The Conservative Case for Chevron Deference, Chapter 3 (Plus an Auer Bonus!)

The conservative cases in support of Chevron deference keep arriving.  This week, the 9th Circuit Court of Appeals affirmed EPA’s federal implementation plan for compliance with its regional haze regulations by the Navajo Generating Station, which is apparently the largest coal-fired power plant in the western United States.  Environmentalists challenged the FIP on a number of grounds, including EPA’s decision to grant Navajo Generating emission credits for some early NOx reductions as well as the amount of time the FIP gave the facility to attain the required reductions.

The 9th Circuit upheld the FIP, largely on the ground that it had to defer both to EPA’s reasonable interpretation of the Clean Air Act under Chevron and to EPA’s reasonable interpretation of its regional haze regulations under the related concept of Auer deference.

Affirming EPA decisions to give a regulated entity more flexibility in how it attains compliance, on the ground that those decisions are entitled to deference because they were based on EPA’s reasonable interpretation of the Clean Air Act and its implementing regulations, would seem to be something conservatives should support.

In fairness, the case is much more about Auer deference than Chevron deference, but the Court did also cite Chevron four times, so I’m adding this to the list.

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