In an attempt to resolve a years-long dispute over the scope of the Clean Water Act’s1×1. 33 U.S.C. § 1251–1388. (CWA) point source pollution permitting program, the Environmental Protection Agency published an “Interpretive Statement” that spanned seventeen pages of the Federal Register.2×2. Interpretive Statement on the Releases of Pollutants from a Point Source to Groundwater, 84 Fed. Reg. 16,810. (Apr. 23, 2019) (to be codified at 40 C.F.R. pt. 122) [hereinafter Interpretive Statement]. 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.”3×3. See County of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462, 1470 (2020) (“The linguistic question here concerns the statutory word ‘from.’”). Last Term, in County of Maui v. Hawaii Wildlife Fund,4×4. 140 S. Ct. 1462. 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.5×5. Id. at 1468. In doing so, the Court declined to defer to the EPA’s interpretation of the Act’s relevant provisions,6×6. Id. at 1474. despite indications that it should have given Chevron7×7. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). 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.8×8. Haw. Wildlife Fund v. County of Maui, 24 F. Supp. 3d 980, 983 (D. Haw. 2014). The facility releases treated waste into four injection wells, which terminate in a groundwater aquifer.9×9. Id. at 983–84. An aquifer is a water-bearing layer of permeable rock. Aquifer, Merriam-Webster, https://www.merriam-webster.com/dictionary/aquifer [https://perma.cc/5VW5-SU8N]. In 2012, after environmental assessments suggested that pollution from the facility was reaching the nearby Pacific Ocean,10×10. County of Maui, 140 S. Ct. at 984. The County had known since the facility was designed in 1973 that the wastewater it generated would reach the ocean. Haw. Wildlife Fund v. County of Maui, 886 F.3d 737, 742 (9th Cir. 2018). a group of nonprofit environmental organizations brought suit against the County.11×11. Complaint at 2, County of Maui, 24 F. Supp. 3d 980 (D. Haw. 2014) (No. 12-cv-00198). The plaintiffs alleged that, absent a National Pollutant Discharge Elimination System (NPDES) permit, LWRF’s pollutant emissions violated the CWA.12×12. Id. After the district court denied the County’s motion to dismiss,13×13. Haw. Wildlife Fund v. County of Maui, No. 12-00198, 2012 WL 3263093, at *1 (D. Haw. Aug. 8, 2012). 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.14×14. Craig R. Glenn et al., Lahaina Groundwater Tracer Study, at ES-3 (2013).
In 2014, the district court granted the plaintiffs’ motion for partial summary judgment with respect to those two wells,15×15. County of Maui, 24 F. Supp. at 983. finding that the County’s “addition of [a] pollutant to navigable waters from [a] point source”16×16. Id. at 986 (quoting 33 U.S.C. § 1362(12)). constituted a prohibited “discharge” under the CWA.17×17. Id. at 1000. Then–Chief Judge Mollway rejected the County’s contention that liability required finding that the groundwater comprised part of the “navigable waters.”18×18. Id. at 993–94. The court did, however, hold in the alternative that the groundwater could be considered navigable waters, as it had a hydrologic connection to the ocean, id. at 1001 (citing N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 1000 (9th Cir. 2007)), and “significantly affect[ed] the physical, chemical and biological integrity of the receiving waters,” id. at 1004. See id. at 994. Relying on Justice Scalia’s plurality opinion in Rapanos v. United States,19×19. 547 U.S. 715, 743 (2006) (plurality opinion). 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.20×20. County of Maui, 24 F. Supp. 3d at 999 (quoting Rapanos, 547 U.S. at 744 (plurality opinion)). The court noted that in this case, the groundwater did, in fact, meet the point source criteria. Id. (“Any conveyance that transmits such a high proportion of a pollutant from one place to another is consistent with being ‘confined and discrete’ . . . .” (quoting 33 U.S.C. § 1362(14))). Given the tracer dye study evidence as well as the County’s admission,21×21. Id. at 998. the court found it “undisputed” that pollutants from the LWRF were reaching the ocean via groundwater.22×22. Id. at 1000. Because the County did not have an NPDES permit, it had violated the CWA.23×23. Id. In 2015, the district court granted the plaintiffs’ motion for partial summary judgment with respect to the other two wells at the LWRF. Haw. Wildlife Fund v. County of Maui, No. 12-00198, 2015 WL 328227, at *3, *7 (D. Haw. Jan. 23, 2015). The district court also denied the County’s motion for summary judgment, finding no due process violation where the CWA itself provided the requisite notice “by listing the elements of a violation” and the plaintiffs had given notice prior to filing suit. Haw. Wildlife Fund v. County of Maui, No. 12-00198, 2015 WL 3903918, at *4–5 (D. Haw. June 25, 2015). The Ninth Circuit affirmed on this issue. Haw. Wildlife Fund v. County of Maui, 886 F.3d 737, 752 (9th Cir. 2018).
The Ninth Circuit affirmed.24×24. Haw. Wildlife Fund v. County of Maui, 881 F.3d 754, 758 (9th Cir.), amended and superseded on denial of reh’g en banc, 886 F.3d 737. Writing for the panel, Judge Dorothy Nelson25×25. Judge Nelson was joined by Judges Schroeder and McKeown. echoed the district court’s finding that an emission need not be conveyed through a point source to be a regulable “discharge,”26×26. See County of Maui, 886 F.3d at 749. 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.”27×27. Id. (quoting County of Maui, 24 F. Supp. 3d at 1000 (emphasis added)). 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.”28×28. Id. As a result, the court found it unnecessary to rule on whether groundwater could constitute either a point source or navigable waters.29×29. See id. at 746 n.2, 748. The County’s petition for rehearing en banc was denied.30×30. Id. at 741. In denying this petition, the Ninth Circuit amended its original opinion. See id.
The Supreme Court vacated and remanded.31×31. County of Maui, 140 S. Ct. at 1478. Commentators’ analyses suggest that despite the vacatur, the Court’s newly announced standard should be favorable to respondents on remand. See, e.g., Adam Liptak, Clean Water Act Covers Groundwater Discharges, Supreme Court Rules, N.Y. Times (Apr. 23, 2020), https://nyti.ms/2KtQO4G [https://perma.cc/T7ZZ-8KZA] (calling the decision “on balance a victory for environmental groups”); Lila Fujimoto, Supreme Court Decides Against County, Maui News (Apr. 24, 2020), https://www.mauinews.com/news/local-news/2020/04/supreme-court-decides-against-county [https://perma.cc/V6HS-WPDH]. Writing for the Court, Justice Breyer32×32. Justice Breyer was joined by Chief Justice Roberts and Justices Ginsburg, Sotomayor, Kagan, and Kavanaugh. considered — and rejected as “too extreme” — each of the four readings of the CWA suggested by the parties, amici, and lower courts.33×33. County of Maui, 140 S. Ct. at 1476. The Court also considered and rejected the standards put forward by the dissenting Justices. See id. at 1475–76. 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.34×34. Id. at 1471. 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.”35×35. Id. at 1472; see id. at 1471–72. 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.36×36. Id. at 1470–71.
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 waters37×37. Id. at 1473. — was too narrow.38×38. See id. The Court found that it created a “serious loophole,”39×39. Id. at 1474. allowing regulated parties to avoid permitting requirements by simply routing pollution through “at least some groundwater” before it reaches navigable waters.40×40. Id. at 1473; see id. at 1474. The Court likewise dismissed the interpretation put forward by the EPA41×41. The EPA published a notice initiating this Interpretive Statement shortly after the Ninth Circuit’s decision in this case. See Interpretive Statement, supra note 2. — and embraced by the United States as amicus curiae42×42. See Brief for the United States as Amicus Curiae Supporting Petitioner at 6–8, 19, 33–35, County of Maui, 140 S. Ct. 1462 (2020) (No. 18-260). The United States appeared as amicus curiae for Hawai‘i Wildlife Fund in the Ninth Circuit before switching sides. See Brief for the United States as Amicus Curiae in Support of Plaintiffs-Appellees, Haw. Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018) (No. 15-17447). — that all releases into groundwater should be exempt from permitting.43×43. County of Maui, 140 S. Ct. at 1474–75. Justice Breyer noted that no party had requested Chevron deference to this interpretation and found that it commanded little respect under Skidmore.44×44. Skidmore v. Swift & Co., 323 U.S. 134 (1944); County of Maui, 140 S. Ct. at 1474 (citing Skidmore, 323 U.S. at 139–40). The Court labeled the interpretation “neither persuasive nor reasonable,” id., a phrasing that evokes both the reasonableness standard of Chevron, 467 U.S. 837, 844 (1984), and the persuasiveness standard of Skidmore, 323 U.S. at 140.
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.45×45. County of Maui, 140 S. Ct. at 1468. 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”46×46. See id. at 1469–70. : “[A]ny addition of any pollutant to navigable waters from any point source.”47×47. 33 U.S.C. § 1362(12)(A) (emphasis added). With Congress’s not-too-broad, but not-too-narrow statutory purpose supplying crucial context,48×48. Justice Breyer noted repeatedly that the word “from” — though broad in scope — necessarily takes its meaning from its context. See County of Maui, 140 S. Ct. at 1470–71, 1473–75. 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.”49×49. Id. at 1477; see id. at 1476–77. The other five factors were: the material through which the pollution travels; the extent of dilution or change in the pollution as it travels; the proportion of emitted pollution that reaches navigable waters; the manner in which the pollution enters the navigable waters; and the degree to which the pollution maintains its identity. Id. (noting these were “just some of the factors that may prove relevant,” id. at 1476). 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.50×50. See id. at 1477.
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.51×51. Id. at 1478 (Kavanaugh, J., concurring) (quoting Rapanos v. United States, 547 U.S. 715, 743 (2006) (plurality opinion)). 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.52×52. Id. Justice Kavanaugh also deflected Justice Thomas’s critique that the Court had failed to “commit” to “which factors are the most important,” id. (quoting id. at 1481 (Thomas, J., dissenting)), reiterating the Court’s identification of time and distance as “the most important factors in most cases,” id. (quoting id. at 1477 (majority opinion)).
Justice Thomas dissented.53×53. Id. at 1479 (Thomas, J., dissenting). Justice Thomas was joined by Justice Gorsuch. Finding the majority’s fixation on the word “from” to be misplaced, Justice Thomas looked instead to the statutory word “addition.”54×54. Id. 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.55×55. Id. 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.56×56. Id. at 1481.
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”57×57. Id. at 1490 (Alito, J., dissenting). or “assign to an agency decisions of vast ‘economic and political significance.’”58×58. Id. (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). Like Justice Thomas, Justice Alito would have held that a permit is required only for direct discharges,59×59. Id. at 1486. 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.60×60. Compare id. at 1487 (“If [the discharge of a pipe qualifying as a point source] goes directly into another point source and that point source discharges directly into navigable waters, there is a direct discharge . . . and a permit is needed.”), with id. at 1480 (Thomas, J., dissenting) (“When pollutants are released from a point source to another point source . . .[, o]ne would not naturally say that the pollutants are added to the navigable waters from the original point source.”). 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.61×61. Id. at 1487–88 (Alito, J., dissenting). Justice Alito also emphasized that states maintained the authority to regulate discharges from non-point sources. Id. at 1488.
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 solution62×62. Other commentators have theorized a different kind of “middle ground” approach to waiver. See James Durling & E. Garrett West, Essay, May Chevron Be Waived?, 71 Stan. L. Rev. Online 183, 195–96 (2019) (“Courts should be less likely to find arguments waived as cross-system harms increase, but more likely to do so as the adjudicative costs for the courts increase.” Id. at 196.). to the waiver debate, one faithful to United States v. Mead Corp.’s63×63. 533 U.S. 218 (2001). guiding principle of “tailor[ing] deference to variety.”64×64. Id. at 236.
Under the familiar two-step analysis laid out in Chevron, courts defer to reasonable agency interpretations of ambiguous statutory provisions.65×65. See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). 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.66×66. Mead, 533 U.S. at 227. Without such an authorization, agency interpretations should be granted a lesser degree of deference under Skidmore. Id. at 235.
Here, there was little question that the statutory provision at issue was ambiguous,67×67. See County of Maui, 140 S. Ct. at 1478 (Kavanaugh, J., concurring) (“The source of vagueness is Congress’ statutory text . . . .”). and no question that the EPA had put forth an interpretation of the disputed provision.68×68. See id. at 1474 (majority opinion). Yet the Court found Chevron inapplicable without so much as a discussion of the familiar Step-Zero factors.69×69. See id. Instead, it merely noted that neither the parties nor the United States as amicus curiae had requested deference to the EPA’s interpretation.70×70. See id. Justice Thomas treated this element of the deference analysis similarly in his dissent. See id. at 1482 (Thomas, J., dissenting). In doing so, the Court appeared to gesture at a concept that has come to be known as “Chevron waiver”71×71. Although the parties’ and amici’s behavior here — silence with respect to Chevron — might logically be considered forfeiture, rather than waiver, the literature has come to refer to both non-invocation and intentional abandonment of Chevron as “Chevron waiver.” See Durling & West, supra note Error! Bookmark not defined., at 183 n.2 (using “‘waiver’ as a shorthand for both concepts”). — the notion that an agency interpretation is not entitled to Chevron deference when the relevant party does not request it.72×72. While it is not uncommon for the Court to fail to discuss Chevron, it is unheard of for the Court to explicitly cite the parties’ silence in doing so. See Kristin E. Hickman, Justice Gorsuch and Waiving Chevron, Yale J. on Reg.: Notice & Comment (Mar. 3, 2020), https://www.yalejreg.com/nc/justice-gorsuch-and-waiving-chevron [https://perma.cc/667P-SCHS].
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 voluntary73×73. See 5 U.S.C. § 553(b)(3)(A) (exempting “interpretative rules” from notice-and-comment requirements). notice-and-comment procedures.74×74. The EPA provided notice, received comments, responded to those comments at length, and published its Interpretive Statement in the Federal Register. See Interpretive Statement, supra note 2; see also 5 U.S.C. § 553 (listing general procedural requirements for rulemaking). 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.75×75. See Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 Vand. L. Rev. 1443, 1468 (2005) (quoting United States v. Mead Corp., 533 U.S. 218, 246 (2001) (Scalia, J., dissenting)); David L. Franklin, Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut, 120 Yale L.J. 276, 307 n.160 (2010); Adrian Vermeule, Introduction: Mead in the Trenches, 71 Geo. Wash. L. Rev. 347, 350 (2003). But see Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 1004 (2005) (Breyer, J., concurring) (contending that notice-and-comment rulemaking is “neither a necessary nor a sufficient condition for according Chevron deference”); Thomas W. Merrill, The Mead Doctrine: Rules and Standards, Meta-Rules and Meta-Standards, 54 Admin. L. Rev. 807, 814 (2002) (“I do not think the [Mead] Court was saying . . . that if an agency adopts notice-and-comment . . . procedures on its own authority, its interpretation is presumptively entitled to Chevron deference.”). Indeed, the only other court to consider whether this Interpretive Statement carried the force of law under Mead found that it did.76×76. See Conservation L. Found., Inc. v. Longwood Venues & Destinations, Inc., 422 F. Supp. 3d 435, 453 (D. Mass. 2019), appeal docketed, No. 20-1024 (1st Cir. Jan. 7, 2020) (concluding that “the Interpretive Statement passes Chevron Step Zero”). The court went on to defer to the EPA’s interpretation under Chevron. Id. at 458.
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.77×77. Brief for Respondents at 42, County of Maui, 140 S. Ct. 1462 (2020) (No. 18-260); Brief for Amici Curiae Law Professors in Support of Respondents at 29, County of Maui, 140 S. Ct. 1462 (2020) (No. 18-260). In Long Island Care at Home, Ltd. v. Coke,78×78. 551 U.S. 158 (2007). however, the Court rejected a similar argument, ultimately finding Chevron applicable because the interpretive rule at issue underwent “full notice-and-comment procedures.”79×79. Id. at 173; see Longwood Venues, 422 F. Supp. 3d at 452–53 (relying on this point in finding the Interpretive Statement passed Step Zero). Respondents might also have pointed to the Interpretive Statement’s failure to directly invoke Chevron80×80. Cf. 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.81×81. Interpretive Statement, supra note 2, at 16,812. But such arguments overlook the Statement’s invocation of National Cable Telecommunications Ass’n v. Brand X Internet Services,82×82. 545 U.S. 967 (2005). 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.83×83. Id. at 982. The EPA invoked Brand X to argue that it could override prior contrary interpretations by circuit courts,84×84. Interpretive Statement, supra note 2, at 16,812 n.1. a result only possible if the Agency’s interpretation is later awarded Chevron deference by another court,85×85. See Brand X, 545 U.S. at 982. 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’s86×86. One commentator has argued that the case for waiver is weaker where an agency’s non-invocation of Chevron comes when it appears as amicus curiae. See Jeremy D. Rozansky, Comment, Waiving Chevron, 85 U. Chi. L. Rev. 1927, 1940 n.79 (2018). This argument is premised on assumptions that “one of the parties asserts that Chevron deference is merited” and that “[a]mici generally have a more attenuated stake.” Id. Here, however, no party sought deference and the Agency seemed to have a clear stake in the outcome, see Interpretive Statement, supra note 2, at 16,812 (noting that the Interpretive Statement was issued to “provide necessary clarity” given the “split in the federal circuit courts”), suggesting that waiver was at play in this instance despite the Agency’s status as amicus curiae rather than as a party. silence in refusing to apply Chevron.87×87. See County of Maui, 140 S. Ct. at 1474. Of course, the Court did suggest in its Skidmore analysis that the Agency’s interpretation was “neither persuasive nor reasonable,” id., suggesting that it might have rejected the EPA’s interpretation under Chevron Step Two.
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.88×88. At least one commentator, however, thought that the Court had straightforwardly invoked Chevron waiver. See David Zaring (@ZaringDavid), Twitter (Apr. 23, 2020, 10:10 AM), https://twitter.com/ZaringDavid/status/1253355642938707974 [https://perma.cc/94KL-Y7FD] (“[County of Maui] means that Chevron deference – a standard of judicial review – can be waived if the agency fails to ask for it.”); see also Aaron L. Nielsen, D.C. Circuit Review — Reviewed: More Chevron Waiver, Yale J. on Reg.: Notice & Comment (Apr. 24, 2020), https://www.yalejreg.com/nc/d-c-circuit-review-reviewed-more-chevron-waiver/ [https://perma.cc/4SUM-8GS8]. 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,89×89. 920 F.3d 1, 23 (D.C. Cir. 2019) (per curiam), cert. denied, 140 S. Ct. 789 (2020). and the Tenth Circuit embracing it in Hays Medical Center v. Azar.90×90. 956 F.3d 1247, 1264 n.18 (10th Cir. 2020). In these circuits as well as in some academic discussions, the failure to invoke Chevron has been examined exclusively through the lens of waiver.91×91. See id.; Guedes, 920 F.3d at 23; Durling & West, supra note Error! Bookmark not defined., at 195; see also Rozansky, supra note Error! Bookmark not defined., at 1959 (arguing for “prohibition” of waiver because it “undercuts the goods provided by rigorous ex ante agency procedures”); Note, Waiving Chevron Deference, 132 Harv. L. Rev. 1520, 1520 (2019) (arguing waiver is “contrary to both law and sensible policy”). Yet when presented with the opportunity to weigh in directly on this waiver conception, the Supreme Court instead chose to deny certiorari in Guedes.92×92. 140 S. Ct. 789, 789 (2020). Justice Gorsuch concurred in the denial of the petition, but disapproved of the D.C. Circuit’s Chevron waiver analysis. Id. at 790 (Gorsuch, J., statement respecting the denial of certiorari) (describing the court’s analysis as “plac[ing] an uninvited thumb on the scale in favor of the government”). 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.”93×93. Kristin E. Hickman, The Three Phases of Mead, 83 Fordham L. Rev. 527, 541 (2014); see id. at 541–44. Justice Breyer significantly expanded the universe of relevant deference factors at Step Zero in Barnhart v. Walton 94×94. See 535 U.S. 212, 222 (2002). and again in Long Island Care at Home,95×95. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 173–74 (2007). “muddying the relative clarity” of the Court’s Step-Zero jurisprudence.96×96. Hickman, supra note Error! Bookmark not defined., at 536. 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.97×97. But see Kristin E. Hickman, County of Maui & Chevron Waiver — Let’s Not Get Carried Away, Yale J. on Reg.: Notice & Comment (Apr. 27, 2020), [https://www.yalejreg.com/nc/county-of-maui-chevron-waiver-lets-not-get-carried-away [https://perma.cc/VVC2-TVMD] (cautioning against reading too much into the Court’s approach, as “the Justices may disagree over how these standards work . . . but still agree to accept or reject an agency’s particular statutory interpretation”).
While some have suggested that consideration of the government’s failure to request deference would fit uncomfortably into Step Zero,98×98. See Rozansky, supra note Error! Bookmark not defined., at 1956–57. 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.99×99. See id. at 1944; see also Durling & West, supra note Error! Bookmark not defined., at 193. 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.100×100. See Brief for the United States as Amicus Curiae Supporting Petitioner, supra note Error! Bookmark not defined., at 8, 19, 24, 33. The context of the “waiver” situation in County of Maui — an agency or litigant failing to seek deference for a regulation that it promulgated and/or that supports its litigating position — might not be so uncommon. A similar situation played out in the D.C. Circuit in Guedes, where the Department of Justice explicitly disclaimed Chevron deference for a rule promulgated by the same administration, going so far as to submit at oral argument that it would rather see its rule set aside than upheld under Chevron. Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 920 F.3d 1, 21 (D.C. Cir. 2019) (per curiam), cert. denied, 140 S. Ct. 789 (2020). As Professor Gillian Metzger has noted, Chevron has become anathema to many conservatives, Gillian E. Metzger, The Supreme Court, 2016 Term — Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1, 15 (2017), suggesting that a DOJ policy of blanket Chevron waiver might not be unthinkable. 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.”101×101. Guedes, 140 S. Ct. at 790 (Gorsuch, J., statement respecting the denial of certiorari). 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 branch102×102. See Kent Barnett, Christina L. Boyd & Christopher J. Walker, Administrative Law’s Political Dynamics, 71 Vand. L. Rev. 1463, 1479–81 (2018) (explaining the Chevron Court’s embrace of this rationale by noting the Court’s focus was on comparative accountability vis-à-vis the judiciary, while scholarly criticism of it has been focused on absolute measures of accountability). — 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.