Agency Statutory Abnegation, Defined and Distinguished A.
Should the generally deregulatory valence of such statutory abnegation trigger different agency justification burdens and judicial expectations?
Agencies will ordinarily receive deference in their interpretations of laws they administer, and statutory abnegation involves, at its core, agency statutory interpretation.
These propositions about agency power and judicial review might, upon a superficial initial analysis, seem to lead next to the logical proposition that agencies should be granted broad latitude to engage in statutory abnegation. However, the line of cases that collectively create the body of consistency doctrine squarely rejects any argument for less rigorous judicial review.
Bush administration sought to justify its policy change and inaction on climate change with an abnegation claim.
Part I defines statutory abnegation, reviews agency uses of this strategy, and distinguishes it from several other ways agencies may seek to change policy or achieve deregulatory ends.
(24) In any of these procedural modes, an agency can reveal a policy change based on statutory abnegation. This Part introduces agency statutory abnegation and distinguishes it from other sorts of agency actions.
In its strongest form, agency statutory abnegation has the following attributes.
In abnegation's most unadorned, bare form, an agency reverses an action or policy and explains the reversal as compelled by its new view that it lacks (and earlier lacked) the authority previously claimed.
But abnegation is quite different from the more standard agency proffer of a different policy that is described as also an option under existing law.
Perhaps the most famous example of agency abnegation occurred in the agency actions leading to the Supreme Court's Massachusetts v EPA decision rejecting EPA's declination to regulate greenhouse-gas emissions ("GHGs").
Statutory abnegation became common in a wave of 2017 and 2018 deregulatory actions by agencies under the Trump administration.
In an unusual form of statutory abnegation, EPA also proposed in several different actions to abandon the Clean Water Rule, a 2015 EPA and Army Corps of Engineers rule that sought to reduce regulatory uncertainty about what sorts of waters are subject to federal jurisdiction as "waters of the United States." (80) The 2015 rule followed a lengthy rulemaking, preparation of a metastudy of all peer-reviewed scientific literature concerning types of waters and their functions and "connectivity," and then publication of this "Connectivity Report" after opportunities for comment.
The 2017 and 2018 abnegation claims-and their associated deregulatory actions regarding the Clean Water Rule and federally protected "water[s] of the United States"-were unusual and a bit indirect.
EPA's proposed adoption of this view would involve abnegation at several levels: it would reject how a majority of Justices in Rapanos construed the nature and extent of federal power; it would reject decades of contrary regulatory interpretations by EPA and the Army Corps; it would run contrary to the Connectivity Report's conclusions; and it would disavow authority to protect waters in much of the nation, even where quality water is most important.