Did the Administrative Procedure Act apply in
Chevron v. NRDC?
Last Thursday I highlighted a curious footnote in the dissent penned by Senior Circuit Judge Ray Randolph in Hospital Menonita de Guayama v. NLRB (a decision that is itself noteworthy). The note suggested that the Supreme Court’s abandonment of Chevron deference in Loper Bright Enterprises v. Raimando may have overlooked a point: Chevron had not been decided as an APA case, but was instead governed by the Clean Air Act’s framework for judicial review. But is that assessment accurate?
A perceptive reader directed me to another footnote—this one drawn from a law review article by Professor John Duffy—that indicates, at the time Chevron v. NRDC was resolved, the Court’s question was in fact governed by the APA. In FN19, Professor Duffy explains:
Some scholarship suggests that the Chevron case itself was not subject to section 706 because subsection (d) of section 307 of the Clean Air Act (42 U.S.C. § 7607(d)) contains an explicit exemption making section 706 inapplicable. See, e.g., Jack M. Beermann, Chevron Is a Rorschach Test Ink Blot, 32 J.L. &POL. 305, 307–08, 307 n.8 (2017) (stating that “[j]udicial review of EPA rules under the Clean Air Act is governed by 42 U.S.C. § 7607(d) and not by APA § 706”). The relevant provision, however, exempts from section 706 only EPA actions listed in section 307(d)(1), which at the relevant time included fourteen categories of EPA actions, none of which covered the EPA rulemaking being reviewed in the Chevron litigation. See 42 U.S.C. § 7607(d)(1)(A)–(N) (1982). In fact, at the time it was promulgating the final rule challenged in Chevron, the EPA itself analyzed the applicability of subsection (d) of section 307 and correctly determined that rules being promulgated were “not subject to Section 307(d).” Requirements for Preparation, Adoption and Submittal of Implementation Plans, 46 Fed. Reg. 50766, 50770 (Oct. 14, 1981) (codified at 40 C.F.R. pts. 51–52).
So perhaps Judge Randolph spoke too soon.
This is an intriguing dispute, but it does not carry much weight for the outcome in Loper Bright Enterprises. Judge Randolph’s point was raised by the petitioners (see, for example, the oral-argument transcript at p. 87), and the essence of judicial review under 42 U.S.C. § 7607 does not differ in any material way from that under APA § 706 (though there are meaningful procedural distinctions when it comes to rulemaking).
Even though Chevron did not cite the APA, the Chevron framework was generally understood to apply to APA cases, so whether that framework aligns with the APA mattered—an issue Judge Randolph himself acknowledges. The Supreme Court in Loper Bright rejected the Chevron methodology—specifically the premise that courts should defer to reasonable agency interpretations of ambiguous statutory language—not because of any disagreement with the EPA’s reading of the Clean Air Act or with the ultimate legality of the challenged EPA regulation.
