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Encouraging Reasoned Decision Making: Kisor v. Wilkie and the Future of Auer Deference

In 2019, the Supreme Court decided Kisor v. Wilkie, a case that asked the Court to revisit Auer deference, the doctrine which instructs courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation. Auer deference, along with other judicial deference doctrines, has received vehement criticism from legal scholars and political scientists. Among these criticisms is the assertion that Auer deference allows too much opportunity for judges’ own views of “reasonableness” to infiltrate their legal analysis, increasing the likelihood that judicial deference to agency interpretations will be significantly influenced by ideology. The majority decision in Kisor purported to articulate clearer standards for the application of Auer deference and require judges to more clearly articulate their analysis in cases where Auer deference may be appropriate. This Note considers whether the Kisor framework could mitigate the impact of judicial ideology on deference decisions. It focuses in particular on the use of Auer deference in cases involving the Endangered Species Act, a statute which has been highly polarizing along party lines. The Note examines several cases, decided before and after Kisor, in which federal courts were asked to rule on the meaning of Endangered Species Act regulations. This analysis suggests that while Kisor is unlikely to completely remove the influence of judicial ideology on deference decisions, its requirement that judges “show their work” has the potential to significantly reduce the role that judicial ideology plays in determining what constitutes a “reasonable” interpretation of an ambiguous regulation. While it is too soon to definitively evaluate Kisor’s impact on deference decisions, this Note suggests that the Kisor framework encourages a more principled and ideologically neutral approach to difficult agency deference decisions.

Feb 16, 2021
Chelsea Mitchell

The No CARB Diet: Should the California State Legislature Cut the California Air Resources Board Out of Its Emissions Reduction Regulatory Scheme?

The Cap-and-Trade Program is a crucial aspect of California’s climate agenda and one of the foremost carbon emissions reduction efforts in the world. But flaws in the design of the Program’s compliance instruments diminish its overall effectiveness by limiting the amount of net emissions reductions achieved. This In Brief argues that enabling covered entities to purchase nonadditional carbon offsets and bank emissions allowances creates loopholes that lead to increased emissions and deepened inequities.

Feb 16, 2021
Joya Manjur

Giving a Hoot: Adaption of Conservation Laws to Address the Management of Invasive Species to Protect Spotted Owls

Congress enacted the Migratory Bird Treaty Act (MBTA) and the Endangered Species Act (ESA) to ensure species are protected and habitats are preserved. In 2008, the U.S. Fish and Wildlife Service (the Service) sought permits for an experimental removal of Barred Owls, an invasive species protected under the MBTA that is contributing to the decline of the Northern Spotted Owl, a threatened species protected under the ESA and the MBTA. In Friends of Animals v. U.S. Fish & Wildlife Service, the Ninth Circuit upheld the Service’s proposed action and found that birds protected under the MBTA may be removed for scientific use. Additionally, the Court found that removing a protected species, known as “take,” does not have to benefit the species being taken (harmed, harassed, or killed). This ruling allows Barred Owls to be removed for the benefit of Northern Spotted Owls. The court rejected the “same-species theory,” which required take of a species protected by the MBTA be for the benefit of that same species. This decision provides the Service with flexibility to experimentally remove protected invasive species for the benefit of other species experiencing population declines. This In Brief will examine the potential ramifications of these interventions going forward.

Feb 16, 2021
Jetta Cook

Public Land Bargains, Revolutionary Rhetoric, and Building Trust

In 2019, the Supreme Court decided Sturgeon v. Frost for the second time. Sturgeon arose because of a 1980 federal statute, the Alaska National Interest Lands Conservation Act, that limited the executive branch’s jurisdiction over public land in Alaska to lands to which the federal government holds title. This is a major deviation from the default public land management regime, in which the federal government can regulate private activity on state or private land under the Property Clause of the Constitution to achieve public land objectives. Because this limitation only applies in Alaska, the Alaska National Interest Lands Conservation Act can be thought of as a public land “bargain” between one state and the federal government. This Note discusses public land “bargains,” like the Alaska National Interest Lands Conservation Act, and proposes a framework for assessing future “bargains.” To do this, it first presents a taxonomy of existing public land “bargains,” focusing on the rhetorical context surrounding their passage. Second, it presents some of the arguments made by modern public land “bargain” advocates. Third, it argues that public land “bargains” can make it more challenging for the federal government to promote healthy ecological systems and achieve statutory goals. Fourth, it proposes a loose theoretical framework for assessing public land “bargains” in light of those costs. Finally, it argues that the costs of public land “bargains” might be avoidable if land management agencies instead work to build trust with public land communities.

Feb 16, 2021
Robert Kutchin