WASHINGTON — Before President Donald Trump’s executive orders started raising questions about the authority of FERC and other agencies, courts had already started to chip away at longstanding precedents such as the Chevron deference, experts said during a panel at NARUC’s Winter Policy Summit.

“Chevron has been on the ropes for many, many years,” Jonathan Ellis, a partner with McGuireWoods, said during the Feb. 24 panel. “Justice [Antonin] Scalia was once an ardent supporter, and then toward the end of his career soured on the doctrine.” (See Supreme Court Ends Chevron Deference to Administrative Agencies.)

Before Scalia started to change his tune on the precedent, Ellis clerked for Chief Justice John Roberts, who Ellis said was never a big fan of the doctrine, in which courts usually deferred to decisions by regulatory agencies on issues of their expertise.

In many cases preceding Loper Bright Enterprises v. Raimondo, the court had worked around Chevron, but the petition for certiorari in that case already asked the court to rule against it or find it did not apply, Ellis said.

“There will always be, I think, out of necessity, some role or deference to regulatory agencies and expertise that they represent,” he added.

Georgetown University law professor Howard Shelanski agreed that the tea leaves had not augured well for Chevron for quite some time, but noted the issues in the case went to the heart of the constitutionality of Congress delegating authority to agencies.

“For a long time, it was taken as a given by the court that concerns over delegation had been asked and answered,” Shelanski said. “And so long as there was some kind of articulable principle that limited the agency — even a very vague one, even a very general one — they had to allow that Congress had the authority to give the agency some scope for interpretation. And that led to the view, if a statute is silent on something, the agency should be able to step in.”

‘Ambiguous Phrasing’

Overruling Chevron means precedent has reverted back to the 1970s, when courts could second guess agency decisions on appeal as a matter of statutory interpretation, he said.

FERC Solicitor Robert Solomon said in his 30-year career he has probably cited the Chevron doctrine as much as any lawyer, but over the past 10 years the Supreme Court and lower courts have increasingly avoided using it.

“Courts have gone out of their way to find the absence of ambiguity and no need to defer formally under Chevron to the agency,” he added.

The Energy Policy Act of 2005 contained what Solomon called “some of the most ambiguous phrasing” he could imagine around when FERC’s backstop transmission siting authority kicked in, but the U.S. 4th Circuit Court of Appeals still declined to follow Chevron in Piedmont Environmental Council v. FERC and sided against the agency, effectively gutting that statute for a decade until Congress passed another law.

“In the Supreme Court demand response case, FERC v. EPSA — the greatest case ever decided, the majority found that the FERC’s authority to essentially regulate demand response, because it has a direct effect on wholesale prices, was clear and unambiguous,” Solomon said, making a joking reference to a case he argued.

But in a dissent in that case, Scalia argued the statute was “clear and unambiguous” against FERC because the agency “was effectively regulating retail sales within the ambit of state authorities,” Solomon said.

Even before Chevron was struck down, it had proved difficult to determine when courts would apply it, and now FERC’s legal team is getting around the issue by using the term “respect” rather than “deference,” he said, adding that he’s concerned by some of the language courts use when they invoke their authority under Article 3 of the Constitution to resolve all questions of law.

Regardless of court actions, Solomon said FERC still has a responsibility to make well-reasoned decisions based on the record before it. Loper Bright will have an impact on interpreting federal law and when it comes to issues where FERC’s authority clashes with that of states, the trend has been to let jurisdictions overlap, he said.

“From my perspective, the bigger concern right now isn’t whether Chevron deference or respect continues to live for our interpretation of federal statutes,” Solomon said. “… Rather, the current issue is whether we will continue to get Chevron-like deference, not when we are interpreting the federal statute, but rather when we are interpreting a federally approved tariff or a contract that similarly involves interpretation by Article 3 courts.”

Courts have expertise in interpreting the law, but FERC has continued to argue in court that it has special expertise when it comes to the rates and tariffs that make up the bulk of its work, Solomon contended. And the agency is waiting for a case that will determine whether the courts will defer to its expertise on jurisdictional contracts and tariffs, he added.

“In the eight months or so since [Loper Bright] was decided, the courts continue to go out of their way to explain whether or not the decision would have been any different if Chevron still applied,” Solomon said. “It’s actually been quite satisfactory to us. There have been a couple of recent decisions where the court has said not just simply that the agency’s interpretation was reasonable or permissible, but rather it was the best or the correct interpretation.”