Not so hard cases can also make bad law -- Deference to Agencies takes a hit in the Texas Waters of the United States Case

Sam Hess of Inside EPA points out that Judge Brown of Texas concluded that the United States Supreme Court's nearly forty year old precedent compelling the Judiciary to defer to Executive Branch interpretations of laws it is charged with enforcing does not apply to EPA's most recent attempt to determine the jurisdictional reach of the Clean Water Act. The precedent is Chevron v. NRDC and for decades it meant (to simplify things more than a little bit) that if Congress left something for an agency to interpret then courts must defer to the agency's reasonable interpretation.

Judge Brown says that in the Fifth Circuit Chevron doesn't apply to a case involving the Clean Water Act, including because one can be criminally liable for violating the Act so the rule of lenity, a "time-honored interpretive guideline", requires courts to resolve ambiguities in a statute in favor of a party that may face criminal penalties. Judge Brown also quotes the Fifth Circuit Court of Appeals for the proposition that "Chevron has become something of the-precedent-who-must-not-be-named" but that it "remains relevant" until it is overruled.

Now the Supreme Court may ultimately agree that the rule of lenity trumps Chevron deference in Clean Water Act cases, or that Chevron should be overruled (the current Court has certainly exhibited its comfort overruling longstanding precedent) but Judge Brown may have noticed that the nation's highest court has repeatedly applied Chevron in its Clean Water Act opinions which is something Judge Brown doesn't mention.

In Rapanos v. United States, which Judge Brown spends pages dissecting, Justice Scalia, announcing the judgment of the Court, applies the very same two part Chevron test which Judge Brown says doesn't apply in concluding that the Army Corps of Engineers' interpretation of the very same Clean Water Act was not based on a permissible construction of the statute and therefore not entitled to deference. The nation's highest court also applied Chevron in its most recent bite at the Waters of the United States apple in Maui v. EPA. It remains to be seen what the Supreme Court does with Chevron in its pending opinion in Sackett v. EPA.

Given all of this, why didn't Judge Brown just apply Chevron to EPA's most recent Waters of the United States rule? He could have easily concluded that the Clean Water Act doesn't clearly express Congress's jurisdictional intention and then turned to whether EPA's most recent interpretation of the statute is a permissible construction of the Act.  That's what much of his opinion is about anyway. Judge Brown gives two other reasons, other than the rule of lenity, why he has concluded that Chevron was inapplicable. But, because the United States Supreme Court has repeatedly said Chevron "remains relevant" to the consideration of EPA regulations interpreting the Clean Water Act, the Judge should have applied Chevron unless and until the Supreme Court changes its mind, whatever he thinks the Fifth Circuit Court of Appeals might say.   It will be interesting to see if the the Kentucky and North Dakota Federal District Court Judges with nearly identical cases before them follow suit as the longest running controversy in environmental law continues.