Energy and Environment Monitor

Bill Aimed at Eliminating “Chevron Deference” Passes Arizona Senate

April 12, 2018

By: Douglas J. Crouse

    Last week the Arizona State Senate passed a bill that would amend that state’s administrative procedure law to kill its version of the “Chevron” doctrine, which requires courts to defer to an agency’s reasonable interpretation of statutes within its purview.

    The doctrine originates from the landmark 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, which set forth the legal test regarding when courts should defer to an agency’s interpretation. Generally, such deference is owed when an agency “reasonably” interprets an ambiguous statute. While the Supreme Court has subsequently narrowed the scope of Chevron deference by limiting the doctrine to interpretations obtained through formal proceedings such as adjudications or notice-and-comment rulemaking (as opposed to opinion letters, guidance documents, or policy statements, etc.), the reasonableness standard remains a relatively low bar that gives agencies a clear advantage in litigation arising under administrative procedure laws.

    Critics of the Chevron doctrine, which include Justices Thomas and Gorsuch, often point out the advantages that agencies receive due to this deferential standard and argue that such deference deprives regulated entities of due process protections and otherwise creates balance of power concerns. While critics point to the leverage that the doctrine provides agencies, the regulated community has also benefited from the doctrine in defending collateral attacks on permitting decisions in citizen suits brought under various environmental laws. 

    The Arizona bill would be the first of its kind, though an amendment to the same effect is currently under consideration by the Florida Constitution Revision Commission. The Florida Commission has the authority to place such amendments on the November ballot if 22 of its 37 members approve.

     This article was authored by Douglas J. Crouse, Jackson Kelly PLLC.