David Doniger "lost" the Chevron case - which he argued for the Natural Resources Defense Council. NRDC was attacking the conservative " strategy
...called the “bubble” concept, for big new industrial projects to evade those standards. The trick was to redefine “stationary source” to mean a “combination” of buildings, structures, facilities, or installations – in other words, as a whole industrial plant. If a company paired building a large new furnace or boiler with retirement of some old equipment so that the whole plant’s pollution didn’t increase, then the new project would escape the stringent pollution controls the statute intended new industrial development to install.
EPA's attention to an entire power production complex, commanding , as challenged in West Virginia, a net reduction in pollution was rejected. The whole complex strategy worked: the plant was a bubble, so one could make changes that increased air pollution so long as the total plant's output of greenhouse gases did not increase. In Chevron that ploy worked. Defer to the agency's reasonable plant to hold pollutants to current levels, not be compelled to reduce pollutants as the Clean Air Act contemplated.
But last year the Court employed its new sword - the "major questions doctrine" when the EPA proposed that the statutory mandate to find “best system of emission reduction” would best be served by "a shift in generation from existing coal-fired power plants, which would make less power, to natural-gas-fired plants, which would make more." As Blake Emerson explains in Slate - the court has a new tool - the "anti-novelty principle". It now demands that Congress, presciently, speak "clearly" about what may be needed in the future to acheive its broadly stated goals. So its back to the drawing boards - a judicially mandated legislative rewrite of epochal legilsation like the Clean Air Act.
An essay by John McGinnis, “The Rise and Fall of Chevron,” recently caught my eye. McGinnis, now a professor at Northwestern, writes that as a summer legal intern he assisted Deputy Solicitor General Paul Bator in writing the government’s brief in Chevron U.S.A. v. Natural Resources Defense Council back in 1983. Though we’ve never met, I felt a certain kinship, since I briefed and argued the case for NRDC opposite Bator 40 years ago tomorrow.
It turns out, however, that as the Supreme Court weighs reversing or changing Chevron, McGinnis and I disagree as much now as we did then.
McGinnis’s essay implies that Chevron deference was a corrective to liberal judicial activism in the 1970s. Actually, as I’ll show, the proximate cause of the Chevron case was conservative judicial activism.
McGinnis says it is safe to reverse Chevron now because a judiciary committed to “textualism” and “originalism” can be trusted to demonstrate modesty and eschew activism. Given the aggressive recent behavior of purportedly textualist judges and justices, that’s rather hard to accept.
Initially, there was broad agreement from conservative judges, scholars, and advocates – including Kenneth Starr, Lawrence Silberman, and Antonin Scalia – that Chevron represented a salutary neutral principle for judicial review of regulatory decisions. But today the Federalist Society and the many legal foundations backed by funders hostile to almost all forms of government regulation have reshaped their judicial philosophy. Now they see reversing Chevron as key weapon in their battle to enfeeble “the administrative state.”
Let me elaborate these points.
A Look Back at Chevron’s Origins
McGinnis is correct that the 1970s were a period of judicial activism and inventiveness in the rapidly evolving field of administrative law, especially on the D.C. Circuit. But I disagree with his implication that ‘70s-era activism was generally tilted in a liberal direction. In the cases that led to Chevron, it was conservative activism that got the D.C. Circuit into trouble.
To see that, we need to review the three D.C. Circuit cases leading up to Chevron. All three interpreted the same statutory term, “stationary source,” which was used in three different parts of the Clean Air Act. The first decision would pass any textualist’s test today. The second one is where the activist turn was taken – but by a conservative judge. The third one – the case actually reviewed in Chevron – sought merely to apply a policy-driven distinction already drawn by the second decision.
“Stationary source” is the thing to which the Clean Air Act’s pollution control requirements apply. The 1970 Act defined that term as “any building, structure, facility, or installation” that emits air pollution. For members of the public and Members of Congress alike, the plain meaning – you might now say the “original public meaning” in 1970 – of those terms was clear: they meant the discrete items of industrial equipment, large or small, that emit pollution – things like boilers, blast furnaces, petroleum refining equipment, storage tanks, etc.
It was only later that clever lawyers came up with a strategy, called the “bubble” concept, for big new industrial projects to evade those standards. The trick was to redefine “stationary source” to mean a “combination” of buildings, structures, facilities, or installations – in other words, as a whole industrial plant. If a company paired building a large new furnace or boiler with retirement of some old equipment so that the whole plant’s pollution didn’t increase, then the new project would escape the stringent pollution controls the statute intended new industrial development to install.
In ASARCO v. EPA, a D.C. Circuit panel led by Judge J. Skelly Wright (a liberal) made short but “textualist” work of this argument. “The regulations plainly indicate that EPA has attempted to change the basic unit to which the [New Source Performance Standards] apply from a single building, structure, facility, or installation—the unit prescribed in the statute—to a combination of such units. The agency has no authority to rewrite the statute in this fashion.”
The wrong turn came in the next case, Alabama Power Co. v. Costle. Judge Malcolm Wilkey (a conservative) addressed the source definition in the permitting program Congress adopted in 1977 amendments to protect the still-clean areas of the country, called “prevention of significant deterioration” (PSD).
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