The Chevron Case is the New Green Deal's greatest weapon. 1 of 2: @RichardAEpstein

Feb 09, 01:56 AM

Photo: Thomas Moran (1837–1926) Blue pencil.svg wikidata:Q983441


English: Drawing, In the Desert, Arizona, 1878


English: Horizontal view of a man with staff in left middle center walking toward a deeply fissured range of hills.

Date 1878

Medium ? brush and brown ink, white gouache on paper

Dimensions 13.5 x 23.5 cm.


Cooper Hewitt, Smithsonian Design Museum Blue pencil.svg wikidata:Q1129820

Current location 

Drawings, Prints, and Graphic Design

Accession number 


Credit line Gift of Thomas Moran


Type: Drawing

Country: United States

Source/Photographer Catalog Photo


This is a faithful photographic reproduction of a two-dimensional, public domain wo

The Chevron Case is the New Green Deal's greatest weapon.  1 of 2: @RichardAEpstein

In Chevron, getting the right result in the particular case before the Court was far less important, as Professor Thomas Merrill of Columbia Law School has demonstrated, than adopting the highly deferential approach that allows but does not compel the broader reading of the statutory term “source”. In a rearguard defense of the Chevron regime, Professor Cass Sunstein of Harvard Law School has argued that the standard tools of statutory construction, which rely on a combination of text, structure and purpose, come up empty in Chevron. But it is clearly unwise to take the relativist view that statutory language in many cases is so porous that it is not possible to decide disputed questions as a matter of law unless there is complete confidence in the outcome.

To see why, note that matters of statutory construction arise in all sorts of cases in which no administrative agency plays any role. In those cases, a court has to rely on the usual mix of interpretive devices to reach the best conclusion it can. Deference invites intellectual laziness, allowing courts to find that a statutory term contains some ambiguity and then leave the entire matter in the lap of an agency. In Chevron itself that approach means that any future administration could adopt the artificially narrow interpretation of the CAA that equates a smokestack with a source—a big deal.

In this way, Chevron introduces two major inefficiencies into the system: First, the risk that an agency will, given the high level of judicial deference, flip from one interpretation of key terms necessarily increases systematic uncertainty. Thus under current versions of Chevron an agency need offer no explanation for making a seismic shift, including those which involve rejecting a judicial interpretation of the disputed term that has gone in the opposite direction. Second, the institutional stability that comes from binding judicial statutory interpretations is lost when that task is handed to politically motivated administrators in such hot button areas as environmental, health, labor, and securities law.

In one sense, this critique looks to be viewpoint-neutral, but there is a gathering recognition that broad administrative discretion tends to favor administrators that take an expansive view of their mandate. Thus today, Democrats are more sympathetic to Chevron than Republicans. A key example involves the Clean Water Act (CWA). The te...