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Unformatted text preview: CLASS 12 CONT’D ENTERGY CORP v. RIVERKEEPER (S.C. 2009) Scalia 2d Cir – CBA forbidden under CWA Does “best available technology” permit CBA under Chevron Step 2? Websters = “best = most advantageous” “minimizing” – implys degrees not absolutes Silence about CBA is ambiguous, at best EPA used CBA to avoid extremes $389mil v. 3.5bil (last 10% problem? – Breyer) Breyer accepts use of minimal CBA in Step 2 also Stevens – Step 1 - §316(b) is “plain text” - No CBA cong. does not hide “elephants [CBA] in mousehole” = (Scalia, ref.) Is CBA an elephant or a mousehole in this case? Note – is this really a one step Chevron decision. Class 13
Chevron Puzzles 1) does leg, history count in Step 1? Stevens says yes – but “textualism” challenges this view Textualism as a Non Delegation doctrine (Manning) See Scalia/Breyer 2) long standing interpretations – which way do they __? 3) Rules v. Cases = can courts rule regs (or defer)? 4) Procedures matter (Mead) 5) Stone discuses – Chevron trumps Court? Brand X (S.C. 2005) – Courts prior ________ trumps agency only if in Step 1 – otherwise agency “flip-flops” prevail (counter intuitive?) 6) but obligation to explain heightened 7) Political views of Judges determine Chevron? (Sunstern & Miles) Narrowing Techniques Scalia’s strong view of Chevron (applies to Chevron authoritative pronouncements authoritative 1) 2) 2) 3) 4) No deference on pure questions (Stevens) No (Step 1 controls) Step Zero (preconditions): procedures, finality Step specific v. general statutes, etc. specific Concerns of const. avoidance (Kent) – great Concerns questions (MCI, B&W) Non delegation principle principle Relative Chevron – other techniques compete Chevron at war – implicit delegation preamble when Pres is not an agency Pres Semmole Rich deference – agency interpretation of its A/C and Hard Look Review §706(2)(A),(E) A/C A/C rationality review Hard look requires process and substance review Hard Scenic Hudson (2d Cir 1065) Scenic Ruled adequately to consider scenic factors Ruled FPC not an umpire blandly calling balls and strikes Perverse effect of Hard Work – Etnyl Corp v. EPA – Bazelon (procedure) v. eventual (substance) ...
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- Fall '04