Chevron Deference Under Attack At State Level

Seyfarth Synopsis: On April 11, 2018, Arizona Governor Doug Ducey signed into law HB 2238, which amended the state's administrative procedure laws to remove "Chevron Deference," so that for disputes involving state administrative law, courts will not be required to defer to an agency's interpretation of an ambiguous statutory provision.

The legal doctrine—named for the 1984 Supreme Court decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844 (1984)—has been criticized by various judges, including U.S. Supreme Court Justice Neil Gorsuch (then sitting on the Tenth Circuit). The U.S. Senate has also unsuccessfully attempted to repeal the doctrine.

Under Chevron, if a statutory term is ambiguous, the agency has authority to construe that term and interpret its meaning within the statutory scheme by promulgating regulations following Administrative Procedure Act (APA) notice and comment procedures. In such instances, the court must defer to that interpretation. This is arguably permissible because Congress explicitly granted agencies the ability to interpret their governing statutes, if APA rulemaking procedures are followed in establishing the agency's interpretation of regulations.

State courts have largely followed or deferred to Chevron when evaluating an interpretation of a state statute by the state agency charged with implementing that statute's mandates.

HB 2239 amended Arizona Revised Statutes §12-910, regarding the scope of judicial review of administrative decisions. The new law added language to subsection E, and created subsections F and G. The new statute reads as follows:

. . . In a proceeding brought by or against the regulated party, the court shall decide all questions of...