Last week, EPA proposed revisions to its regulations governing the issuance of water quality certifications under § 401 of the Clean Water Act. The regulations are long-overdue and, notwithstanding the source, some of the changes are appropriate. Nonetheless, the key element of the revisions is the provision that would preclude state and tribal agencies from considering issues other than those related to the water quality impacts of discharge being permitted – and to include that provision, EPA had to get around the clear holding in PUD No. 1 of Jefferson County v. Washington Department of Ecology, in which the Supreme Court unambiguously held that state and tribal agencies do have such authority.
And how did EPA manage to pull this regulatory authority out of a seemingly well-defined jurisprudential hat?
Chevron, of course! Here’s how an agency avoids a seemingly definitive Supreme Court holding in four easy steps.
- Conclude that the holding was permissive under Chevron, rather than being based on the unambiguous language of the statute.
- Determine that the new interpretation is a permissible one under the Clean Water Act.
- Decide that the new interpretation is the better policy approach.
- Cite to cases making clear that interpretations of ambiguous statutory language under Chevron are subject to revision by the agency at a later point in time.
Are conservatives ever going to concede I’m right that Chevron is not a liberal plot?