Kisor’s Chaos: Conflicting Meanings of the Clean Air Act’s “Applicable Requirements” in the Fifth and Tenth Circuits

Authors

Marissa Corry, Southern Methodist University, Dedman School of LawFollow

Abstract

“Although [the administrative state] [is] . . . unrecognized by the Constitution, it has become the government’s primary mode of controlling Americans, and it increasingly imposes profound restrictions on their liberty.” As this statement suggests, administrative agencies wield immense power and influence over the everyday lives of American citizens. In recent years, concern about the extensive power of the administrative state has led courts, policymakers, and the public to advocate for enhanced constraints on administrative agencies.

One such constraint is allowing courts to determine the meaning of a statute or regulation instead of deferring to an agency’s interpretation of such statute or regulation. But this constraint comes at a cost. By making it more difficult for agencies to receive deference, courts create more uncertainty regarding the meaning of a particular statute or regulation. Without clear guidance on the meaning of the law, American citizens will struggle to comply with the law. In effect, the amount of power wielded by administrative agencies entails a trade-off between making administrative agencies more accountable to the public and ensuring the public understands what the law means.

This Comment discusses a recent circuit split between the U.S. Courts of Appeals for the Fifth and Tenth Circuits over how to interpret the Environmental Protection Agency’s regulation defining the “applicable requirements” for obtaining a Title V permit under the Clean Air Act. This conflict demonstrates the confusion and inconsistency plaguing lower courts over the application of the different standards of agency deference. As a result, the meaning of a particular statute or regulation can vary from jurisdiction to jurisdiction. This Comment proposes a solution for reworking the regulatory deference framework that will promote clarity and uniformity in the interpretation of statutes and regulations. The proposed solution suggests that the Supreme Court should restore Auer to its “plainly erroneous or inconsistent with the regulation” standard and add a second step when an agency announces a new interpretation of a regulation that conflicts with its prior interpretation. Under this second step, courts would take a “hard look” at the agency’s new interpretation to see if the agency provided a reasoned explanation for its changed position.4 This approach would give agencies the flexibility to update regulations in response to changed circumstances while also providing courts with the oversight necessary to ensure an agency’s proposed interpretation aligns with “what the law is.”

Recommended Citation

Marissa Corry, Kisor’s Chaos: Conflicting Meanings of the Clean Air Act’s “Applicable Requirements” in the Fifth and Tenth Circuits, 74 SMU L. Rev. 749 (2021)