November 2016 Bar Bulletin
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November 2016 Bar Bulletin

Admin Law: The New 1L Adventure

By Marshall Morales

 

Administrative law, as a course of study in the first year of law school, focuses on the legislation and regulation in the modern administrative state. This topic covers statutory interpretation, agency rulemaking and preemption.

As the relative newcomer to the 1L curriculum, administrative law lacks some of the august and infamous cases from centuries ago; instead, administrative law is the 1L course most focused on the shifting nature of government organization in the 20th Century and our contemporary bureaucratic regime. This topic is salient in our current political climate, where the field of political candidates variously denigrates or reveres regulation — almost as if all regulations were fungible. Agencies are egregiously over- or under-active, depending on whom you ask.

The modern bureaucratic state emerged around the 1930s as a method for administering increasingly complex economic and social legal frameworks. This makes some intuitive sense: the New Deal required some fundamental shifts in the size and organization of government.

Wary of new executive agencies and the opportunity for overreach, Congress passed the Administrative Procedures Act in 1946. The next marked shift came in the 1970s with growth in the size and number of explicitly science-based agencies such as the EPA, the FDA and the like. By the end of the 1980s, the Supreme Court had established the principle that courts should defer to an agency interpretation where a statute did not directly resolve the issue and the agency interpretation was reasonable.

Jumping into statutory interpretation requires some tools, so we turn to canons — heuristic devices to help parse meanings. Llewellyn described canons as tools built around the conceit that “only one single correct meaning could exist” while within an adversarial system, which is why “there are two opposing canons on almost every point.” That is, one does not learn canons in order to read statutes correctly in an objective sense. One learns canons to support or refute a particular meaning in a pragmatic sense.

The upshot here is to always bring the useful canons to your side and prepare for the canons that help the other side. It is essential for lawyers to recall, as many 1Ls may forget, that canons of construction are not enshrined in common law or codified in legislation, and the application of a canon is more a framework for an argument rather than the argument itself. That is, invoking a canon needs a concomitant recitation of the reasoning behind the canon. For example, when one relies on the rule that ambiguities should be resolved in favor of Native American tribes, the reasoning should follow.

The usual 1L class covers Chevron, teaching students two steps: (1) if plain meaning answers the issue, apply the plain meaning; and (2) if the text is ambiguous, defer to the agency’s permissible construction of the statute.1 The upshot that may miss some 1Ls here is to argue in the alternative: Argue first that the text lacks ambiguity with support from the most favorable textual canons; then argue the most persuasive set of substantive canons available.

The rationale is that when the legislature delegates administration or enforcement of a statute to an agency, courts should defer to that agency’s interpretation of the statute. And when the agency has particular expertise in the area, the agency often has a more persuasive case for deference. That means bolstering or minimizing the technical expertise of the agency, depending on your side.

The canons can be pernicious vehicles, dressing ideological values in textual drapery. And the principle of judicial deference to agency expertise warrants some healthy skepticism: Once an agency is tasked with administering a statute, how far does its role extend? One useful series of cases to review in this field involves interpreting to which waters the Clean Water Act (CWA) applies. These cases deal with non-navigable waterways: wetlands, isolated ponds and ephemeral streams. And each provides a study in canons and Chevron deference at work.

The CWA generally restricts discharge of any pollutant into “navigable waters,” which is currently defined as “the waters of the United States, including the territorial seas.”2 Earlier case law had limited the definition of “navigable waters” to those waterways that were “navigable in fact” and could be used “as highways of commerce.”3 The CWA definition, as enacted by amendments passed in 1972, expanded the navigability restriction based on the CWA’s express goal “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”4

Both EPA and the Army Corps of Engineers administer the CWA, largely through a complex series of permitting programs. Both agencies initially issued differing interpretations of “navigable waters” due somewhat to their differing roles. EPA held the mantle of cleaning up rivers, while the Corps remains more involved in dredging to maintain commercial navigation channels.

The Corps included tributaries and interstate waters as well as intrastate lakes, rivers and streams that are used for recreation, fishing or industry.5 The Corps first limited its definition to waters subject to tidal ebb and flow and those that are susceptible for use for interstate or foreign commerce.6 But the Corps soon aligned with EPA’s definition, even adding “isolated lakes and wetlands.”7 This was fertile ground for dispute, given the impossibility of vessels navigating between isolated lakes.

When the Corps enjoined a property owner from filling wetlands located inland from a lake in Michigan, the Supreme Court noted that the Corps was in the precarious position of having to decide where the “waters of the United States” begin and end.8 Applying Chevron, the Court deferred to the Corps’ definition as reasonable because it had the technical expertise to determine that adjacent wetlands were essential components of the entire aquatic system.9

The Court used the canon of in pari materia, i.e., that various provisions of a statute should be read consistently, to rely on another section that referred to waters under federal administration as “including wetlands adjacent thereto.”10 The justification behind this canon is that reading the same word or phrase differently across a complex statute like the CWA would lead to unreliable application of the law (unless there was a clear indication to support a divergent meaning). The combination of technical justification from the Corps and textual support for including adjacent wetlands were sufficient to uphold the Corps’ actions.

In the late 1980s, the Corps and EPA adopted the Migratory Bird Rule, which interpreted the CWA to apply to all waters used by or that may be used by migratory birds crossing state lines.11 The Corps applied its CWA authority to seasonal ponds in an abandoned sand and gravel pit mine in Illinois that were used by migratory birds, but on appeal the Supreme Court invalidated the rule as an impermissible interpretation of the CWA.12


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