Though some announced the death of “the modern administrative state”1 when Loper Bright Enterprises v. Raimondo2 overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,3 the Court spared some deference to agency decisions. Commentary on post–Loper Bright deference has focused on the persuasive, but not controlling, authority of agency interpretations of statutory language outlined in Skidmore v. Swift & Co.4 But the Court offered another path, noting that “judicial review of agency policymaking and factfinding [should] be deferential,” while reminding that “courts, not agencies, will decide ‘all relevant questions of law.’”5 Recently, in Melone v. Coit,6 the First Circuit upheld an agency determination that only a “small number[]” of endangered whales would be harmed by a proposed wind farm7 — while saying that its holding required no reliance on Chevron.8 Melone is a useful demonstration of the difficult line-drawing exercise between law and fact. The contrast between its holding, decided two months before Chevron was overruled, and the district court’s holding relying on Chevron9 could presage a post–Loper Bright struggle as judges sketch an uncertain line between questions of law and questions of fact.10
Vineyard Wind 1 was the United States’s first utility-scale offshore wind project to begin delivering electricity.11 Located fifteen miles off the coast of Martha’s Vineyard, the project is expected to “power more than 400,000 homes and businesses” once fully operational.12 Melone assessed the validity of an Incidental Harassment Authorization (IHA) issued by the National Marine Fisheries Service (NMFS) during Vineyard Wind’s development.13 The Marine Mammal Protection Act14 (MMPA) imposes a “moratorium on the taking . . . of marine mammals,”15 and defines “taking” to include “harass[ing].”16 However, the Act mandates that the government authorize certain “taking by harassment” as an exception to the moratorium: [C]itizens . . . engage[d] in a specified activity . . . within a specific geographic region” may request authorization for “the incidental, but not intentional, taking by harassment of small numbers of marine mammals of a species or population stock . . . if the Secretary [of the Interior] finds that such harassment . . . will have a negligible impact on such species or stock.17
Vineyard Wind requested an IHA from NMFS in September 2018 given the potential that noise from its pile driving (a process used to construct wind turbine foundations) would disturb right whales.18 The North Atlantic right whale is endangered, with only 368 remaining as of 2019,19 and thus protected by the MMPA.20 In May 2021, NMFS issued an IHA to Vineyard Wind authorizing the “non-lethal, incidental . . . harassment of” at most twenty North Atlantic right whales.21 NMFS determined that twenty right whales subject to harassment was a “small number[]” because it was small “relative to the [total] population” (5.4%).22
One month after NMFS published notice of its IHA, Thomas Melone, a part-time Martha’s Vineyard resident, and two solar energy companies he owned sued NMFS and other federal actors in the District of Massachusetts.23 Melone alleged violations of both the Administrative Procedure Act24 (APA) and the MMPA and requested, inter alia, that the district court vacate the IHA.25 Vineyard Wind filed a motion for permissive intervention, which the district court granted.26
The district court then granted summary judgment for the defendants.27 The district court began its review of Melone’s MMPA claims by laying out “the familiar Chevron two-step analysis,”28 which it said governed “an Agency’s interpretation of a statute.”29 While at times citing legislative history to demonstrate that NMFS’s interpretation of the MMPA was reasonable, the district court rejected each of Melone’s “challenges [to] NMFS’s interpretations of six terms of the statute,” as well as his claim that the NMFS impermissibly relied on “old data.”30 In assessing NMFS’s “small numbers” finding, the district court favorably cited a Ninth Circuit decision holding that an agency’s “‘interpretation’ of the ‘small numbers’ language . . . was entitled to Chevron deference,”31 and itself held that NMFS’s interpretation was not “unreasonable” (the Chevron standard) in response to Melone’s argument that 5.4% is not a small number per that phrase’s “ordinary meaning.”32
The First Circuit affirmed. Judge Kayatta,33 writing for a unanimous panel, started by quickly rejecting Melone’s argument that permissive intervention required independent standing, explaining that such a showing is not required because “Vineyard Wind simply seeks to defend the agency’s position.”34 And Judge Kayatta otherwise found no abuse of discretion in the district court’s “obvious” conclusion regarding Vineyard Wind’s interest in the case.35
The court then considered Melone’s merits challenges while disclaiming any reliance on Chevron.36 Judge Kayatta noted that he found “no need . . . to defer to any interpretation by the agency of any statute.”37 Therefore, instead of testing the reasonableness of any statutory interpretations, he tested only NMFS’s permitting process against the APA’s bar on agency actions that are “‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ or ‘unsupported by substantial evidence.’”38
First, Judge Kayatta found no issue with NMFS’s “small numbers” determination.39 But while the district court seemed to frame the “small numbers” issue as a question of law, Judge Kayatta appeared to assess it as a question of fact. Like the district court, Judge Kayatta cited the Ninth Circuit decision that a federal agency’s “proportional approach” to the small numbers question was a “reasonable interpretation of the MMPA.”40 However, Judge Kayatta avoided any interpretive questions himself by declining to “consider the propriety” of one alleged interpretation.41 Melone had targeted a defense NMFS offered to the district court — that the agency considers takes of one-third or less of a species’ population to be a “small number[]” — arguing that the “policy [was] an unreasonable interpretation of the statute.”42 But NMFS “walk[ed] back its invocation of [that] so-called one-third rule”43 on appeal, noting that the IHA itself did not rely on the rule.44 Judge Kayatta agreed, arguing that courts consider only the agency’s contemporaneous, rather than post hoc, rationales.45 He also rejected Melone’s argument that 5.4% was not a small number, pointing in part to a District of Alaska holding that a 10% take of whales was a “small number.”46 While avoiding the word “interpretation,” the First Circuit concluded: “[I]t is clear from the record that NMFS applied its scientific expertise . . . to quantify the proposed take . . . . Given these considerations, we find no fault with the agency’s ‘small numbers’ determination here.”47
Second, Judge Kayatta considered whether NMFS impermissibly segmented the “specified activity” by assessing only the Vineyard Wind activity (rather than all similar activities in the area), and whether NMFS considered a too-narrow “specific geographic region.”48 Judge Kayatta held that NMFS’s “consider[ation]” that the “specified activity” was Vineyard Wind’s pile driving “was neither arbitrary nor capricious.”49 And Judge Kayatta agreed with NMFS that Melone’s complaint that the region was too small was “unwarranted” based on both the statute’s legislative history and NMFS’s factfinding.50
Melone is an example of how the uncertain distinction between law and fact leaves room in the joints to maintain deference to agency action post–Loper Bright — demonstrating the difficult line-drawing ahead as lower courts implement the Court’s instructions in Loper Bright.51 Given the limitations on the other two remaining sources of deference post–Loper Bright — express delegation and Skidmore — “policymaking and factfinding” deference may attract litigants where the underlying statute does not expressly delegate interpretive authority.
Before Loper Bright, administrative law doctrine provided a relatively straightforward path to deference for both “negligible impact” and “small numbers” determinations. By providing that IHAs are contingent on “the Secretary find[ing] that [the requested] harassment . . . will have a negligible impact,”52 the MMPA “‘expressly delegate[s]’ to [the NMFS] the authority to give meaning to” “negligible impact.”53 Chevron instructed that agency action pursuant to “explicit[]” delegations of authority deserves arbitrary and capricious review, while action based on “implicit” delegations should receive reasonableness review.54 The MMPA provides no explicit role for the Secretary in making “find[ings]” regarding what is a “small number[].”55 Yet pre–Loper Bright courts could have read the Secretary’s “find[ing]” role broadly and concluded that Congress “implicit[ly]” delegated authority to the Secretary, given it was “apparent from the agency’s generally conferred authority and other statutory circumstances that Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity.”56
But the First Circuit appeared to guess that Loper Bright would soon close off this implicit delegation path to deference, pushing the court to reclassify a legal question as a factual one. Although Judge Kayatta did not explain why he declined to rely on Chevron, his and the defendants’ efforts to shake off Melone’s accusation that NMFS relied on a “one-third” “blanket policy”57 fits with one popular attempt to distinguish law and fact: “[L]aw . . . is general in character. Fact identification, by contrast, is a case-specific inquiry into what happened here.”58 As a government brief in Melone noted: “[T]he [IHA] did not advance a generic interpretation of ‘small numbers’ . . . , which could have implicated doctrines prescribing judicial deference . . . . Rather, . . . NMFS made a fact-bound determination . . . [which] is accordingly reviewed under the APA’s deferential arbitrary and capricious standard.”59
Because agencies could receive deference to their determinations of both law and fact pre–Loper Bright, they had relatively less incentive to clarify the distinction between the two. The distinction and overlap between Chevron and “arbitrary and capricious” review was much debated pre–Loper Bright, but both were deferential standards, and any difference between the two was smaller than the difference between some deference and no deference.60 Even if a court, over objections, found agency action to be an “interpretation” and subjected it to Chevron review on top of the perhaps always mandatory “arbitrary and capricious” review,61 Chevron deference still resulted mostly in agency wins.62 The incentives are now flipped — where before agencies may have sought to characterize their action as interpreting a statute they were (implicitly) entrusted to interpret,63 their incentive is now to avoid the stain of interpretation.
That flip was exemplified in Melone: In October 2022, the federal defendants argued that “NMFS’s interpretation of the term ‘small numbers’” was entitled to Chevron deference.64 But after former Solicitor General Paul Clement filed a petition for a writ of certiorari in Loper Bright the following month,65 the government’s very next brief backed off from Chevron, citing it zero times and arguing that the agency’s interpretation was “the best one.”66 After the district court applied Chevron, the government instead argued before the First Circuit that the “small numbers” finding was not an interpretation at all.67
Loper Bright left open three paths to agency deference — (1) “explicit delegation,” (2) Skidmore respect, and (3) “policymaking and factfinding.” Although Loper Bright is not clear whether “policymaking and factfinding” deserve deference without an explicit delegation of authority, the opinion justifies those two types of deference on different grounds, implying that they are separate ways for deference to attach. Deference to explicit delegations emerges from reading the relevant statute for congressional instruction that an agency ought to receive deference on legal questions, while “policymaking and factfinding” deference emerges from the APA’s instruction in 5 U.S.C. §§ 706(2)(A) and (E).68 Loper Bright even pointed out precedents for this approach in its review of the pre-APA history: The Court described as “factbound determinations” deserving “deferential review” the holdings in Gray v. Powell,69 which considered whether an agency was “a ‘producer’ of coal,” and NLRB v. Hearst Publications, Inc.,70 which considered whether “newsboys were ‘employee[s].’”71
In a post–Loper Bright world, that third path to deference may be the best bad option for federal defendants in circumstances like Melone. Explicit delegation may have been difficult to find in Melone given the text of the MMPA.72 And although Judge Kayatta could have applied Skidmore-type analysis, such “deference” is not really deference.73 This third type of deference, however, is also narrow and uncertain. As Chief Justice Roberts and Justices Thomas and Kagan warned, the Court may police attempts to reclassify legal issues as nonlegal.74 Moreover, much agency action cannot reasonably withstand that maneuver — while divining the difference between law and fact can be difficult at times, many actions are clearly interpretations of law.75
As lower courts attempt this divining process, they may run into a similar difficulty that courts faced in another law versus fact context — appellate standards of review. The Supreme Court adopted a “policy-oriented,” rather than “[s]emantic[],” approach in its guidance to appellate courts trying to separate legal questions, which demand their de novo review, from factual questions, which deserve deference to the lower court judge or jury.76 When an issue “falls somewhere between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue.”77 That standard applied to Melone would likely point to deference — the NMFS is “better positioned” than a court is to determine what number of whales is small. However, such a policy-oriented approach seems unlikely for the Court to accept, as it essentially revives Chevron (or elevates Skidmore). And given that the Court found “policymaking and factfinding” deference in the APA’s text (rather than in functionalist considerations),78 lower courts too may need to search the APA for the precise meaning of that term.
Though writing before Loper Bright, Judge Kayatta saw the writing on the wall and began charting a path for future courts to follow in an uncertain post–Loper Bright world. While some have already started to follow that path,79 it will likely remain rocky for the time being.