Deference to Regulatory Interpretations After Kisor v. Wilkie: A Major Change for Agency Enforcement Authority?

Of Zombies, Active Moeities, and Auer Deference:
Searching for Guidance in the Supreme Court’s Kisor v. Wilkie Decision

The U.S. Supreme Court issued its long-awaited decision in Kisor v. Wilkie in June. At issue was whether to retain a controversial doctrine requiring judges to defer to agencies’ interpretations of regulatory texts previously promulgated by the agency. Instead of discarding so-called Auer deference, the Court issued a fractured opinion. This presentation will provide background on Auer deference, how it works in practice, how it came to be controversial, how Kisor did and did not change the kind of deference judges will afford to environmental and natural resource agencies’ actions going forward, and how Kisor might affect how these agencies make policy.

 

Unbundling Interior’s Enforcement Authority After Kisor v. Wilkie – What’s Left of Devon Energy v. Kempthorne?

For many years, Interior has relied on Auer/Seminole Rock deference to support its enforcement actions in the federal oil and gas leasing program. In particular, Interior has heavily relied on the D.C. Circuit’s 2008 decision in Devon Energy v. Kempthorne, an otherwise run-of-the-mill royalty dispute in which the court agreed that Devon’s regulatory interpretation was no less “reasonable” than Interior’s, but held in favor of Interior because it was “obliged to defer” to the agency. Based on Devon Energy, Interior has ordered the decommissioning of offshore wells, denied lease suspensions needed to preserve billions of dollars of investment in federal units, and retroactively rewritten the rules for resolving royalty-in-kind delivery imbalances. But the most prominent manifestation of Interior’s reliance on Devon Energy is the agency’s royalty “unbundling” program, a multi-billion dollar extra-regulatory behemoth that Interior has fashioned wholly out of Devon Energy’s cloth. This presentation will examine the impact of Kisor v. Wilkie (together with the Supreme Court’s 2012 decision in Christopher v. SmithKline Beecham) on Interior’s ability to continue relying on Devon Energy v. Kempthorne as authority for the agency’s enforcement actions generally and for its unbundling program specifically.

 

Continuing Education Credit

CLE Credit: This course consists of 90 minutes of continuing legal education. We are applying for two CLE credits for Colorado.  Attorneys may apply on their own for CLE in other jurisdictions.