Chevron, deference, multiple agencies, shared regulatory authority, Skidmore


When a party files suit challenging the legitimacy of an agency’s interpretation of its governing statute, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. instructs courts to defer to the agency’s interpretation where (1) the court has found that Congress had not foreclosed the agency’s interpretation, and (2) the agency’s interpretation was a reasonable or permissible exercise of its authority. However, sometimes Congress enacts statutes delegating authority over a given regulatory space to more than one agency. When two agencies have shared authority under the same regulatory scheme, those agencies may disagree regarding the interpretation of certain provisions that the agencies administer. This forces courts to consider the applicability of Chevron: To which agency does the court owe deference? All of the agencies? Only one? Does the court owe deference at all?

Some courts refuse to award any deference where multiple agencies administer a statute. Other courts do not view deference as precluded, and they instead consider the reasonableness of the interpretations in awarding the less substantial Skidmore deference. The courts’ differing treatments are a subsidiary problem to a more fundamental issue: Why should the fact that multiple agencies administer a statute affect the award of deference if the interpretation is a reasonable exercise of authority?

This Note argues that courts should rely on the policies, considerations, and canons of construction that gave way to and underlie the principles of deference in determining to which agency the court should defer. The Note offers a six-factor balancing test for courts to use in making this assessment.