Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/531447
AGGREGATES MANAGER July 2015 40 AGGREGATES MANAGER July 2015 40 Rock Supreme Court Justices criticize the disregard for formal rulemaking and note 'constitutional concerns' about the ability of agencies to change the meaning of regulations at their discretion. AN END TO THE by Patrick W. Dennison Patrick W. Dennison is an associate in Jackson Kelly PLLC's Pittsburgh office, practicing in the Occupational Safety and Health Practice Group and the Coal and Oil and Gas Industry Groups. He can be reached at 412-434- 8815 or pwdennison@ jacksonkelly.com. Doctrine of Deference? I n the October 2011 edition of Aggregates Manager, I wrote an article entitled "No Notice Required: MSHA's disregard for rulemaking authority makes its way to the Review Commission" that detailed the Mine Safety and Health Administration's (MSHA) substantive change to the standard, 30 C.F.R. ยง 56.12028 without formal rulemaking. Since that article, the Federal Mine Safety and Health Review Commission affirmed the ALJ's decision in Tilden Mining, Co., 36 FMSHRC 1965 (Review Commission, August 2014), and found that MSHA's application of Section 56.12028 to ex- tension and power cords was interpretive rather than substantive, and that it was entitled to deference. Because of the Commission's char- acterization of the change in the standard as interpretive, they also found that the Secretary did not need to undertake rulemaking. MSHA's about-face application of Section 56.12028 is a prime example of an admin- istrative agency regulating by fiat where, through the guise of "interpretation," it creates new laws without subjecting them to the scru- tiny of formal rulemaking. The Commission's decision in Tilden illustrates the deference courts provide to agencies, even where cur- rent positions contradict prior ones. But are the days of agency deference numbered? In a recent Supreme Court decision, three Justices criticized the disregard of formal rulemaking and called to end the doctrine of deference. On March 9, 2015, the Supreme Court is- sued a decision in Perez v. Mortgage Bankers Assoc., et al., 135 S. Ct. 1199, 575 U.S. ___ (2015), invalidating a legal doctrine that sub- jected interpretive rules that significantly devi- ate from a previously adopted interpretation to notice and comment rulemaking. The opinion, written by Justice Sonya Sotomayor, found that, because notice and comment procedures are not required when agencies enact inter- pretive rules, they should not be required to make subsequent interpretations. But Justices Alito, Scalia, and Thomas fo- cused their concurring opinions on a critique of agency power, ambiguous regulations, and deference. Justice Alito wrote that, "The cre- ation of the doctrine may have been based on the aggrandizement of the power of admin- istrative agencies as a result of the combined effect of (1) the effective delegation to agen- cies by Congress of huge swaths of lawmaking authority, (2) the exploitation by agencies of the uncertain boundary between legislative and interpretive rules, and (3) this Court's cas- es holding that courts must ordinarily defer to an agency's interpretation of its own ambigu- ous regulations." Justice Scalia proposes abandoning defer- ence. He notes that agencies, "may not use interpretive rules to bind the public by making law, because it remains the responsibility of the court to decide whether the law means what the agency says it means." But because of def- erence to an agency's interpretation of its own