In a decision late last month, the 9th Circuit Court of Appeals made clear just how much deference agencies can get under the Supreme Court decisions in Chevron and Auer. The question in NRDC v. USDOT was whether, in determining whether a project to connect the Ports of Los Angeles and Long Beach to I-405 was in conformity with the California SIP, DOT reasonably performed a qualitative analysis of PM concentrations based on a receptor five miles from the project area.
The regulations require the proponent to demonstrate that the project will not “increase the frequency or severity of any existing violation of any standard in any area.”
“Any area” is not defined. EPA and DOT jointly promulgated guidance governing these types of analyses, but the guidance also does not define “any area.” NRDC’s position was basically that “any” means any, which really means “every.” The Court agreed that “any” is normally read expansively, but still concluded that it is ambiguous in this context – which was pretty much the end of the game.
The Court found that:
the governing regulations do not decisively answer whether the CAA required qualitative hot-spot analysis within the immediate vicinity of the project area during the time period at issue.
The Court then found that the EPA/DOT guidance “implicitly, but authoritatively, fills this void. Finally, citing Auer, the court stated that:
Because this interpretation is not “plainly erroneous or inconsistent with the regulation,” we must afford it considerable deference.
Let me be clear. In the modern administrative state, Congress isn’t going to answer questions at this level of detail, and, at least for now, the non-delegation doctrine seems pretty much a dead letter. However, let’s not kid ourselves about how much authority we really are giving to agencies.
Kind of depends on whose ox is being gored.