The Supreme Court (Perez v. Mortgage Bankers Assn) unanimously struck down the Paralyzed Veterans line of cases that had held that when a federal agency changes an interpretative rule, it must go through a notice and comment process. The Court held that interpretative rules categorically do not need to go through the Administrative Procedures Act's notice and comment rulemaking process.
The net result of this ruling is that Agency interpretations may readily be changed and no longer need to show any semblance of consistency between (or even within) political administrations.
While this case did not upset existing jurisprudence concerning Chevron deference (i.e. Agencies get deference for interpreting ambiguous statutes), several conservative justices (Alito, Scalia, and Thomas) also served notice that in the future they will likely seek to strike down a line of cases which give federal agencies deference over interpretations of ambiguous regulations.
Dicta in the decision noted that many statutes contain safe harbor decisions that protect against reliance on an agency decision which the agency then changes (slip at 13). In the environmental arena, these safe harbor provisions manifest as protections against enforcement actions when a permitee fully complies with the terms of a permit (i.e. "permit as a shield"), but runs afoul of a newer agency statutory interpretation, or discharges pollutants seemingly beyond the scope of the permit. The Supreme Court is being presented with an opportunity to put a finer point on this in Aurora Energy Services v. Alaska Action on Torts (petition for cert), where they are being asked to decide whether a Clean Water Act discharge permit covers unlisted pollutants even though the permit explicitly excludes unlisted pollutants.
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While this case did not upset existing jurisprudence concerning Chevron deference (i.e. Agencies get deference for interpreting ambiguous statutes), several conservative justices (Alito, Scalia, and Thomas) also served notice that in the future they will likely seek to strike down a line of cases which give federal agencies deference over interpretations of ambiguous regulations.
Dicta in the decision noted that many statutes contain safe harbor decisions that protect against reliance on an agency decision which the agency then changes (slip at 13). In the environmental arena, these safe harbor provisions manifest as protections against enforcement actions when a permitee fully complies with the terms of a permit (i.e. "permit as a shield"), but runs afoul of a newer agency statutory interpretation, or discharges pollutants seemingly beyond the scope of the permit. The Supreme Court is being presented with an opportunity to put a finer point on this in Aurora Energy Services v. Alaska Action on Torts (petition for cert), where they are being asked to decide whether a Clean Water Act discharge permit covers unlisted pollutants even though the permit explicitly excludes unlisted pollutants.
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