Eric L. Klein Quoted in Massachusetts Lawyers Weekly on Future of Chevron Doctrine

Massachusetts Lawyers Weekly

On January 17, the U.S. Supreme Court heard arguments for Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. Massachusetts Lawyers Weekly spoke with Principal Eric Klein (Boston) on the arguments and their potential to downsize or overrule the Chevron doctrine, which requires federal courts to defer to administrative agencies’ interpretations of their governing statutes in cases where the text of the ruling statutes is ambiguous. Eric provided his forecast for the Chevron doctrine in, "Lawyers expect rollback of ‘Chevron’ — one way or another."

Eric predicted that "the court is going to chart a middle path both because [Chevron] is a doctrine where a middle path makes a lot of sense and also because a very similar issue has already arisen in [Kisor] on a related doctrine where the court charted a middle path.” In Kisor v. Wilkie, the Supreme Court modified but did not overrule a companion to the Chevron doctrine – the Auer doctrine – that deals with agency interpretation of regulations instead of statutes.  Eric sees this result as likely to repeat for Chevron. He explained that in Kisor, the Supreme Court “basically said that it was not doing away Auer deference, only that it was limiting it and putting more guardrails in place to make the application of Auer more rare and more difficult."  He noted that Justice Barrett, in oral argument on January 17, spoke of “Kizoring” the Chevron doctrine, and predicted that a majority of justices will coalesce around that idea. 

In the article, Eric added that Chevron is neutral, not policy-specific, and can benefit either industry or environmentalist interests, depending on the administration in office and the goals of the agency using its Chevron power.  He said, "if EPA is more empowered by a more powerful Chevron doctrine, then that benefits a Biden EPA when it wants to pursue environmentalist goals. It would benefit a Trump EPA when it wanted to cut back on environmentalist goals." As an example, he pointed out that the Natural Resources Defense Council now defends the Chevron doctrine, despite originally being the party on the losing side of the Chevron case itself. 

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