96 Georgetown Law Journal 1083 (2008) (with Lauren E. Baer)
The much-toasted "Chevron Revolution" began with a bubble. The Clean Air Act Amendments of 1977 capped pollution-emissions levels at "major stationary sources." Representing an Arizona smelting company, the tony Washington, D.C., law firm Shea & Gardner persuaded the EPA that an entire cluster of buildings within an industrial plant should count as a single stationary source; this "bubble concept" would allow firms flexibility to offset increased emissions from one building by reducing them elsewhere within the single plant. The D.C. Circuit twice rejected the bubble concept for "non-attainment" states where the Act required improved emissions levels. The second case, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, reached the Supreme Court, where the bubble concept got an important conceptual boost from Deputy Solicitor General Paul Bator. Representing the EPA, Bator argued that Congress's purpose was complex-to clean up the nation's air (the lower court's focus), but at a reasonable cost to industry (Shea & Gardner's focus). Because the statute was fairly open-ended, the EPA had considerable discretion in setting this policy balance, and federal judges should not upset that balance unless the EPA's view was clearly contrary to the statute.
Date of Authorship for this Version
Eskridge, William N. Jr. and Baer, Lauren E., "The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan" (2008). Faculty Scholarship Series. 3772.