Judicial Deference to Government Agencies-What It Is, Why It Matters, and How You Can Use It to Your Advantage
Government agencies typically hold the upper hand in court, thanks to something called judicial deference. While the Supreme Court may soon modify this doctrine as it applies in many federal cases, government agencies are likely to maintain a strong advantage, especially in cases before Maryland's State courts. But knowledge is power. Folks who engage in regulatory processes with thought, intention and persistence can soften the bite of, if not overcome, judicial deference, and ultimately prevail.
Understanding Judicial Deference to Government Agencies
As anyone who’s tried to fight a speeding ticket knows, the government
generally gets the benefit of the doubt in court. This is true for a number of
reasons. Governments typically acts under laws that spell out the rules of
engagement and put them in charge of administering them. They have procedures for
implementing the law that their agents are trained to follow. They document
their actions to demonstrate compliance with these laws and procedures. And
they often appear in court with attorneys and witnesses that are familiar to
and trusted by the court.
Even when a case is complicated by a novel legal issue,
courts lean heavily in favor of the government actor, under a doctrine known as
judicial deference. Judicial deference has been shaped by roughly 80 years of
Supreme Court rulings driven by federal statutes creating and empowering
administrative agencies to do increasingly complex and technical work. As federal
laws often delegate authority to parallel state programs, and state laws
similarly delegate authority to counties and municipalities, this growth in
what is referred to as the “Administrative State,” can be seen at all levels of
government.
As currently formulated, the federal doctrine of judicial deference
directs courts to defer to an agency's reasonable interpretation of ambiguous
statutes, as long as it falls within the agency's expertise and is consistent
with congressional intent. This rule was first stated in the 1984 case of Chevron v NRDC,
and is often referred to as “Chevron deference.” There are corollary doctrines by
which courts defer to an agency’s interpretation of its own regulations and to
less formal administrative proclamations.
Maryland Courts Also
Defer to Government Agencies
Maryland, like many other states, has its own doctrine of judicial deference that differs somewhat from the federal Chevron standard. Maryland courts defer to an administrative agency’s interpretation of a statute that it administers on a “sliding scale,” giving “more weight when the interpretation results from a process of reasoned elaboration by the agency, when the agency has applied that interpretation consistently over time, or when the interpretation is the product of contested adversarial proceedings or formal rule making.” To an even greater extent, Maryland courts defer to an agency’s interpretation of its own regulations. As the Maryland Supreme Court has explained, courts “do not play the role of an über administrative agency in reviewing the actions of state or local bodies, but, rather we exercise discipline in our review so as not to cross the separation of powers boundary.”[i]
And deference to an agency’s legal interpretations
is only part of the picture. When reviewing
agency decisions subject to the contested case provisions of the Maryland Administrative
Procedures Act, for example, courts may only reverse or modify a decision that
is: (i) is unconstitutional; (ii) exceeds the statutory authority or
jurisdiction of the final decision maker; (iii) results from an unlawful procedure;
(iv) is affected by any other error of law; (v) is unsupported by competent,
material, and substantial evidence in light of the entire record as submitted;
or (vi) is arbitrary or capricious. In other words, a court is likely to uphold
an agency decision in a contested case even in the face of contrary factual and
expert opinion testimony and plausible alternative legal interpretations. All
the agency needs to show is that it has acted rationally and within its
authority, followed applicable procedures, and placed in the record sufficient evidentiary
support.
Recent and Anticipated Narrowing of Judicial Deference
The US Supreme Court is set
this term to revisit Chevron
deference head-on in the case of Loper
Bright Enterprises v Raimondo, a case in which Atlantic herring fishermen
challenge a National Marine Fisheries Service regulation requiring them to pay
for federal on-board fishing monitors. Because
of the current makeup of the Court, many believe it will narrow or
overrule the doctrine in favor of a less deferential rule of statutory
interpretation. Advocates for Chevron’s
demise want a weakened Administrative State, a more predictable regulatory
climate where agencies color inside the lines, and a more functional Congress that
clearly draws them.
Regardless of the outcome in Loper Bright, judicial deference to government agencies on statutory interpretation is expected to endure in some form. For one thing, the separation of powers, which prevents administrative overreach, also constrains the role of the judiciary. Courts are explicitly not to act as super agencies. Additionally, courts acknowledge that legislatures frequently delegate substantial authority to agencies to execute complex statutory frameworks, and that lawmakers are free to address any misinterpretations through the legislative process. Furthermore, without the expectation of judicial deference, courts would be inundated with cases as litigants seek to establish the superiority of their interpretations over the agencies', resulting in more time-consuming and resource-intensive proceedings that run counter to judicial economy. Lastly, state courts often reference federal case law but retain the flexibility to establish their own deference standards. States like Maryland, with a well-established body of independent case law, are unlikely to significantly deviate from their current deference practices.
Maximizing
Success: How Judicial Deference Should Inform Government Engagement
Why should you or your business care about judicial
deference? It highlights the value of working constructively with these agencies
early on to increase your chances of obtaining necessary approvals or influencing regulations that can benefit your business or
quality of life.
What does effective engagement look like? Consider
these recommendations:
1. Conform Your Conduct
to Existing Rules: If it is possible and practical to conform your project
or actions to existing administrative requirements, strive to do so. If not, you’ll
need to engage early enough to seek exception or variance from the applicable
rules, or to change the applicable rules altogether.
2. Engage Proactively: Proactive engagement with government agencies is ideally initiated as early as possible in the planning stages of a project or when you foresee the need for government approvals, permits, or regulatory actions. To maximize your chances of success in navigating applicable administrative processes, consider the following proactive steps:
Know the Rules: Be well-versed in the rules and regulations
that govern your business activities. Understanding the legal framework is
fundamental.
Monitor Initiatives: Keep a watchful eye on initiatives
and proposals aimed at updating or changing existing regulations. Being informed
early allows you to adapt your plans accordingly.
Seek Necessary Changes: If existing rules don't align with
your business and project objectives, don't hesitate to seek changes or
revisions.
Early and Continuous Participation: Engage
as early as possible and maintain involvement throughout the regulatory or
policy development process. Your input can influence the outcome.
Build Relationships: Develop positive relationships with
regulators. Being on good terms with agency personnel can make your business a
priority as they shape their regulatory agenda.
Engage Outside Professionals: If you lack the time, expertise or resources to handle these tasks in-house, consider hiring outside professionals who are not only competent but also well-connected to the agencies and decision-makers that impact your industry.
Proactive
Engagement: A Safeguard for Challenging Adverse Outcomes
Even with effective engagement, your project or proposal may be rejected or your application for authorization denied. However, these efforts are not in vain; they bolster your odds of success in any legal challenge, regardless of the principle of judicial deference. Here's why this proactive approach is vital:
1.
Building a Strong Record
Throughout your engagement with government agencies, whether in
seeking authorizations, participating in regulatory processes, or building
relationships with regulators, you are essentially creating a robust record of
your involvement and concerns. This record can become invaluable if you find
yourself in a position where you need to challenge an adverse decision in
court.
When you can demonstrate that you actively participated in the
administrative process, provided input, and raised objections when necessary,
it can strengthen your legal position. Courts often give more weight to parties
who have a history of meaningful engagement with the agency, as it indicates a
genuine effort to comply with and understand the regulatory framework.
2. Showing
Reasonableness and Rationality
In the event of a legal challenge, the courts will assess whether
the agency's decision was reasonable and based on a rational basis, applying
the "arbitrary and capricious" standard. If you can show that your
engagement was reasonable and grounded in a genuine concern for compliance and
the public interest, it can bolster your argument that the agency's decision
was, in fact, arbitrary or capricious.
Your proactive engagement becomes evidence of your commitment to
responsible business practices and your willingness to work collaboratively
with regulators to achieve mutually beneficial outcomes. This can create a
compelling narrative in court, potentially leading to more favorable rulings.
3.
Leveraging Legal Expertise
Engaging outside professionals with expertise in administrative
law and government affairs can be particularly advantageous. These professionals
not only help you navigate the complexities of regulatory processes but also
provide critical guidance on how to build a strong record for potential legal
challenges. They can ensure that your engagement aligns with legal strategies
aimed at safeguarding your interests.
Conclusion
The interplay between government agencies and the judicial
system holds significant implications for individuals and businesses alike.
Judicial deference underscores the importance of early engagement with
regulatory bodies to navigate the complex landscape of regulations effectively.
It also prompts a strategic decision-making process: whether to align with
existing rules or seek their modification. As we move forward, understanding
the dynamics of judicial review and the principles of administrative law becomes
crucial for those seeking to thrive in regulated environments. By staying
informed and strategically adapting to these dynamics, individuals and
businesses can better position themselves to navigate the challenges and
opportunities of an ever-evolving regulatory landscape.
Watershed Legal Counsel is a law firm in Annapolis, Maryland. The firm is led by Jennifer Wazenski, who served in the Maryland Office of the Attorney General as Principal Counsel to the Maryland Department of Natural Resources and Deputy Counsel to the Maryland Department of the Environment. Watershed Legal Counsel is ready to help you navigate regulatory processes in environmental and natural resources matters throughout Maryland.
Disclaimer: Attorney advertising. The information provided at this site is for general purposes only.
It is not, nor is it intended to be, legal advice.
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