Judges Judith W. Rogers and Gregory G. Katsas made up a lively Bench. The advocates took as their point of departure the fact that the Clean Air Act had not defined what Congress meant by “stationary source” and vigorously debated whether the court or the agency was best situated legally and practically to supply a definition in the face of that ambiguity. The wide-ranging argument touched on numerous topics, with advocates urging variously that deferring to agencies builds in bias in situations where agencies deal with regulated entities, putting a thumb on the agency side of the scale (NRDC), and that permitting judges to substitute their own answers in the face of an ambiguous statute enables them to insert their own policy preferences, unmoored by law and insulated from the processes of political accountability (Gorsuch).
At the conclusion of argument, Professor Christopher J. Walker of Ohio State University Moritz College of Law moderated a panel discussion. Joining Metzger and the advocates Elwood and Vladeck, was Dean John F. Manning of the Harvard Law School. Pressed by Professor Walker’s questions, the panel explored the current debate over Chevron from many angles. Several on the panel thought constitutional arguments against Chevron were less compelling than arguments premised on the Administrative Procedure Act. Pressed for predictions, the panel ultimately reached consensus that, at least in the near future, the Supreme Court is unlikely to overrule Chevron but may trim it. Panelists also noted that, in finding more “step one” cases, the courts have stealthily been taking back control for some time, but all seemed to agree that continuing a rule of deference of some kind to agency action is inevitable.