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Kaitlyn Maxwell of Greenberg Traurig Kaitlyn Maxwell of Greenberg Traurig

The U.S. Supreme Court recently had the opportunity to overturn Auer deference, Kisor v. Wilkie, No. 18-15, (U.S. June 26, 2019). A 5-4 majority declined to do so, but not without emphasizing the limits of the doctrine. Auer deference refers to the doctrine that a court should generally defer to an agency’s interpretation of agency regulations when the regulations are determined to be ambiguous, see Auer v. Robbins, 519 U. S. 452 (1997). The doctrine also may be referred to as Seminole Rock deference, see Bowles v. Seminole Rock & Sand, 325 U.S. 410 (1945). This doctrine has been called into question because it essentially allows the regulatory body charged with writing the regulation the final say as to what the regulation means. Environmental lawyers, and anyone else involved in regulatory disputes, will likely want to keep the stated limits—whether new or old—front and center moving forward.

 

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