West Virginia v. EPA: Getting to Actual Delegation
Both the Chevron doctrine and West Virginia v. EPA are based on ideas about the delegation of interpretive authority from Congress to administrative agencies. Chevron introduced the idea of “implicit” delegations, and the doctrine spawned by it eventually held that any ambiguity in an agency statute is an implicit delegation. West Virginia is effectively an unacknowledged carveout. Without the majority’s mentioning Chevron, the case posits that when a “major question” is involved, a delegation must take the form of a clear statement; presumably, only express delegations or something close to this will count.
Both positions are extreme. The idea that any ambiguity is a delegation transfers too much power to the administrative state. The view that only express delegations will do for major questions concentrates too much power in reviewing courts.
The better position, as suggested in my recent book, The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State (Harvard University Press 2022), is that courts should condition any strong form of deference to agency interpretations on a finding that Congress has actually delegated authority to the agency to resolve the issue. This means more than finding ambiguity; courts must carefully interpret the statute and conclude that Congress left a gap for the agency to fill.
But it does not mean the delegation must be express; the delegation can be implicit but actual. For example, when Congress delegated authority to the EPA to promulgate emissions standards for new stationary sources (by the agency’s determining the “best system of emissions reduction”), this was an implicit but actual delegation to the agency to interpret the meaning of “best system” for that purpose (Section 111(B)(1)(B) of the Clean Air Act).
There are multiple reinforcing reasons for requiring courts to find an actual delegation before deferring in a strong sense to an agency’s interpretations. This was the universal assumption before Chevron. See, e.g., Social Security Bd. v. Nierotko, 327 U.S. 358, 369 (1946) (“An agency may not finally decide the limits of its statutory power. That is a judicial function.”). It is required by the Administrative Procedure Act. See 5 U.S. C. § 706(2)(C) (authorizin
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