The Recurring Question of Chevron Deference & Agency Jurisdiction:

Unless you're an avid follower of federal energy law, there's no reason you would have noticed the U.S. Court of Appeals for District of Columbia's recent decision in Connecticut Department of Public Utility Control v. Federal Energy Regulatory Commission. In this case, a panel held that the Federal Energy Regulatory Commission (FERC) has jurisdiction to review the installed capacity requirement set by a regional transmission organization that administers regional electricity transmission. Those not focused on energy regulation (myself included) might be tempted to ask, "Who cares?" But not so fast. CDPUC v. FERC raised an interesting an important administrative law question that has bedeviled and divided federal appellate courts for years: Whether courts should grant Chevron deference to agency statutory interpretations that implicate the an agency's regulatory jurisdiction.

In CDPUC v. FERC the D.C. Circuit answered this question in the affirmative. "We afford Chevron deference to the Commission's assertion of jurisdiction," the panel stated with no elaboration, citing to a 1994 D.C. Circuit decision and Chevron itself. What the panel failed to note, is that several other circuits disagree with this approach. Indeed, the D.C. Circuit itself has not always taken this view, and the U.S. Supreme Court has not addressed the question directly -- though Justices Scalia and Brennan debated the issue in Mississippi Power & Light Co. v. Mississippi ex rel. Moore.

The Second, Third, Fourth and Ninth Circuits have all held that Chevron deference should apply in the jurisdictional context. The Seventh and Federal Circuits have gone the other way. Just this past March, in Tafas v. Doll, the Federal Circuit reiterated its position that "an agency's determination of the scope of its own authority is not entitled to Chevron deference." Two weeks ago, the Federal Circuit agreed to rehear Tafas v. Doll en banc.

The D.C. Circuit, like the Eighth Circuit, has been less consistent on the subject. In Oklahoma Natural Gas Co. v. FERC -- the case relied upon in CPUC v. FERC -- the D.C. Circuit declared it would "review FERC's interpretation of its authority to exercise jurisdiction over transportation with the familiar Chevron framework in mind." Yet in some prior cases, the D.C. Circuit has expressly declined to defer to agency interpretations of statutory provisions defining the scope of an agency's jurisdiction. As the court explained in its 1987 decision in ACLU v. FCC:

it seems highly unlikely that a responsible Congress would implicitly delegate to an agency the power to define the scope of its own power. When an agency's assertion of power into new areas is under attack, therefore, courts should perform a close and searching analysis of congressional intent, remaining skeptical of the proposition that Congress did not speak to such a fundamental issue.
My own view is that the D.C. Circuit had it right in 1987 is wrong today. [This also, interestingly enough, places me on the side of Justice Brennan in Mississippi Power & Light.] As Nathan Sales and I argue in an article forthcoming in the University of Illinois Law Review, "The Rest Is Silence: Chevron Deference, Agency Jurisdiction and Statutory Silences," courts should not defer to an agency's statutory interpretations that implicates the existence or scope of an agency's jurisdiction. We argue that such deference is not required by existing precedent, is inconsistent with the Chevron doctrine as currently understood, and is also unwise. A draft and abstract are on SSRN here; the article will be published later this year.

I do not know whether CPUC v. FERC is a good vehicle for presenting this issue to the Supreme Court. Nor do I know how much the Federal Circuit will focus on this specific question when it rehears Tafas v. Doll. But I do know this is an important question of administrative law, and one the Supreme Court will, sooner or later, have to address.

For some prior posts on this subject, see here.

rosetta's stones:
You lawyers need to get in here and give poor Adler some love. Here he's passionate about this topic, rightly so as it's critical to how government operates, and nary a lawyer comment to be seen.
7.20.2009 7:35pm
Good catch. The lack of discussion is what baffles me. The D.C. Circuit is known for being quite thorough, and these are not novice judges.

Let's hope the limited discussion leads the D.C. Circuit to reevaluate this precedent. I'm with you that the Supreme Court likely wouldn't grant cert in this case, though they get a decent stream of cases presenting this question (at least one or two every couple of terms).
7.20.2009 7:53pm
Should courts defer to the FBI on the scope of the 4th Amendment?

If we agree that courts shouldn't defer to agencies regarding the scope of statutory limits on their jurisdiction, why should it make a difference whether the constraints on an agency's jurisdiction are constitutional or statutory?

The rationale for deference is that the agency has expertise on the subject. But jurisdiction represents a compromise between the agency and other interests. But the agency has no expertise at all in the competing interests and priorities that might constrain or limit their jurisdiction, let alone in how Congress chose to balance that jurisdiction.
7.20.2009 9:11pm
Sorry, regarding the scope of constitutional limits on their jurisdiction
7.20.2009 9:12pm
This isn't my area, but back when I looked at it in practice, the question that bugged me was: isn't every interpretation of the agency's organic statute a determination of the agency's jurisdiction? I.e., if X is within the statute, properly interpreted, then the agency has the power to decide it; if not, not. I don't understand when Chevron deference would ever apply if it doesn't apply to jurisdictional claims.
7.20.2009 9:47pm
Mark N. (www):
Bruce: While I agree there can be gray areas, I think a good proportion of agency decisions can be reasonably classified as non-jurisdictional. If, for example, all parties agree that the EPA has the authority to regulate a particular pollutant in a particular situation, but the disagreement is over whether statute requires the EPA to regulate it in a specific way (e.g. a plaintiff argues that the EPA is required to set a more stringent pollution standard), it's hard to see that as jurisdictional.
7.20.2009 10:37pm
GeoBarto (www):
I'm not a lawyer, and I don't know much more about Chevron deference than what I've read here. But with TARP and national health care proposals all over the news and the regulatory state ever growing, it looks to me like the administrative law cases will have a much greater effect on our daily lives in the next twenty years than Roe v. Wade. So I'll echo Rosetta's Stones: Where's the love for this post? And why have we spent the last week figuring out whether Sotomayor's a wise Latina when there are real questions to be asked about things like this?
7.20.2009 10:58pm
runape (mail):
Your article seems to miss a significant virtue of deferring to agency interpretations of their own jurisdiction: the benefits of (potential) interagency competition for jurisdictional space.
7.21.2009 7:39am
Soronel Haetir (mail):

Except most of the time it seems like both agencies win. And then they come up with conflicting rules on the same subject.

An example of that situation being EPA and Army Corp. of Engineers. And just because one of them wins one jurisdictional battle doesn't mean next it it won't go the other way. And thus people wanting to get anything done have to content with multiple overlapping agency regulation sets.

That doesn't seem like a good produced by the system.
7.21.2009 10:21am
rosetta's stones:
It's not, and interagency competition is hardly a benefit. Jurisdictional scope definition questions should not be answered by the agencies, and should be given over to legislation. There will inevitably be overlap between the Corps and the EPA for example, as mentioned, but the zone of overlap should be mapped out in at least general terms, and provide some measure of guidance to regulators.

However, in the CT case Adler mentions, I believe legislation, as the court interpreted it, covered the jurisdictional question, and it didn't seem really even a close call. That is a well written and understandable opinion. Nice to see a court going about its business without tripping over itself.

Not sure I agree with Adler here, that the variance in the various circuit courts will have to be resolved, as jurisdictional questions are inevitably a case by case issue. Technical issues given over to the agencies? Sure. But the agencies operate and are chartered by legislation, and are funded by legislation, and that should control them directionally.

It might be nice if the agencies themselves exercised some restraint where required, but that might be asking a bit too much. In this case, they appeared to do so, however.
7.21.2009 3:21pm

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