In an attempt to resolve a years-long dispute over the scope of the Clean Water Act’s1 (CWA) point source pollution permitting program, the Environmental Protection Agency published an “Interpretive Statement” that spanned seventeen pages of the Federal Register.2 But when the Supreme Court weighed in exactly one year later, it looked past the Statement, instead turning its focus to a single word in the statute: “from.”3 Last Term, in County of Maui v. Hawaii Wildlife Fund,4 the Supreme Court held that the CWA requires a permit when the addition of pollutants into navigable waters is the functional equivalent of direct discharges from a point source.5 In doing so, the Court declined to defer to the EPA’s interpretation of the Act’s relevant provisions,6 despite indications that it should have given Chevron7 deference closer consideration. The Court placed importance on the parties’ failure to invoke Chevron but did so in a way that perhaps offers an alternative to the binary, waiver-based conception of such scenarios that has so far prevailed in the academy and the lower federal courts.
The Lahaina Wastewater Reclamation Facility (LWRF), operated by the County of Maui, Hawai‘i (the County), filters and disinfects approximately four million gallons of sewage each day.8 The facility releases treated waste into four injection wells, which terminate in a groundwater aquifer.9 In 2012, after environmental assessments suggested that pollution from the facility was reaching the nearby Pacific Ocean,10 a group of nonprofit environmental organizations brought suit against the County.11 The plaintiffs alleged that, absent a National Pollutant Discharge Elimination System (NPDES) permit, LWRF’s pollutant emissions violated the CWA.12 After the district court denied the County’s motion to dismiss,13 researchers released the results of a tracer dye study that “conclusively demonstrate[d]” a hydrological connection between two LWRF injection wells and nearby coastal waters.14
In 2014, the district court granted the plaintiffs’ motion for partial summary judgment with respect to those two wells,15 finding that the County’s “addition of [a] pollutant to navigable waters from [a] point source”16 constituted a prohibited “discharge” under the CWA.17 Then–Chief Judge Mollway rejected the County’s contention that liability required finding that the groundwater comprised part of the “navigable waters.”18 Relying on Justice Scalia’s plurality opinion in Rapanos v. United States,19 the court also found that the groundwater need not itself be a point source in order to be a regulable conduit of pollution emanating from an initial point source.20 Given the tracer dye study evidence as well as the County’s admission,21 the court found it “undisputed” that pollutants from the LWRF were reaching the ocean via groundwater.22 Because the County did not have an NPDES permit, it had violated the CWA.23
The Ninth Circuit affirmed.24 Writing for the panel, Judge Dorothy Nelson25 echoed the district court’s finding that an emission need not be conveyed through a point source to be a regulable “discharge,”26 but otherwise set aside its standard, noting that liability should not be triggered by the discharge of pollutants into navigable water “regardless of how they get there.”27 Instead, Judge Nelson held liability was proper where pollutants are “fairly traceable from the point source . . . such that the discharge is the functional equivalent of a discharge into the navigable water” and “the pollutant levels reaching navigable water are more than de minimis.”28 As a result, the court found it unnecessary to rule on whether groundwater could constitute either a point source or navigable waters.29 The County’s petition for rehearing en banc was denied.30
The Supreme Court vacated and remanded.31 Writing for the Court, Justice Breyer32 considered — and rejected as “too extreme” — each of the four readings of the CWA suggested by the parties, amici, and lower courts.33 Justice Breyer found that the Ninth Circuit’s “fairly traceable” standard gave the EPA too much authority and could generate liability in “bizarre” and “surprising” circumstances.34 The Court noted that the CWA’s legislative history and the broader statutory scheme reflected Congress’s desire to leave the bulk of groundwater regulation to the states, a notion confirmed by the EPA’s “longstanding regulatory practice.”35 The Court similarly rejected Hawai‘i Wildlife Fund’s proposed addition of a proximate cause requirement, which did little to narrow the EPA’s authority.36
In contrast, Justice Breyer suggested that the County’s proposed standard — that a point source must be the “means-of-delivery” of pollution to navigable waters37 — was too narrow.38 The Court found that it created a “serious loophole,”39 allowing regulated parties to avoid permitting requirements by simply routing pollution through “at least some groundwater” before it reaches navigable waters.40 The Court likewise dismissed the interpretation put forward by the EPA41 — and embraced by the United States as amicus curiae42 — that all releases into groundwater should be exempt from permitting.43 Justice Breyer noted that no party had requested Chevron deference to this interpretation and found that it commanded little respect under Skidmore.44
The Court held instead that the CWA required a permit for point source pollution when there is a direct discharge or the functional equivalent of a direct discharge into navigable waters.45 According to Justice Breyer, the appropriate liability standard turned on the proper interpretation of the word “from” in the CWA’s statutory definition of “discharge of a pollutant”46: “[A]ny addition of any pollutant to navigable waters from any point source.”47 With Congress’s not-too-broad, but not-too-narrow statutory purpose supplying crucial context,48 the functional equivalency test offered the Goldilocks reading. To determine what constitutes a functional equivalent of a direct discharge, Justice Breyer set forth seven relevant factors, noting that the amount of time and distance over which pollution travels would be “the most important factors in most cases.”49 Justice Breyer suggested that the common law method and additional guidance from the EPA would ultimately “refine[]” the standard, mitigating the administrative difficulties inherent in operationalizing these factors as a balancing test.50
Justice Kavanaugh, who joined the majority opinion in full, authored a concurrence, in part to emphasize that the Rapanos plurality’s interpretation of the CWA as covering discharges that passed “through conveyances” directly supported the Court’s holding.51 Justice Kavanaugh also invoked the Rapanos plurality’s recognition that the CWA itself “does not establish a bright-line test” for what constitutes a discharge, asserting that the statutory language, rather than the Court’s opinion, was to blame for any resultant shortcomings of administrability.52
Justice Thomas dissented.53 Finding the majority’s fixation on the word “from” to be misplaced, Justice Thomas looked instead to the statutory word “addition.”54 Marshalling dictionary definitions, Justice Thomas suggested that the use of “addition” necessarily “exclude[d] anything other than a direct discharge,” as it implied the direct combination of one thing with another.55 Justice Thomas noted that any reduction in regulatory authority caused by his approach would be “consonant with the scope of Congress’s power” by tying that power more closely to the CWA’s presumptive Commerce Clause authority.56
Justice Alito dissented separately, contending that the Court’s functional equivalency reading contravened “clear statement” rules with respect to congressional actions that “impinge[] on the States’ traditional authority”57 or “assign to an agency decisions of vast ‘economic and political significance.’”58 Like Justice Thomas, Justice Alito would have held that a permit is required only for direct discharges,59 though Justice Alito’s definition of “direct discharge” would have included instances where a second point source serves as an intermediary between an initial point source and navigable waters.60 Justice Alito insisted that his interpretation would not create a loophole, as “point source” should be read broadly, encompassing many of the conveyances — including surface water — that can carry pollution to navigable waters.61
In declining to apply Chevron, the Court credited the parties’ and amici’s failure to explicitly seek such deference, seemingly wading — for the first time — into a debate over whether litigating positions should weigh on a court’s application of Chevron deference. Justice Breyer appeared to accord this silence dispositive weight, allowing it to overcome what would otherwise have been a strong case to apply Chevron. Yet, rather than examining this noninvocation through the lens of waiver — as lower courts and academics have — the County of Maui Court appeared to endorse a more freewheeling, standard-like approach. Whether or not he intended his analysis to be read as such, Justice Breyer offered a plausible middle-ground solution62 to the waiver debate, one faithful to United States v. Mead Corp.’s63 guiding principle of “tailor[ing] deference to variety.”64
Under the familiar two-step analysis laid out in Chevron, courts defer to reasonable agency interpretations of ambiguous statutory provisions.65 And under Chevron “Step Zero” — a threshold inquiry that precludes the application of Chevron in certain instances, most notably under the test laid out in Mead — courts probe whether Congress authorized an agency to act with the force of law in the relevant instance.66
Here, there was little question that the statutory provision at issue was ambiguous,67 and no question that the EPA had put forth an interpretation of the disputed provision.68 Yet the Court found Chevron inapplicable without so much as a discussion of the familiar Step-Zero factors.69 Instead, it merely noted that neither the parties nor the United States as amicus curiae had requested deference to the EPA’s interpretation.70 In doing so, the Court appeared to gesture at a concept that has come to be known as “Chevron waiver”71 — the notion that an agency interpretation is not entitled to Chevron deference when the relevant party does not request it.72
Chevron waiver seemed to be at issue here especially because if the Court had followed its traditional Step-Zero jurisprudence, it should have found the interpretation to be within Chevron’s domain. Although labeled an “Interpretive Statement,” the EPA’s action was the product of voluntary73 notice-and-comment procedures.74 While Mead does not categorically require that Chevron deference be given to the fruits of these procedures, it comes close enough that scholars have referred to notice-and-comment as a “safe harbor[]” under Mead.75 Indeed, the only other court to consider whether this Interpretive Statement carried the force of law under Mead found that it did.76
Although there were some non-waiver-related reasons to find Chevron inapplicable, the weight of the analysis cut in favor of applying the doctrine. Hawai‘i Wildlife Fund and its amici argued that interpretive statements are not entitled to Chevron deference under Mead.77 In Long Island Care at Home, Ltd. v. Coke,78 however, the Court rejected a similar argument, ultimately finding Chevron applicable because the interpretive rule at issue underwent “full notice-and-comment procedures.”79 Respondents might also have pointed to the Interpretive Statement’s failure to directly invoke Chevron80. Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 23 (D.C. Cir. 2019) (per curiam) (noting that a rule’s “invocation of Chevron by name . . . is powerful evidence of its intent to engage in an exercise of interpretive authority warranting Chevron treatment”), cert. denied, 140 S. Ct. 789 (2020). or to its disclaimer that the Agency would not seek to apply this interpretation in the Fourth and Ninth Circuits.81 But such arguments overlook the Statement’s invocation of National Cable Telecommunications Ass’n v. Brand X Internet Services,82 which held that an agency is bound by a prior judicial interpretation only where a court has deemed its reading to be the only legally permissible interpretation.83 The EPA invoked Brand X to argue that it could override prior contrary interpretations by circuit courts,84 a result only possible if the Agency’s interpretation is later awarded Chevron deference by another court,85 thus signaling the Agency’s intent to act with the force of law. Perhaps most tellingly, none of these Step-Zero arguments were addressed by the Court; it cited only the parties’ and amici’s86 silence in refusing to apply Chevron.87
As the Court’s sole stated rationale, this silence must have played a role in deciding the interpretation fell outside Chevron’s domain. At the same time, Justice Breyer’s treatment of this silence can hardly be considered a straightforward endorsement of the pro-waiver position.88 Parties’ silence on Chevron has become a live and contested issue in the circuits, with the D.C. Circuit flatly dismissing its importance in Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives,89 and the Tenth Circuit embracing it in Hays Medical Center v. Azar.90 In these circuits as well as in some academic discussions, the failure to invoke Chevron has been examined exclusively through the lens of waiver.91 Yet when presented with the opportunity to weigh in directly on this waiver conception, the Supreme Court instead chose to deny certiorari in Guedes.92 And here, though it accorded dispositive weight to the parties’ and amici’s silence, the Court did not so much as gesture at the ongoing debate in the lower courts and the academy.
The County of Maui Court’s engagement with the doctrine, then, seems to eschew the binary waiver framework altogether. Its seemingly ad hoc handling of the noninvocation suggests an alternative approach: treating an agency’s silence with respect to Chevron as another factor to cast into the Step-Zero equation. This standard-oriented conception aligns with Justice Breyer’s preferred brand of deference analysis, which combines factors traditionally associated only with Mead, Chevron, or Skidmore together into a single inquiry of “whether Congress would want a reviewing court to defer to the agency interpretation at issue.”93 Justice Breyer significantly expanded the universe of relevant deference factors at Step Zero in Barnhart v. Walton 94 and again in Long Island Care at Home,95 “muddying the relative clarity” of the Court’s Step-Zero jurisprudence.96 The idea that the failure to request deference should be relevant, but not necessarily dispositive in all cases, represents another extension of this capacious understanding of Step Zero and of the deference inquiry more broadly.97
While some have suggested that consideration of the government’s failure to request deference would fit uncomfortably into Step Zero,98 this critique seems to stem from an incomplete understanding of the universe of contexts in which a “waiver” might arise. This argument appears to assume that an agency would “waive deference” only when it seeks to reverse existing policy.99 Here, however, there was no indication the government sought to reverse its policy; the interpretation at issue was promulgated under the current administration, and the government’s briefing repeatedly parroted the Interpretive Statement’s analysis.100 This suggests a very different motivation — perhaps a purposeful abdication of Chevron’s grant of the power to make “policy choices in the interpretation of Congress’s handiwork.”101 While this consideration may not comport precisely with the traditional Step-Zero inquiry, it certainly speaks to one of the underlying justifications of Chevron itself — the superior political accountability of the executive branch102 — and is thus suitable for consideration at this threshold stage.
Although the Court’s engagement with the parties’ silence with respect to Chevron was brief, it may prove consequential. The Court’s treatment of non-invocation of Chevron outside the waiver context offers a way forward for courts considering the government’s failure to seek deference at Step Zero, rather than as a siloed waiver question. The County of Maui Court’s approach offers a flexible reconceptualization of the doctrine that could prove especially useful if the government continues to decline to seek Chevron deference in more varied contexts.