As we’ve covered extensively on this blog, the administrative state responsible for implementing environmental, health, and safety policy in the United States is in flux. A few months ago in Kisor v. Wilkie the US Supreme Court upheld but significantly narrowed Auer deference. Auer instructs that courts must defer to an agency’s construction of its own regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation.”
After Kisor though, lower courts reviewing an agency’s interpretation of its own regulations should only defer if there is a genuine ambiguity, the regulatory guidance comes from the appropriate source, and the rationale for the agency’s interpretation is not litigation driven. The Kisor Court also instructed that interpretive issues that fall into a “judge’s bailiwick” are not entitled to deference. Judge Gorsuch concurring in the judgment predicted that Kisor’s guideposts would leave the Auer doctrine “zombified.” Two initial decisions applying Kisor reflect Kisor’s tension. Namely, while courts scrutinize agency interpretations, Auer deference remains intact.