Late last month, I noted that the overturning of Chevron did not mean the end of judicial deference to agency expertise. Earlier this week, a decision by the D.C. Circuit Court of Appeals provided some confirmation that judicial deference to agency technical decisions is alive and well. In Huntsman Petrochemical v. EPA, the court rejected a challenge to EPA’s emissions limitation for ethylene oxide.
The unanimous decision was made by a panel including two members originally appointed to the federal bench by Ronald Reagan (though it is true that Judge Judith Rogers was nominated for judicial appointments by both Democratic and Republic presidents – something that we may never see again in my lifetime!).
The decision is a full-throated defense of deference to agency technical expertise. First, it’s worth noting that the decision doesn’t even mention Loper-Bright. Instead, consistent with Chief Justice Roberts’ majority opinion in Loper-Bright, the Court simply cited to the Administrative Procedure Act, noting that agency action must be shown to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” in order to be invalidated.
Moreover, the Court emphasized that deference is greatest in core technical areas at the heart of an agency’s mission:
In the case of EPA’s evaluation of scientific data within its area of expertise, we accord an “extreme degree of deference.” This is particularly true for statistical and modeling analysis. See Appalachian Power Co. v. EPA, (identifying statistics as “the prime example of those areas of technical wilderness into which judicial expeditions are best limited to ascertaining the lay of the land”).
Following its own advice, the Court’s opinion repeatedly limited its expedition into the technical wilderness. For now, at least, there some evidence that courts will limit
Loper-Bright to agency interpretations of ambiguous statutory provisions, and continue to defer to agency technical decisions, particularly in areas where agencies have significant expertise.
Chevron is dead; long live the APA!
