Supreme Court Ruling Could Provide an Avenue for Challenging Regulations

DTN writer Todd Neeley reported earlier this week that, “Courts can no longer automatically defer to federal agency interpretation of federal rules, but instead will be required to determine whether regulations are clear in the first place, the United States Supreme Court ruled last week.

For farmers like Arlen Foster in South Dakota the ruling could provide an avenue for successfully challenging regulations.

“Foster has been battling a USDA wetland determination on a 0.8-acre tract of land since 2008. The tract was declared a wetland based on a USDA process Foster convinced the Supreme Court to review.”

Mr. Neeley explained that, “Foster told DTN on Monday he hopes the ruling will ‘rein in a lot of the ad hoc rule making.’

“Last week the Supreme Court issued a ruling in Kisor v. Wilkie, a case involving Vietnam War veteran James L. Kisor and a government denial of benefits. That case challenged an administrative law doctrine that gives broad powers to federal agencies in how they interpret regulations. The doctrine is known as ‘Auer deference.’

“The legal doctrine allows courts to defer to agency interpretations of regulations in legal challenges as long as they are not inconsistent with regulatory text. Interpretations of rules or laws such as the Clean Water Act are not subject to notice or the rulemaking process, making it difficult to challenge in court.”

Mr. Neeley noted that, “The court’s opinion released on June 26 talks about the need to limit the use of Auer deference.

“‘Auer deference is not the answer to every question of interpreting an agency’s rules,’ the court said. ‘Far from it. As we explain in this section, the possibility of deference can arise only if a regulation is genuinely ambiguous. And when we use that term, we mean it — genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation.

“‘When it applies, Auer deference gives an agency significant leeway to say what its own rules mean. In so doing, the doctrine enables the agency to fill out the regulatory scheme Congress has placed under its supervision. But that phrase ‘when it applies’ is important — because it often doesn’t.‘”

The DTN article indicated that, “Foster’s case was cited in the Kisor petition as an example of why the court should hear the case. Foster appealed a decision by the Natural Resources Conservation Service to use a comparison site to make a wetland determination on his land.”

This entry was posted in Agriculture Law. Bookmark the permalink. Both comments and trackbacks are currently closed.