Supreme Court Declines to Consider Chevron Deference Because Government Did Not Ask It To (Updated)

An interesting administrative law tidbit in one of today's Supreme Court decisions.

Among today's Supreme Court decisions was HollyFrontier Cheyenne Refining v. Renewable Fuels Association, which concerned smaller fuel refiners' eligibility for hardship extensions under the federal renewable fuels program. The EPA had granted such an exemption, and some program participants objected.

The justices split in HollyFrontier over the best way to interpret the relevant statutory provisions. Given that a federal agency action was involved—here, the EPA's grant of a hardship exemption—one might have thought that Chevron deference might have played a role in the decision. But that was not the case. As Justice Gorsuch explains, because the federal government did not ask for such deference, Chevron was not considered.

Here is the relevant passage from Justice Gorsuch's opinion for the Court:

The refineries suggest we need to place still another point in their column. They direct our attention to a regulation EPA adopted in 2014 to clarify the bounds of "small refinery" status. When EPA first sought public comment, some suggested a refinery should be eligible for exemption only if it constantly remained "small" from 2006 onward—and EPA expressly rejected that view in favor of revisiting annually whether a refinery falls above or below the "small refinery" threshold. 40 CFR §80.1441(e)(2)(iii). Before the Tenth Circuit, the Agency insisted this regulation sheds light on the meaning of "extension" and underscores that it does not include a continuity requirement. Indeed, EPA asked the court of appeals to defer to its understanding under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Although the refineries repeat that ask here, the government does not. With the recent change in administrations, "the government is not invoking Chevron." Brief for Federal Respondent 46–47. We therefore decline to consider whether any deference might be due its regulation.

While not part of the Court's holding, this passage seems to indicate that a clear majority of the Court is on board with the idea that the federal government may waive Chevron deference. That is, in order for an agency to receive such deference, not only must it satisfy the various requirements suggested by Mead and related cases, but the government must also seek such deference from the courts. That the government relied upon Chevron deference below and that other litigants seek to have the Court consider Chevron is not enough.

Update: One wrinkle that is worth noting here is that the federal government flipped its position in this litigation following the change in administration. While the federal government had defended the EPA's grant of the exemption below, the Solicitor General's office did not support the petition for certiorari (in 2020), and (after President Biden assumed office) submitted a brief defending the Tenth Circuit's decision below.

For what it's worth, this means this is another decision in which the Department of Justice changed its position and subsequently lost in the Supreme Court. In California v. Texas the Justice Department also changed its position and prevailed, albeit not on the grounds urged by the new administration.