Oral Argument Analysis: City of Guyton v. Barrow and the swan song of agency deference in Georgia

Agency deference may not be long for the world in Georgia.

In City of Guyton et al. v. Barrow, S18C0944, the Court asked the parties to address two questions. One question dealt with the Georgia Department of Natural Resources, Environmental Protection Division's "antidegradation rule," Ga. Comp. R. & Regs. r. 391-3-6-.03(2)(b)(ii); specifically, does the rule "require an antidegradation analysis before issuing a permit to a facility that will discharge pollutants from a nonpoint source into the waters of this State?"

The other, and more significant, asked "[w]hat level of judicial deference should be afforded to a state agency in its interpretation of its own internal rules and regulations?" Those familiar with doctrines of agency deference like Chevron and Auer might be interested to know that, despite the traditional analytical framework of deference doctrines, the Court's first question in the order granting cert was about appropriate deference, and its second question was about statutory interpretation.

Inferring that the Court was therefore more concerned with the deference question than the interpretive question is just one way of looking at the cert petition, but there are reasons to think it is the right one.

First, It is no secret that skepticism of agency deference has picked up speed in recent years, fueled mainly by arguments that deferring to agency interpretations of ambiguous statutes and regulations threatens the separation of powers by ceding to the executive branch a task properly reserved for the judiciary: saying "what the law is." See, e.g., Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (2016) (Gorsuch, Circuit Judge, concurring) (citing Marbury v. Madison, 5 U.S. 137, 167 (1803)).

Second, oral arguments in City of Guyton gave the impression that such skepticism exists on the Georgia Supreme Court, and that, given the appropriate opportunity, that this skepticism may translate into overruling the State analogues to Chevron and Auer.  Justice Peterson pointedly asked "how is deference of this sort even remotely consistent with  Chief Justice Marshall's observation in Marbury v. Madison that it is the duty of the judicial branch to declare what the law is?" Responding to arguments that deference to agency expertise may be an appropriate response to truly ambiguous text, Justice Peterson expressed doubts as to whether ambiguity could "change our obligation to declare what the law is," or whether "subject matter expertise [could] better empower an agency to know what words mean." Justice Nahmias expressed similar skepticism of deference, pointing out the normal "tiebreaker" in ambiguous statutory text is that ambiguity cannot regulate people. 

Viewing the case as a whole, it is possible, perhaps even likely, that City of Guyton will not be the death of agency deference in Georgia. The State's interpretation-based arguments are strong, and the Justices appeared at least somewhat receptive to them. Further, City of Guyton is an unusual deference case because the agency's interpretation of the antidegradation purports to regulate less, rather than more conduct. This is significant because one of the more powerful interpretive canons is that the government cannot regulate with ambiguous text, i.e. that ambiguous text does not regulate. In such a case, deferring to an agency's interpretation of its own regulations produces much the same result as if the courts did not defer at all. 

Even so, it seems that the days are numbered for agency deference in Georgia. The end may come in City of Guyton; the Court may wait for a case where the agency's reading of the relevant text is not the best interpretation, or where deference would impose more rather than less regulation; the Court may even wait to take the lead of the United States Supreme Court, which is poised to decide an agency deference case in Kisor v. Wilkie ("Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation?"). But, one way or the other, City of Guyton may signal the impending doom of agency deference in Georgia.


Other Referenced cases/materials

• Order Granting Certiorari, case no. S18C0944 (available at https://www.gasupreme.us/wp-content/uploads/2018/08/s18c0944.pdf)
• Chevron U.S.A. Inc. v. Nautral Resources Defense Council, Inc., 467 U.S. 837 (1984)
• Auer v. Robbins, 519 U.S. 542 (1996)
• Oral Argument, City of Guyton v. Barrow (available at https://scgtv.new.swagit.com/videos/23457)
•  Ga. Dept. of Revenue v. Owens Corning, 283 Ga. 489, 490, 660 S.E.2d 719 (2008) (Ordinarily, “the interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference.”)
• Schrenko v. DeKalb County School Dist., 276 Ga. 786, 792(2), 582 S.E.2d 109 (2003). (“Although this Court is ‘not bound to blindly follow’ an agency's interpretation, we defer to an agency's interpretation when it reflects the meaning of the statute and comports with legislative intent.”)