulate drugs (in this case, nicotine is seen as a drug, + cigarettes = the devices)
- there had been times when FDA administrators said they DIDN’T have authority to regulate nicotine
- Congress - wasn’t UNambiguous in saying FDA didn’t have this authority (enacted 6 statutes regarding tobacco, each time acting on premise that FDA lacked regulatory juris)
- 1996 - FDA asserted juris to regulate tobacco products, even though had expressly disavowed such power since its inception
- also relevant - FDA can only regulate to make products safe or take them off the market - neither really fit here
10
Q
FDA v. Brown & Williamson - Quote
A
“our inquiry into whether Congress has directly spoken to the precise question at issue is shaped, at least in some measure, by the nature of the question presented. Deference under Chevron to an agency’s construction of a statute that it administers is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps. In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.”
11
Q
Brown & Williamson - Chevron
A
- creates category of “extraordinary cases” w/ “reason to hesitate” before concluding Congress intended implicit delegation -> operates within the Chevron framework, not really Step 1 but not really Step 2
12
Q
Brown & Williamson - Application to Facts
A
- significant portion of econ
- unique political history
- authority asserted with great breath
- BUT still looking at Congress - history of Congress addressing this policy area w/o acknowledging FDA’s authority
- in this case, even if there’s ambiguity in the text itself, you look at all the above and bounce the analysis back to Chevron Step 1
13
Q
Brown & Williamson - Breyer Dissent
A
- majority saying the issue is very big + political, + therefore shouldn’t defer, vs. Breyer argues it’s SO big + political that there’s no way FDA’s assertion of authority wouldn’t escape political accountability -> judiciary shouldn’t take power for itself
- sees Pres as accountable to voters for agency action
- flipping majority’s reasoning on its head - BECAUSE it’s so big, you can be sure the public will notice + hold President accountable
14
Q
Prof’s View on Brown & Williamson
A
- ct still of the view that the agency = the experts -> no suggestion of overturning Chevron, just saying there are some extraordinary circumstances
-> if really big deal, is there anything Congress has done beyond the statute that gives reason not to defer
15
Q
Evolution of Judicial Attitude Leading Up to West Virginia
A
- Chevron - very modest ct - the only thing we’re good at is figuring out whether Congress speaks clearly
- Brown - complicates picture a bit, but not too much -> adds factors to weigh in when Congress speaks clearly
-> court giving itself a little more space to figure out when Congress speaking clear (listen to what Congress said after passing statute, listen to what agency said re its own authority, + still only step in if it’s something super big) - SO, at this time, agencies largely figuring if you’ve got a gap, go ahead and regulate (policy judgments, don’t talk to lawyers much, just worry about Chevron Step 1)
