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Recently, Justices of the Supreme Court have called the Court’s deference jurisprudence into significant question. Then Judge Gorsuch, separately concurring in his own panel decision for the Tenth Circuit in Gutierrez-Brizuela v. Lynch, questioned the wisdom of Chevron deference, cataloguing multiple concerns with the doctrine. Justice Thomas has repeatedly called for the Court to reconsider its deference to agency interpretations of their own regulations under Auer v. Robbins. And a petition for writ of certiorari has been pending for well over a year in DuPont v. Smiley, which questions the continuing viability of Skidmore deference. Reconsideration of these doctrines could have a substantial effect on Clean Water Act jurisprudence. EPA and the Army Corps of Engineers have adopted extensive regulations interpreting the Act’s many technical provisions. Each agency has then published a wide variety of guidance documents, such as the Army Corps’ library of Regulatory Guidance Letters and Regional Supplements to the 1987 Wetland Delineation Manual, and EPA’s 2008 Post-Rapanos Guidance.
This teleforum provides an overview of current thinking about deference doctrines on the Supreme Court, the role of deference in the enforcement of the Clean Water Act, and the implications of abandoning judicial deference to agencies for the implementation of the Act.
Professor Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Director of the Center for Business Law & Regulation, Case Western Reserve University School of Law
Timothy Bishop, Partner, Mayer Brown LLP
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