On December, 10, 2018, the United States Supreme Court granted a petition for writ of certiorari in Kisor  v. Wilkie (No. 18-15), which raises the issue of whether Auer deference should be overruled.  Auer deference (also known as Seminole Rock deference) requires courts to defer to an agency’s reasonable interpretation of its own ambiguous regulations.  Auer deference is similar to Chevron deference, which requires courts to defer to an agency’s reasonable interpretation of ambiguous statutes.  As this blog has noted, agency deference has been in the spotlight recently, particularly with the appointments of Justices Gorsuch and Kavanaugh to the Supreme Court.  Justices Alito and Thomas also criticized Auer deference in a 2015 Supreme Court holding.

In Kisor, a Vietnam veteran is seeking retroactive benefits from the U.S. Department of Veterans Affairs (VA) for post-traumatic stress disorder (PTSD).  The United States Court of Appeals for the Federal Circuit invoked Auer deference when evaluating the VA’s interpretation of its regulations, which resulted in the denial of the retroactive coverage for the veteran.  The question taken up by the Supreme Court is “whether the Court should overrule Auer and Seminole Rock.”

The Kisor case is not an environmental case, but the Supreme Court’s ruling could have significant impacts for environmental litigation.  Enforcement actions, permitting processes, and other agency actions are all impacted by the deference agencies receive as a result of the Auer deference doctrine.

If the Supreme Court overrules its Auer precedent and concludes that either the weaker Skidmore deference or no deference is appropriate, agencies will no longer have the security of knowing that the judicial branch will defer to the agencies.  A decision that overrules Auer deference may result in more tightly and precisely drafted regulations.  The Supreme Court will hear the case next year and likely make its ruling in late spring or summer.