A blog on practice in the Nation’s second-most powerful court

D.C. Circuit throws shade on legislative history and Chevron

Are you a litigator looking for a federal case that (a) rejects legislative history, or (b) frowns on applying Chevron deference in the face of statutory silence? If so, last week, the D.C. Circuit published a decision for you.

The case involved the North Atlantic right whale. The question was whether a federal agency properly evaluated how a fishery would affect the whale, an endangered species. According to the agency, it “may, when faced with uncertainty, give the ‘benefit of the doubt’ to an endangered species by relying upon worst-case scenarios or pessimistic assumptions.”

Not so, held the D.C. Circuit.

“[T]he Service argues the relevant text says nothing about how an agency must handle uncertainties in the data, and this silence means the Service had discretion to do what it did here. …  Without mentioning the case, the agency is, in substance, asking us to adopt an aggressive reading of Chevron that has more or less fallen into desuetude.  …

“There are several problems with this sub rosa Chevron argument. … [T]he Service misconceived the law, wrongly claiming the legislative history of the ESA had ordained—if legislative history could ever ordain—a precautionary principle in favor of the species. The Service therefore gets no deference, and its action cannot stand.

“Indeed, the Service’s legal reasoning was not just wrong; it was egregiously wrong. The Service’s argument rested entirely upon a half-sentence in the legislative history. This approach is a relic from a bygone era of statutory construction. Under the Service’s approach, legislative history may supply duties that … are not found in the enacted law. As the Supreme Court recently said, ‘We cannot approve such a casual disregard of the rules of statutory interpretation.’ For ‘legislative history is not the law.'”