Agency deference is common parlance to many practitioners, especially those challenging or defending agency actions in appellate courts. Since the U.S. Supreme Court’s decision in Chevron (deference to agencies’ interpretation of ambiguous statutes) and continuing through its decision in Auer (deference to agencies’ interpretation of ambiguous regulations), agency deference has helped administrative agencies defend their actions in court. See Chevron v. NRDC, 467 U.S. 837 (1984) (Chevron); Auer v. Robbins, 519 U.S. 452 (1997) (Auer). However, at both the state and federal level, questions have been raised about whether limits should be placed on such deference and whether the principle should be abolished entirely. Specifically, in Pennsylvania, the Commonwealth and Supreme Courts’ recent rulings may indicate a growing view that agency deference, at least in certain circumstances, should be restrained. Furthermore, the U.S. Supreme Court recently granted certiorari in Loper Bright Enterprises v. Raimondo, which involves a request to overturn or, at the very least, clarify the U.S. Supreme Court’s longstanding Chevron deference standard. See 2023 U.S. LEXIS 1847, __ S.Ct. __ (U.S. 2023).

This article will investigate the Pennsylvania Commonwealth Court and Supreme Court’s recent rulings on agency deference, specifically Marcellus Shale Coalition v. DEP, 292 A.3d 921 (Pa. 2023) (MSC III), DEP v. Clearfield County, 283 A.3d 1275 (Pa. Cmwlth. 2022) (Clearfield County), and Towamencin Township v. Pennsylvania Labor Relations Board, 2022 Pa. Commw. Unpub. LEXIS 428 (Pa. Cmwlth. 2022) (Towamencin Township) and then address the impact, if any, the U.S. Supreme Court’s forthcoming decision in Loper could have on the agency deference standard that is applied by Pennsylvania courts.

Recent Pennsylvania Court Cases on Agency Deference