Advancing Auer in an Era of Retreat

31 Pages Posted: 9 Mar 2017 Last revised: 26 Jun 2023

Date Written: July 1, 2017

Abstract

At the dawn of the modern administrative state, the Supreme Court held, in Bowles v. Seminole Rock & Sand Company, that an agency’s interpretation of its own regulation is “of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” A half century later, the Court retained that approach in Auer v. Robbins. Although the Supreme Court created Seminole Rock/Auer deference more than seventy years ago, the Court has created exceptions to the doctrine over the years and several Supreme Court Justices have questioned or criticized the basic premise of the doctrine in recent years. Legislators and academics have also advocated for modification of Auer deference.

In an era when many are suggesting that Auer deference should be narrowed or eliminated, some Auer critics are concerned that federal courts may be expanding its reach and may be according that level of deference to agency interpretations of guidance that interprets regulations, as opposed to simply interpretations of regulations. Those critics refer to this as “second level” Auer deference. This concern was raised most recently in a petition for certiorari to the United States Supreme Court filed by the Pacific Legal Foundation (PLF) in Foster v. Vilsack. PLF argued that the United States Court of Appeals for the Eighth Circuit inappropriately accorded Auer deference to the Natural Resource Conservation Service’s interpretation of a guidance document interpreting a regulation when the court upheld the agency’s determination that the petitioners were converting wetlands to farmland in violation of the Food Security Act of 1985.

The Supreme Court ultimately denied the cert petition, so the Court did not provide any guidance regarding whether courts owe any deference, or how much deference courts owe, to agency interpretations of guidance that interprets regulations - the “second level” Auer deference issue. Although the Court did not provide guidance, it is clear that courts should accord agencies some deference when reviewing the agencies’ interpretations of guidance interpreting regulations and should not review the interpretations de novo.

While the deference courts accord a variety of agency decisions under Skidmore v. Swift would seem to be a minimal requirement, there are strong reasons to conclude that courts should accord Auer deference or whatever form of Auer deference survives judicial reform to agencies’ interpretations of guidance interpreting regulations just as they apply that deference to agencies’ interpretations of regulations. First, all of the reasons that courts and academics have identified as justifications for deferring to an agency’s interpretation of its regulation under Auer (expertise, the agency was the drafter, uniformity) apply equally to an agency’s interpretation of its own guidance interpreting a regulation. Second, the criticisms that have been raised to applying Auer deference to an agency’s interpretation of its own regulation (Auer encourages agencies to draft vague rules) do not apply as forcefully to applying Auer deference to an agency’s interpretation of its own guidance interpreting a regulation. Finally, the negative repercussions that would flow from eliminating Auer deference for an agency’s interpretations of its regulations will flow equally from refusing to accord Auer deference to an agency’s interpretations of its guidance interpreting its regulations.

This article examines the appropriate level of deference that courts should accord to agency interpretations of guidance interpreting regulations. Part I of this article begins by examining several cases cited by PLF in its cert petition to determine whether there is, as PLF asserts, a trend toward “second level Auer deference” in the federal courts. Part II of the article focuses on the traditional application of the Auer standard, exceptions to the standard, the rationales for the standard, criticisms raised to the application of the standard, and several suggestions advanced by academics to reform the standard. Part III then outlines the reasons why courts should accord Skidmore, Auer or a modified version of Auer deference when reviewing an agency’s interpretation of its own guidance interpreting regulations.

Suggested Citation

Johnson, Stephen Martin, Advancing Auer in an Era of Retreat (July 1, 2017). 41 WM. & MARY ENVT’L L. REV. 551 (2017), Available at SSRN: https://ssrn.com/abstract=2929678

Stephen Martin Johnson (Contact Author)

Mercer University Law School ( email )

1021 Georgia Avenue
Macon, GA 31207-0001
United States
(478) 301-2192 (Phone)
(478) 301-2101 (Fax)

HOME PAGE: http://www.envirolawteachers.com

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