Auer deference is weird. It is different from all the other forms of judicial deference to agency actions. As a result, it has become the topic of some debate. Some, like Justice Scalia, find the doctrine disturbing because it gives agencies the authority to be the legislature, the judiciary, and the executive, resulting in agencies that make, interpret, and enforce the law. Others find Auer problematic because it encourages agencies to make vague rules, thereby leaving themselves room to create new law through later informal interpretations. Of course, defenders of Auer are not troubled by these concerns, noting that bright lines between law making and law interpreting never really exist. Whenever a court is called on to interpret a vague statute or regulation, it necessarily creates some law to fill the gap, thus exercising “legislative” powers. Both sides have good points, and their critiques flow from legitimate concerns about how laws are made and interpreted.

And, all that is fine, as far as it goes, but what I find most perplexing about Auer is that it demands courts defer to nearly any agency interpretation of its regulations, regardless of where, when, or how the agency offers that interpretation. This leads to some bizarre results.

In Decker v. Northwest Environmental Defense Center, for example, the Court deferred to an agency interpretation of its regulations offered for the first time in an amicus brief filed three months after the plaintiff had filed its complaint in the case and nearly two decades after the agency wrote the regulations. The issue is Decker was whether stormwater discharges from logging roads required a Clean Water Act permit. Under the Clean Water Act, the “discharge [of stormwater] associated with industrial activity” is illegal unless authorized by a permit. In its “Industrial Stormwater Rule,” promulgated through notice and comment rulemaking, EPA defined the scope of “industrial activity” that would be subject to the permit requirement. The Rule explicitly included the logging industry within the sweep of regulated activities, and clarified that “industrial activity” extended beyond the immediate site of activity, and included any access roads associated with those activities.

The plaintiff argued that because logging is defined as an industrial activity, and logging roads are access roads associated with logging, discharges from these roads comfortably fell within the regulatory sweep of the Clean Water Act. And, on this point, it seems pretty straight forward that the plaintiff was right – its interpretation of the rules was the most logical way to read the regulations. But EPA disagreed; the agency filed an amicus brief in support of the defendants’ motion to dismiss in which it said that, actually, when the agency drafted the stormwater rule twenty years earlier, it did not intend to include discharges from logging roads. The court then invoked Auer, and just like that, two decades later, EPA changed its regulations through a single amicus brief.

This is not an isolated instance of courts deferring to relatively isolated “interpretations” of regulations. In Udall v. Tallman, for example, the Court deferred to an agency’s interpretation of its regulations offered in testimony to a congressional committee. Even longtime and consistent agency practice can constitute an “interpretation” that gets Auer deference.

This “defer to anything” standard is both weird and diametrically opposed to the jurisprudence on deference to agency interpretations of statutes. When a court reviews an agency’s interpretation of a statute, one of the most important questions it asks is how was the agency’s interpretation created and published. The level of deference to an agency’s interpretation depends, nearly entirely, on the rigor and formality of the agency’s action. If the agency went through notice and comment rulemaking, the resulting rule is law so long as it is not “arbitrary and capricious,” while an agency’s informal policy paper drafted without public notice or input gets consideration only to the extent its logic has the power to persuade. In short – the more formal an agency’s interpretation, and the more public process it has gone through, the more weight it will carry before the court. The same should be true for agency interpretations of its own rules.

If parties do take up Chief Justice Roberts’ invitation to challenge Auer deference, I think courts would go a long way to getting rid of the weirdness of Auer simply by making it more like Skidmore and Chevron deference, and calibrate the level of deference to the thoroughness or formality of the agency’s interpretation of its regulations.

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Daniel Mensher is an attorney with Keller Rohrback, LLP in Seattle. 

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This post is part of an online symposium entitled Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations. You can read the entire series here.