Current trends in judicial review of environmental agency action.

A Supreme Court Justice once began a lecture on administrative law with this apt observation: "Administrative law is not for sissies--so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture."(1)

I. INTRODUCTION

Today we address an issue---judicial review of administrative action--that, dull or not, continues to grab the attention of the courts and commentators. The debate, for reasons I shall discuss, is especially important to the environmental law practitioner, in whose field many battles over the appropriate scope of judicial review are being fought.

The broad topic on which I am to comment--Current Trends in Judicial Review--covers a multitude of issues, far more, I am afraid, than to which a forty-five minute lecture can do justice. I speak, of course, only for myself and not for my court. My focus today will be on trends in judicial review of environmental agency interpretations of law post-Chevron.(2) The cynic might deem this an impossible task at the outset: according to some legal scholars this area of jurisprudence is so confused that there exist no identifiable trends. I, for one, do not share that view. By analyzing a few carefully selected cases, I hope to illustrate, if nothing else, the key concepts that drive judicial review in this area today.

II. AVAILABILITY OF JUDICIAL REVIEW

While I will focus my remarks on trends in actual substantive judicial review, we should keep in mind that recent trends in the threshold matter of the availability of judicial review are all equally important.

We could examine at length, for example, recent trends in judicial interpretation of the statutory preclusion exemption of the Administrative Procedure Act (APA).(3) Or, we could examine standing, focusing on the Supreme Court's decision in Lujan v. Defenders of Wildlife,(4) or on recent trends in the interpretation of citizen suit provisions.(5) At yet another level, we could examine trends toward expansion of the APA exception to judicial review for agency action that is "committed to agency discretion by law."(6)

Rather than focus on the availability of judicial review, I would like to concentrate on recent trends in the actual substantive review of agency interpretations of environmental statutes.

A. Substantive Review of Environmental Agency Action

Our starting point is Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.(7) Chevron is regarded as "one of the most important administrative law decisions in recent memory,"(8) and "one of the very few defining cases in the last twenty years of American public law."(9)

1. Chevron: A Two-Step Approach

Justice Stevens, writing for the unanimous Chevron court, adopted a two-step analytical approach to judicial deference to agency interpretations of law:

First, always, is the question whether Congress has directly spoken to the

precise question at issue. If the intent of Congress is clear, that is the

end of the matter; for the court, as well as the agency, must give effect

to the unambiguously expressed intent of Congress.(10)

Failing that, the analysis moves to step two:

If, however, the court determines Congress has not directly addressed the

precise question at issue, the court does not simply impose its own

construction on the statute, as would be necessary in the absence of an

administrative interpretation. Rather, if the statute is silent or

ambiguous with respect to the specific issue, the question for the court is

whether the agency's answer is based on a permissible construction of the

statute.(11)

Chevron itself provides a good example of how the two-step analysis applies. The environmental statute at issue in Chevron regulated "stationary sources" of air pollution.(12) Under regulations of the Environmental Protection Agency (EPA), a plant having several pollution-emitting devices, such as a factory with several smokestacks, would qualify as one stationary source.(13)

Applying step one of the analysis, the Supreme Court decided that the term "stationary source" was ambiguous.(14) The statute defined "stationary source" as "any building, structure, facility, or installation," but did not specify how to count plants with several sources of pollution.(15) Moving to step two, the Court decided that EPA's definition of "stationary source" was reasonable under the statute. The Court thus deferred to EPA's interpretation.(16)

2. Chevron's Theoretical Underpinnings

Why, one might ask, should the Court have deferred to an agency's interpretation of a term that Congress had defined by statute? Is it not, in the words of Chief Justice Marshall, "emphatically the province and duty of the judicial department to say what the law is"?(17)

I would like to pause, at least briefly, on this question. The Chevron analysis has been, and continues to be, widely criticized as ambiguous, inconsistent, and confusing.(18) If our task is to identify judicial trends in its application in the environmental arena, we need to take a preliminary step back and briefly consider Chevron's theoretical underpinnings.

One Supreme Court Justice has observed that "[i]t is not immediately apparent why a court should ever accept the judgment of an executive agency on,a question of law."(19) Cases and commentators have suggested several theoretical justifications for deferring to reasonable administrative interpretations. One justification, on a practical level, is that agencies often have an "intense familiarity with the history and purposes of the legislation at issue."(20) This is hardly a valid justification, however, if it is the constitutional duty of the courts to say what the law is.

Some, including independent prosecutor and former District of Columbia Circuit Judge Kenneth Starr, have suggested that Chevron is grounded in the principle of separation of powers.(21) The essence of the argument is that democratically accountable officials of the executive branch have the power to set policy, not judges.(22) As then-Judge Starr commented in 1986,

Chevron vindicates the appropriate and traditional function of judicial

review. It confirms the judiciary's historic role of declaring what the law

is, but prevents the judiciary from going beyond that venerable, legitimate

role and straying into the forbidden ground of overseeing administrative

agencies. . . . [T]hat role is allotted to the political branches, those

directly accountable to the people.(23)

Stated differently, when the "`traditional tools of statutory construction'" cannot resolve an ambiguity left by Congress, "the resolution of that ambiguity necessarily involves policy judgment," which, in the words of Associate Justice Antonin Scalia, is "not for the courts but for the political branches."(24)

I tend to agree with Justice Scalia that this separation of powers justification is not wholly persuasive. The "`traditional tools of statutory construction'" assuredly include consideration and evaluation of competing policies, as, for example, when a court chooses a particular statutory construction because the alternative would produce "`absurd'" results.(25) The reason courts defer to the agency's interpretation cannot merely be that courts lack "constitutional competence to consider and evaluate policy."(26)

I find that the most compelling theoretical justification for Chevron is that, as stated in the words of the First and District of Columbia Circuits, "[t]he extent to which courts should defer to agency interpretations of law is ultimately `a function of Congress's intent on the subject as revealed in the particular statutory scheme at issue.'"(27) As explained by Justice Scalia, whose expertise in this area is well known, where "Congress intend[s] a particular result, but is not clear about it," we have a pure question of law for the courts to resolve; where, however, "Congress ha[s] no particular intent on the subject, but [means] to leave its resolution to the agency," the only question of law for the courts to resolve is "whether the agency has acted within the scope of its discretion--i.e., whether its resolution of the ambiguity is reasonable."(28) I am inclined to concur in Justice Scalia's endorsement of this justification. As I had occasion to comment in two Clean Water Act(29) cases, "[p]laced between the express intent of Congress and the recalcitrance of the Agency, the proper role of the court . . . must be to remind the Agency that its duty is to apply the existing law,"(30) but deference is appropriate "where the Agency's decision on the meaning or reach of the [statute] involves reconciling conflicting policies committed to the Agency's care and expertise under the [statute]" by Congress.(31)

Thus, the preliminary question of how we even justify Chevron provides a very important backdrop against which to perform our survey of cases, and ultimately to glean some trends in judicial review. The fundamental issue, we will see, underlying most cases I will address, is what exactly does it take to satisfy the first step of Chevron--that is, when is a statute ambiguous? Justice Scalia predicted in 1989 that "[i]t is here . . . that the future battles over acceptance of agency interpretations of law will be fought."(32) That prophecy has already been realized, and then some, both in the courts and in the law reviews.

3. Textualism Versus Intentionalism

The biggest battle in the unresolved war over Chevron ambiguity involves statutory interpretation--in the words of the scholars, the battle of textualism versus intentionalism. Intentionalism, as they call it, "refers to the use of a variety of tools, including legislative purpose and legislative history, in an effort to determine the intent of the legislature when it included a particular word or phrase in a statute."(33) Textualism, on the other hand, "refers to the use of a different set of tools, including dictionary definitions, rules of grammar, and canons of construction, in an effort to derive the putatively objective meaning of the statutory word or phrase."(34)

The presumption among some legal scholars is that the Supreme Court now leans toward a more textualist approach to statutory interpretation.(35) Whether the Court as a whole has endorsed a textualist approach, which I seriously doubt, certain justices unquestionably have, and others at least have embraced it in certain cases. What the legal scholars are fussing over is whether a textualist approach leads to more deference or less deference to administrative agencies. The question, as I hope the cases will illustrate, is far from academic.

According to some scholars, textualism leads to excessive deference to administrative agencies.(36) The argument is that certain members of the Court see no reason to consult legislative history in a Chevron case. When a statute has a plain meaning, they simply accept that meaning. When the statute does not have a plain meaning, these Justices will not try to find a meaning by looking at committee reports, prior bills, and similar documents. Instead, they merely will defer to the agency interpretation.(37)

Some critics have deduced that this approach results in too-frequent deference to administrative agencies. Professor Cass R. Sunstein, for example, has posited that "[t]he combination of textualism, disregard of legislative history, and the Chevron principle . . .would produce a dramatic increase in the executive's power to make law. When the language is ambiguous, the executive's interpretation will control, even if the legislative history argues in the other direction."(38)

According to others, however, textualism leads to the entirely opposite result.(39) These critics point out that textualist judges believe that they can determine the meaning of any statute using canons of construction and other tools.(40) As a result, such judges rarely see the need to defer to administrative agencies.(41) In the words of Professor Richard Pierce, "[t]he Court now rarely defers to an agency's construction of ambiguous statutory language because a majority of Justices have now begun to use textualist methods of construction that routinely allow them to attribute `plain meaning' to statutory language that most observers would characterize as ambiguous or internally inconsistent."(42) Since textualist judges never think they are dealing with ambiguous statutes, they see no need to reach step two of the Chevron analysis.

So which is it, too little deference or too much deference? The best empirical study I have seen examined the voting patterns of one Justice, perhaps the most ardent textualist on the Court.(43) In the fifty-two opinions considering the Chevron doctrine through the 1994 term that Justice Scalia had written or joined he voted to uphold agency determinations about as frequently as he voted to invalidate them.(44)

It is, of course, beyond the scope of these remarks to reconcile the Supreme Court's Chevron jurisprudence with the appropriate method or methods of statutory interpretation. I do suggest we keep these concepts in mind, however, during our examination of trends in judicial review of administrative interpretations in the environmental arena.

4. Recent Trends in the Supreme Court

Looking now at the Supreme Court's recent Chevron cases, I will focus on three that involve "environmental" statutes.

a. City of Chicago v. Environmental Defense Fund

I will begin with City of Chicago v. Environmental Defense Fund,(45) a 1994 case in which the Court interpreted a provision of the Resource Conservation and Recovery Act of 1976.(46) The Act is a comprehensive environmental statute that empowers EPA to regulate hazardous wastes. In 1980, EPA implemented the Act with rules defining "hazardous waste" to exclude household waste, facilities used to incinerate household waste, and ash produced by the process of incinerating household waste.(47)

Four years after EPA issued the regulations, Congress enacted an amendment to the Act entitled "Clarification of Household Waste Exclusion."(48) The legislative history of the amendment, and in fact its title, suggested that the statute was intended to ratify the EPA rule exempting such ash from the definition of hazardous waste.(49)

Justice Scalia, however, writing for a seven-Justice majority, concluded that Congress's 1984 amendment to the Act did not exempt ash generated by the incineration of household waste from the definition of hazardous waste. According to Justice Scalia, the amendment's plain meaning controlled, which did not exempt ash generated by incinerating household waste.(50) Though a Senate Report suggested the contrary,(51) Justice Scalia held fast to what he considers the proper method of statutory interpretation: "[I]t is the statute, and not the Committee Report, which is the authoritative expression of the law, and the statute prominently omits reference to generation."(52) The Court therefore rejected deference to EPA's interpretation.

Justice Stevens, joined by Justice O'Connor, dissented. Justice Stevens criticized the majority for relying on the absence of one word--"generating"--in the statute when the legislative history provided compelling evidence that Congress intended to ratify the 1980 EPA rule.(53)

In terms of marking a judicial trend, the majority opinion illustrates both concepts I discussed at the outset. First, the Court's conclusion that the statute's plain language precluded deference is consistent with what I find to be the most compelling theoretical justification for judicial deference to agencies: the extent to which courts should defer to agency interpretations of law is ultimately a function of Congress's intent on the subject as revealed in the statute at issue. The disagreement in this case was over whether Congress intended to adopt the 1980 EPA regulations. As I posited earlier, where statutory language is unclear, whether or not Congress intends a particular result--exempting ash, for example--is a pure question of statutory interpretation for the courts to resolve. Deference, in such cases, is inappropriate.

Second, the case is an example of how textualism can result in no deference to the administrative agency. By its plain meaning, the statute did not exempt ash, and therefore deference did not apply. Justice Scalia acknowledged in a 1989 lecture that his textualist approach may lead to less deference to administrative interpretations. He commented that one who, like himself,

finds more often (as I do) that the meaning of a statute is apparent from

its text and from its relationship with other laws, thereby finds less often

that the triggering requirement for Chevron deference exists. It is thus

relatively rare that Chevron will require me to accept an interpretation

which, though reasonable, I would not personally adopt.(54)

One might say that the flip side of that equation aptly characterizes the dissent's position in City of Chicago:

[O]ne who abhors a "plain meaning" rule, and is willing to permit the

apparent meaning of a statute to be impeached by the legislative history,

will more frequently find agency-liberating ambiguity, and will discern a

much broader range of "reasonable" interpretation that the agency may adopt

and to which the courts must pay deference. The frequency with which

Chevron win require that judge to accept an interpretation he thinks wrong

is infinitely greater.(55)

b. PUD No. 1 of Jefferson County v. Washington Department of Ecology

In another 1994 case, PUD No. 1 of Jefferson County v. Washington Department of Ecology,(56) the Court addressed whether the State of Washington could condition a license for a hydroelectric project on the maintenance of minimum stream flows to protect salmon and steelhead runs.(57)

Since the hydroelectric project would result in "discharges," its proponents had to obtain state certification of the project under section 401 of the Clean Water Act.(58) The State, as part of the certification, imposed a minimum stream flow condition on the project. The Supreme Court had to decide whether the stream flow requirement was a permissible condition of the State's section 401 certification.(59) Justice O'Connor, writing for a seven-Justice majority, held that it was permissible, reasoning that the relevant subsection authorized a state to impose additional conditions and limitations on a proposed project once the threshold requirement of a "discharge" was satisfied.(60)

The opinion is somewhat difficult to analyze in the Chevron framework. The Court upheld EPA's interpretation of section 401, but it did so by concluding that "the literal terms of the statute" required the interpretation adopted by the agency.(61) The Court also concluded, however, that EPA's interpretation of section 401 was "reasonable" and thus "entitled to deference."(62)

Justice Thomas's dissent, in which Justice Scalia joined, sharply criticized the majority's interpretation of section 401. Justice Thomas concluded that "the text and structure of [sections] 401 indicate that a State may impose . . . only those conditions that are related to discharges."(63) The minimum stream flow requirement was thus beyond the State's authority as defined in section 401.

Perhaps more important for our purposes, the dissent noted that, "[a]s a preliminary matter, the Court appears to resort to deference under Chevron without establishing through an initial examination of the statute that the text of the section is ambiguous."(64)

What does this add to the analysis? As in City of Chicago, the Justices' dispute focused on what result the statute actually mandated. Under our theoretical justification, if the literal terms of the statute mandated EPA's implementation, there was no need to address the issue of deference. The opinion, as the dissent points out, is somewhat curious in this regard, and commentators have struggled with its interpretation.(65) At a minimum, the dissent makes clear that resort to step-two deference should not be had without a thorough step-one conclusion that the statute is ambiguous.

c. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon

The last decision of the Supreme Court meriting our consideration in the environmental realm of judicial review is Babbitt v. Sweet Home Chapter of Communities for a Great Oregon.(66) Decided in 1995, Sweet Home applies Chevron to the plight of the northern spotted owl.(67)

The Endangered Species Act (ESA)(68) provides that "with respect to any endangered species . . . it is unlawful for any person . . . to . . . take any such species within the United States."(69) The statute defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."(70) In implementing the Act, the Secretary of the Interior promulgated a regulation that defined "harm" as "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering."(71) Small landowners, logging companies, and families dependent on the forest products industries in the Northwest and Southeast challenged the validity of the regulation on its face.

Justice Stevens, writing for a six-Justice majority, concluded that the Act's text, legislative history, and purpose supported the "reasonableness" of the Secretary's definition of "harm." Citing Chevron, the Court concluded "that Congress did not unambiguously manifest its intent to adopt respondents' view and that the Secretary's interpretation is reasonable."(72)

Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, vigorously dissented. Justice Scalia disagreed with the Court's construction of the term "harm," arguing that the words surrounding "harm" require "acts. . . which are directed immediately and intentionally against a particular animal--not acts or omissions that indirectly and accidentally cause injury to a population of animals."(73) He also countered the support the majority garnered from the legislative history. Justice Scalia stated that "[e]ven if legislative history were a legitimate and reliable tool of interpretation," it contained references contrary to the Court's conclusion.(74)

This case provides a clear example of the dichotomy between textualists and intentionalists in the deference arena Justice Scalia again found the meaning of the statute apparent from its text, and thus there was no reason to defer. For Justice Stevens, on the other hand, there was no one plain meaning of the statute; rather, the Secretary's definition of "harm" simply rested on a permissible construction, and deference was owed.

The point is this: the law reviews are right when they say that the Court "has not applied the Chevron test in a consistent manner."(75) The competing approaches, however, at least from the environmental cases we have briefly examined, are reasonably clear. The textualists seem to have manifested less deference. The intentionalists seem to have manifested more deference. For the practitioner, an awareness of these competing interests is essential. Whether the theoretically inclined will sympathize with one school of thought or the other depends, in large measure, on how one justifies any deference to begin with. I myself hearken back to Justice Marshall's aphorism: it is "emphatically the province and duty of the judicial department to say what the law is."(76) As Chevron makes clear, "[i]f a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect."(77) In such instances, I find deference hard to justify.

I admit, however, with some reservations, that Justice Stevens correctly noted in Sweet Home that an opinion I authored in 1988,, Palila v. Hawaii Department of Land and Natural Resources,(78) had also upheld the Secretary's definition of "harm."(79) It may seem strange for a circuit judge to acknowledge a Supreme Court endorsement of his conclusion with reservations, but I do confess some sympathy with the Sweet Home dissent.

A circuit judge is caught in the middle of conflicting Supreme Court precedent as to what exactly are the "traditional tools of statutory interpretation." While we all have our theories,(80) federal judges must follow the law as the Supreme Court hands it down.(81) In Sweet Home, the Supreme Court did, after all state essentially the same conclusion I did. In my words, we upheld the Secretary because the regulation was "reasonable and not in conflict with the intent of Congress."(82) In Justice Stevens' words, the Supreme Court upheld the Secretary because "Congress did not unambiguously manifest its intent to adopt respondents' view and . . . the Secretary's interpretation is reasonable."(83) The danger, I am afraid, is conflation of the two distinct steps of the Chevron analysis. When the two steps collapse into one, the analysis not only lends itself to inconsistent application but is a less sound constitutional doctrine. We all would benefit, I suppose, if the Court were more faithful to its own test.

The pragmatist might, of course, abandon this entire framework. One means of reconciling these cases is to say that in each one--City of Chicago, Jefferson County, and Sweet Home--those who joined the majority opinions simply decided to maximize environmental protection.(84) While I think that explanation is facile, given the criss crossing of Justices in the opinions, I will leave any further speculation on that point to the academy.

5. Recent Trends in the Ninth Circuit

Our task does not end with the Supreme Court. Since the Supreme Court considers fewer than one-tenth of one percent of all disputes in the federal courts, "[t]he Chevron test has largely realized its potential at the circuit court level."(85) Professor Pierce observed that regardless of what the Supreme Court has done, "[a]ppellate courts routinely accord deference to agency constructions of ambiguous language in agency-administered statutes."(86)

To test that hypothesis, I would like to walk through a sample of opinions my own court handed down within the last year.

a. American Tunaboat Association v. Brown

In October 1995, the Ninth Circuit considered whether the National Marine Fisheries Service permissibly applied the International Dolphin Conservation Act(87) when, on February 7, 1994, it prohibited the American Tunaboat Association from engaging in purse seine tuna fishing for the rest of 1994.(88) The case, American Tunaboat Association v. Brown, presents a good example of broad deference to an agency's construction of the governing statute.

One subsection of the Act provided that from January 1, 1993, to March 1, 1994, tuna fishing boats could not cause more than 800 total dolphin mortalities.(89) Another subsection provided that in each year after 1992, total dolphin mortalities could not exceed the number of dolphin mortalities that occurred the year before.(90) In 1993, tuna boats had killed 115 dolphins. From January 1994 to early February 1994 alone, however, the boats had already killed 107 dolphins.(91)

When the significance of the number of deaths became apparent, the Service prohibited the American Tunaboat Association from taking any dolphins after February 8, 1994. In so doing, it determined that the Association's quota for 1994 was 114 dolphins. It relied on the second provision I mentioned--that the number of dolphin mortalities could not exceed the number taken the year before. The Association, relying on the other provision, claimed that the statute specifically provided a quota of 800 from January 1993 to March 1994.(92)

The Ninth Circuit panel believed that the conflict between the two provisions arose only because the Association's dolphin mortality rate for the first few weeks of 1994 threatened to outstrip the number of dolphin mortalities for 1993. This was a situation, in the court's view, that Congress had neither anticipated nor addressed.(93) Applying Chevron, the issue was whether the Service's interpretation of the Act was a 'permissible construction."(94) The court concluded that it was, reasoning that the Service's "interpretation of the annual reduction provision and the designated quota provision effectuates the underlying purposes of these two provisions and the overriding purpose of the [Act] to eliminate dolphin mortalities by the year 1999."(95) Deference was thus owed.

One might question whether the textualist would have deferred in this context. I am tempted to say that where only one of two apparently inconsistent provisions of the statute can govern, the textualist, for whom the nebulous legislative purpose is largely irrelevant, would have attempted to determine which provision objectively applied.

This case also presents a good opportunity to revisit Chevron's underlying principles. The first principle underlying Chevron is that Congress's intent on whether courts should defer to agencies is what controls. Some might argue that, applying traditional tools of statutory interpretation, Congress surely intended that one or the other provision controls.

An opinion I authored in 1992 may shed some light on the distinction. In Northwest Environmental Defense Center v. Brennen,(96) we had to decide the validity of federal fishing regulations setting harvest limits for Oregon coastal Coho salmon.

The Magnuson Fishery and Conservation Management Act(97) provided National Standards for fishery conservation and management. National Standard 1 stated that "[c]onservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry."(98) The Secretary of Commerce had defined the term "overfishing" by regulation.(99) The Northwest Environmental Defense Center challenged the Secretary's definition. The statute itself, however, vested broad discretion in the Secretary to define overfishing. We thus deferred under Chevron to the Secretary's definition.(100)

The case did not present any pure question of statutory interpretation--whether Congress intended one result or the other. Rather, it presented a situation where Congress implicitly meant to leave resolution to the agency itself. As such, deference was indeed owed.

b. Rainsong Co. v. Federal Energy Regulatory Commission

Coming back to our more recent cases, Rainsong Co. v. Federal Energy Regulatory Commission,(101) decided this past March, illustrates a similar point. Rainsong had applied to the Commission for a license to build a hydropower electric plant on Lena Creek in the Olympic National Forest.(102) At issue were two provisions of the Federal Power Act.(103) The first provision authorized the Commission to issue a license only if the Commission found that the license would not be inconsistent with the purpose of the reservation--here, the forest.(104) The second provision, in essence, directed the Commission, in deciding whether to issue a license, to give equal consideration to energy conservation, wildlife protection, recreational protection, and environmental quality.(105)

The Commission denied Rainsong's application on the ground that the license would be inconsistent with the Forest Service's Plan for the forest under the first provision of the Act. The Commission did not, however, give equal consideration to the factors set out in the second provision. Rainsong argued that the Commission failed to comply with its statutory mandate when it refused to consider the latter provision. The Commission responded that, in this particular case, it did not have to consult the factors of the second provision.(106)

The court, citing Chevron. stated that "[a]n agency's interpretation of a legislative delegation is entitled to deference where Congress' intent on the issue is not explicit."(107) Before the court was a pure issue of statutory interpretation--whether the Commission had to consider both the first and second provisions in determining whether to issue a license. The court concluded that the statute was unambiguous, as it required the Commission to consider both provisions.(108)

Stated differently, Congress required the Commission to consider certain factors in deciding whether to issue a license. The court had to resolve the legal issue of what the statute specifically required the Commission to consider. Since the court concluded that the Commission did not comply with its statutory mandate, as interpreted by the court as a matter of law, deference did not apply.

c. Ober v. Environmental Protection Agency

I should also make brief mention of Ober v. Environmental Protection Agency,(109) the Phoenix clean air plan case. In Ober, decided this past May, we rejected Arizona's clean air plan for Phoenix, holding that it failed to comply with the federal Clean Air Act.(110)

Arizona had submitted a State Implementation Plan for Phoenix in 1993 as required by the Clean Air Act. The Clean Air Act required the State to demonstrate whether it could attain 1) a twenty-four hour standard and 2) an annual standard for air pollution within a certain time frame.(111) Arizona's Plan demonstrated that attainment of the annual standard was "impracticable" by the Act's target date, and requested that EPA classify Phoenix as a "serious nonattainment area," which would give the state more time to comply. Arizona's Plan did not, however, address the practicality or impracticality of attaining the twenty-four hour standard.(112) EPA approved the Plan, determining that it complied with the Clean Air Act.(113) Phoenix residents sued EPA, claiming that the Plan had to address both the twenty-four hour standard and the annual standard.

The court began its analysis with the observation that "[t]he statute does not directly speak to [the] issue" of whether the Plan had to address both standards.(114) Chevron, according to the court, required a determination as to "whether the EPA's interpretation [was] based on a permissible construction of the statute."(115) Analyzing the Act and its goals, the court concluded that EPA's interpretation "was not based on a permissible construction of the Clean Air Act."(116) The court held that the Clean Air Act required an implementation plan to address both the annual standard and the twenty-four hour standard.(117)

The textualist might argue that the court's analysis was backwards. If, as a matter of statutory construction, the Act required that both standards be addressed, why did we move beyond step one of Chevron?? Should the court not have simply given effect to the expressed intent of Congress under step one, rather than couch the analysis in terms of whether the agency's interpretation was based on a permissible construction of the statute?(118)

If the court should not have ventured beyond step one of Chevron, we surely cannot fault my colleagues for confusing concepts. As I earlier pointed out, the Supreme Court itself has flip-flopped between the two steps, as, for example in Jefferson County, where the Court seemed to speak of "literal terms" and "deference" all in one breath.(119) That approach, you will recall, was much to the chagrin of Jefferson County's textualist dissent.

d. Northwest Forest Resource Council v. Pilchuck Audubon Society

One last Ninth Circuit case should round out our analysis. The case, Northwest Forest Resource Council v. Pilchuck Audubon Society,(120) addressed the ongoing plight of the marbled murrelet in conjunction with the 1995 Rescissions Act.(121) The Rescissions Act generally sets out an emergency salvage timber program, expediting the award of timber harvesting contracts on federal lands.(122)

One subsection of section 2001 provides that "[n]o sale unit shall be released or completed under this subsection if any threatened or endangered bird species is known to be nesting within the acreage that is the subject of the sale unit."(123) The Oregon population of marbled murrelets is on the federal list of threatened species.(124) The Forest Service had concluded that certain logging would jeopardize the continued existence of murrelets.(125) This conclusion derived from application of the "PSG Protocol," a method designed to detect the presence or absence of murrelets in a forest.(126) The issue was whether the PSG Protocol comported with the "known to be nesting" requirement, or, in more general terms, whether the statute required the agency to use any particular type of evidence in making a "known to be nesting" determination.(127) The Northwest Forest Resource Council argued for an interpretation that would allow a determination of "nesting" only if there was physical evidence, such as eggshell fragments, fecal rings, or dead chicks present on or below a tree.(128) The PSG Protocol was more statistically based.(129)

According to the Ninth Circuit panel, "[i]t is exactly this type of legislation, aimed at administrative agencies of government, for which Chevron requires deference to agency biologists' expertise."(130) "The power of the Secretaries to administer the Congressionally created program 'necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.'"(131)

The question for the court was whether the agency's use of the PSG protocol was "a reasonable interpretation of the statute's requirement that threatened or endangered birds are 'known to be nesting'. . . ."(132) In the court's view, "[t]he location and determination of what birds are doing in which location is the type of program that has to be designed and implemented by agency experts unless there is clear Congressional intent to the contrary."(133) The court held, accordingly, that resort to the protocol was "a reasonable interpretation of the statute."(134)

This result could be one to satisfy most all the pundits. On a theoretical level, the issue was not whether Congress intended the PSG protocol rather than some other method. As the court explained, Congress had no intent on that issue but merely left a gap for the agency to fill. The only question of law for the court to resolve was whether the agency acted within the scope of its discretion; in other words, whether its answer was based on a permissible construction of the statute. Since it was, the court deferred.

III. CONCLUSION

My goal in reviewing and commenting on these environmental cases has not been to reconcile them. Our environmental Chevron jurisprudence, whether Supreme Court or Ninth Circuit, may be fairly characterized as confusing, perhaps even lending itself to inconsistent application. My aim has been to point out the competing interests and policies underlying the confusion. The cases demonstrate, on one level, that we cannot divorce Chevron deference from the appropriate methods of interpreting statutes. The tools a lawyer or a judge employs to interpret a statute will impact on whether deference is warranted. On a more fundamental level, regardless of how one goes about interpreting a statute, we should all reread Chevron's footnote 9:

The judiciary is the final authority on issues of statutory construction

and must reject administrative constructions which are contrary to clear

congressional intent. If a court, employing traditional tools of statutory

construction, ascertains that Congress had an intention on the precise

question at issue, that intention is the law and must be given effect.(135)

Perhaps we as judges need to adhere more closely to Chevron's two sequential steps. When we say, on the one hand, that the plain language of the statute compels a certain result, and then, in the same breath, that the agency's interpretation is based on a permissible construction of the statute, we are confusing concepts, and most likely practitioners as well. Where Congress intends a result, but is unclear about it, it is the province and duty of the court to interpret the statute, and the analysis ends there. Only if the court determines, after its own examination of the legislation, that Congress did not have an intent as to the result does the court consider whether the agency's view is reasonable. If we address whether the agency has acted within the scope of its discretion before determining whether the agency even has discretion, we weaken Chevron basic theoretical underpinnings.

My advice to the environmental bar is to monitor more than just the specific interpretations of environmental statutes by the Supreme Court and the Ninth Circuit, and, of course, EPA and like agencies. Monitor each court's approach to statutory interpretation and its faithfulness to the Chevron paradigm. These issues, as much as any others, merit your full advocacy and vigilance.

If I may draw on the learned wisdom of one last oft-quoted commentator from the academy, Professor Yogi Berra: "Chevron lives, but don't let the rigor mortis set in." (1) Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 511.

(2) Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

(3) 5 U.S.C. [sections] 701(a)(1) (1994). Judicial review of agency action is unavailable where the relevant statute "preclude[s] judicial review." Id. In Block v. Community Nutrition Institute, 467 U.S. 340 (1984), the Supreme Court explained that "[w]hether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved" Id. at 345. Professor Werhan recently explained how this case marked the beginning of a trend toward restricting the availability of judicial review "by interpreting enabling acts to `preclude judicial review.'" Keith Werhan, Delegalizing Administrative Law, 1996 U. Ill. L. Rev. 423, 450 (quoting 5 U.S.C. [sections] 701(a)(1) (1994)).

(4) 504 U.S. 565 (1992) (holding that environmental groups did not have standing under ecosystem, animal, or vocational nexus theory to challenge regulation of the Secretary of Interior which required other agencies to confer with him under the Endangered Species Act (ESA) only with respect to federally funded projects in the United States and on the high seas, but not to confer with him under the ESA for federally funded projects in other countries which might threaten endangered species).

(5) The Ninth Circuit, for example, has broadly interpreted the Clean Water Act's requirements for citizen standing, in direct conflict with other circuits. See Northwest Envtl. Advocates v. City of Portland, 56 F.3d 979, 986 (9th Cir. 1995) (holding citizens have authority to enforce all permit conditions), reh'g en banc denied, 74 F.3d 945 (9th Cir. 1996) (O'Scannlain, J., dissenting from order rejecting suggestion for rehearing en banc).

(6) 5 U.S.C. [sections] 701(a)(2) (1994). In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), the Supreme Court explained that an agency action is exempt from judicial review because it is committed to agency discretion only "in those rare instances where `statutes are drawn in such broad terms that in a given case there is no law to apply.'" Id. (quoting S. Rep. No. 79-752, at 26 (1945)).

Recent commentators have observed, in some instances lamented, that the trend has been to expand the committed-to-agency-discretion exemption for judicial review beyond the traditional presumption of reviewability of agency action. See Werhan, supra note 3, at 448-49; see also Lincoln v. Vigil, 508 U.S. 182, 193 (1993) (holding that Indian Health Service's decision to discontinue Indian Children's Program was unreviewable under the committed-to-agency-discretion provision; the Court explained that "as long as the agency allocates funds from a lump-sum appropriation to meet permissible statutory objectives, [the APA] gives the courts no leave to intrude"); Oregon Natural Resources Council v. Thomas, 92 F.3d 792, 798-99 (9th Cir. 1996) ("[W]here there is no law to apply for purposes of [sections] 701(a)(2), it is legally irrelevant whether an agency has made a `finding' that is `contrary to the evidence before it' or that's `so implausible that it couldn't be ascribed to a difference in view or the product of agency expertise.'").

(7) 467 U.S. 837 (1984).

(8) Kenneth W. Starr, Judicial Review in the Post-Chevron Era, 3 Yale J. on Reg. 283, 312 (1985).

(9) Cass R. Sunstein, Law and Administration After Chevron, 90 Colum. L. Rev. 2071, 2075 (1990).

(10) Chevron, 467 U.S. at 842-43 (footnote omitted).

(11) Id. at 843 (footnote omitted).

(12) Id. at 839-40 (discussing requirements of the Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685).

(13) Id. at 840 (citing 40 C.F.R. [sections] 51.18(j)(1)(i), (ii) (1983)).

(14) Id. at 860.

(15) Id. at 869-60.

(16) Id.

(17) Marbury v. Madison, 6 U.S. (1 Cranch) 137, 177 (1803).

(18) See Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 Colum. L. Rev. 462, 470-76 (1989); Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103. Harv. L. Rev. 406, 466 (1989).

(19) Scalia, supra note 1, at 613.

(20) Id. at 614; see Chevron, 467 U.S. at 866 ("Judges are not experts in the field . . . .").

(21) Starr, supra note 8, at 308-09.

(22) See Chevron, 467 U.S. at 866 ("The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones.").

(23) Starr, supra note 8, at 309.

(24) Scalia, supra note 1, at 616.

(25) Id.

(26) Id.

(27) Process Gas Consumers Group v. United States Dep't of Agric., 694 F.2d 778, 791 (D.C. Cir. 1982) (en banc) (quoting Constance v. Secretary of Health Human Servs., 672 F.2d 990, 996 (1st Cir. 1982)).

(28) Scalia, supra note 1, at 616.

(29) 33 U.S.C. [subsections] 1251-1387 (1994).

(30) Abramowitz v. EPA, 832 F.2d 1071, 1079 (9th Cir. 1987).

(31) Rybachek v. EPA, 904 F.2d 1276, 1284 (9th Cir. 1990).

(32) Scalia, supra note 1, at 520-21.

(33) Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 Colum. L. Rev. 749, 750 (1995).

(34) Id.

(35) One commentator, see Werhan, supra note 3, at 459-60, has gone so far as to suggest that the Court actually reformulated a textualist Chevron test in National R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407 (1992). In that case, the Court stated:

If the agency interpretation is not in

conflict with the plain language of the statute, deference is due. In

ascertaining whether the agency's interpretation is a permissible

construction of the language, a court must look to the structure and language

of the statute as a whole. If the text is ambiguous and so open to

interpretation in some respects, a degree of deference is granted to the

agency, though a reviewing court need not accept an interpretation which is

unreasonable.

National RR Passenger Corp., 503 U.S. at 417-18 (citations omitted).

(36) See Gregory E. Maggs, Reconciling Textualism and the Chevron Doctrine: In Defense of Justice Scalia, 28 Conn. L. Rev. 393, 394 (1996).

(37) Id. at 402-03.

(38) Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 430 n.91 (1989); see also Bernard Schwartz, "Shooting the Piano Player"? Justice Scalia and Administrative Law, 47 Admin L. Rev. 1, 50 (1995).

(39) See Pierce, supra note 33, at 752; Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 Wash. U. L.Q. 361, 364 (1994); Michael Herz, Textualism and Taboo: Interpretations and Deference for Justice Scalia, 12 Cardozo L. Rev. 1663, 1670 (1991).

(40) See, e.g., Pierce, supra note 33, at 752.

(41) See, e.g., Maggs, supra note 36, at 404-06.

(42) Pierce, supra note 33, at 752 (footnote omitted).

(43) Maggs, supra note 36, at 407-17.

(44) Id. at 409.

(45) 511 U.S. 328 (1994).

(46) 42 U.S.C. [subsections] 6901-6992k (1994).

(47) See City of Chicago, 511 U.S. at 332-33 (quoting 40 C.F.R. [sections] 261.4(b)(1) (1993)).

(48) See id. at 333-34 (citing Pub. L. No. 98-616, 98 Stat. 3252 (1984)).

(49) See id. at 334-35.

(50) Id. at 334.

(51) See id. at 337 (discussing S. Rep. No. 98-284, at 61 (1983)).

(52) Id. at 337.

(53) Id. at 345 (Stevens, J., dissenting).

(54) Scalia, supra note 1, at 521.

(55) Id.

(56) 511 U.S. 700 (1994)

(57) Jefferson County, 511 U.S. at 703.

(58) Id. at 707-08 (quoting 33 U.S.C. [sections] 1341(a) (1994)).

(59) Id. at 710.

(60) Id. at 712.

(61) Id. at 715.

(62) Id. at 712.

(63) Id. at 728 (Thomas, J., dissenting).

(64) Id.

(65) See, e.g., Pierce, supra note 33, at 754 n.26.

(66) 115 S. Ct. 2407 (1995).

(67) Id. at 2416.

(68) 16 U.S.C. [subsections] 1531-1544 (1994).

(69) Id. [sections] 1538(a)(1)(B).

(70) Id. [sections] 1532(19). (71) 50 C.F.R. [sections] 17.3 (1995).

(72) Sweet Home, 115 S. Ct. at 2416.

(73) Id. at 2423 (Scalia, J., dissenting).

(74) Id. at 2426-27 (Scalia, J., dissenting).

(75) Pierce, supra note 33, at 750.

(76) Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

(77) Chevron, 467 U.S. at 837 n.9.

(78) 852 F.2d 1106 (9th Cir. 1988).

(79) Id. at 1108.

(80) I have, on occasion, cited to a statute's legislative history with the disclaimer "to the extent it might be relevant." See, e.g., Leslie Salt Co. v. United States, 55 F.3d 1388,, 1398 (9th Cir. 1995) (O'Scannlain, J., dissenting in part) (dissenting from the majority decision that civil penalties are mandatory for Clean Water Act violations because imposition of civil penalties should be at the court's discretion due to the lack of legislative history to support mandatory civil penalties).

(81) In United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), the Supreme Court stated that "[a]n agency's construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress. Accordingly, our review is limited to the question whether it is reasonable, in light of the language, policies, and legislative history of the Act . . . " Id. at 131 (citations omitted); see also Leslie Salt Co., 56 F.3d at 1394 ("The reasonableness of the . . . interpretation must be judged in light of the Act's language, policies, and legislative history."); In re Transcon Lines, 89 F.3d 559, 567 (9th Cir. 1996) ("We must defer to the [agency's] statutory constructions unless those constructions are contrary to clear congressional intent or frustrate the policy that Congress sought to implement.").

(82) Palila, 852 F.2d at 1108.

(83) Sweet Home, 115 S. Ct. at 2416.

(84) See Peter L. Strauss, The Supreme Court, Textualism, and Administered Law, 20 ADMIN. & REG. L. NEWS 1,13 (Fall 1994).

(85) Pierce, supra note 33, at 749-50.

(86) Id.

(87) 16 U.S.C. [subsections] 1411-1418 (1994).

(88) American Tunaboat Ass'n v. Brown, 67 F.3d 1404, 1405-06 (9th Cir. 1995).

(89) 16 U.S.C. [sections] 1416(a)(1) (1994).

(90) Id. [sections] 1416(a)(4)(A).

(91) American Tunaboat, 67 F.3d at 1406-07.

(92) Id. at 1407.

(93) Id. at 1408.

(94) Id. (quoting Chevron, 467 U.S. at 843).

(95) Id. at 1410.

(96) 958 F.2d 930 (9th Cir. 1992).

(97) 16 U.S.C. [subsections] 1801-1882 (1994).

(98) Id. [sections]1851(a).

(99) 50 C.F.R. [sections] 602.11(c)(1) (1995); National Fisheries Management Plan, 16 U.S.C [sections] 1851(b) (1994) (authorizing the Secretary to promulgate rules under this Act).

(100) Northwest Environmental Defense Center, 958 F.2d at 935.

(101) 78 F.3d 1435 (9th Cir. 1996).

(102) Id. at 1436.

(103) 16 U.S.C. [subsections] 791-828c (1994).

(104) See Rainsong, 78 F.3d at 1438 (citing Federal Power Act, 16 U.S.C. [sections] 797(e) (1994)).

(105) See id. (citing Federal Power Act, 16 U.S.C. [sections] 797(e) (1994)).

(106) See id.

(107) Id.

(108) Id. at 1438-40.

(109) 84 F.3d 304 (9th Cir. 1996).

(110) 42 U.S.C. [subsections] 7407-7671q (1994); Ober, 84 F.3d at 306.

(111) 16 U.S.C. [sections] 7407 (1994).

(112) Ober, 84 F.3d at 307.

(113) Id.

(114) Id. at 309

(116) Id. 116 Id. at 310.

(117) Id. at 311.

(118) See, e.g., State of Oregon v. Bowen, 854 F.2d 346, 348 (9th Cir. 1988) ("We conclude that the Secretary's interpretation is in conflict with the plain meaning of the statutory mandate.").

(119) See supra Part II. A. 4. b.

(120) 97 F.3d 1161 (9th Cir. 1996).

(121) 16 U.S.C. [sections] 1611 (Supp. I 1995)

(122) Id. [sections] 1611(b), (c).

(123) Id. [sections] 1611(k)

(124) Northwest Forest Resource Council, 97 F.3d at 1167.

(125) Id.

(126) See, e.g., Northwest Forest Resource Council, 97 F.3d at 1167; see also Marbled Murrelet v. Pacific Lumber Co., 880 F. Supp. 1343, 1350 (N.D. Cal. 1995) ("The Pacific Seabird Group (PSG) is a professional scientific organization that has taken the lead role in coordinating and promoting research on marbled murrelets, and in providing researchers and land managers with standardized techniques to determine marbled murrelets use of inland forest sites."). PSG developed its PSG Protocol in 1990 to assist wildlife biologists. Marbled Murrelet 880 F. Supp. at 1350. The PSG Protocol is updated annually and is based on the best available information on marbled murrelet biology. Id. at 1351.

(127) Northwest Forest Resource Council, 97 F.3d. at 1168-69.

(128) Id. at 1168.

(129) See id. at 1169.

(130) Id.

(131) Id. (quoting Chevron, 467 U.S. at 843) (citations omitted).

(132) Id.

(133) Id. at 1170.

(134) Id.

(135) Chevron, 467 U.S. at 843 n.9.

The Honorable Diarmuid F. O'Scannlain, Circuit Judge, United States Court of Appeals for the Ninth Circuit. This essay was originally presented as a lecture to the Federal Bar Association 1996 Convention on September 19, 1996, in Portland, Oregon. The author acknowledges the valuable assistance of his law clerk, Anthony J. Bellia, Jr.