Challenging EPA Rule Interpretations: The Future of Auer Deference After Kisor v. Wilkie

A live 90-minute CLE webinar with interactive Q&A

Thursday, September 12, 2019

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

or call 1-800-926-7926

This CLE webinar will discuss Auer deference--judicial deference to agency decisions--in light of the recent Supreme Court decision in Kisor v. Wilkie, and provide practical guidance to environmental counsel in challenging EPA enforcement actions on behalf of their clients.


Longstanding case law holds that, when challenged in court, agency interpretations of their regulations are entitled to deference unless plainly inconsistent with the regulatory text. But in its recent ruling in Kisor v. Wilkie, the Supreme Court reconsidered Auer deference, emphasizing limitations on the scope and applicability of that doctrine. The Court reminded lower courts that a regulation must be "genuinely ambiguous" for deference to be warranted, and the reviewing court must exhaust all "the traditional tools of construction" before coming to that conclusion. The Court also emphasized that, if genuine ambiguity remains, "the agency’s reading must still be reasonable," encouraging lower courts to give closer scrutiny to the agency's analysis. Finally, the Court explained that, for deference to be warranted, the agency's interpretation must, inter alia, be authoritatively set forth with appropriate notice to regulated parties (as opposed to articulated for the first time in litigation, for example), reflect the agency's "fair and considered judgment," and be based on the agency's "substantive expertise."

While the decision in Kisor did not address the validity of the deference doctrine set forth in Chevron USA Inc. v. Natural Resources Defense Council, where the Supreme Court held that courts should defer to an agency's reasonable interpretation of a statute the agency is charged with administering where it is ambiguous, Kisor may have implications for that doctrine as well. Certain of the concurring and dissenting opinions explicitly referenced, and seemed to question, the validity of Chevron deference, and the Kisor majority's discussion of how a court should determine whether ambiguity exists is equally relevant in the context of statutory interpretation.

Listen as our authoritative panel of environmental experts discusses Auer deference in light of Kisor v. Wilkie and provides practical guidance to environmental counsel in challenging EPA enforcement actions on behalf of their clients.



  1. Overview
  2. Chevron and Auer deference
  3. The substance and potential impact of Kisor v. Wilkie
  4. Practical guidance and strategies


The panel will review these and other key issues:

  • What is the status of Chevron and Auer deference?
  • What are the practical implications of the Supreme Court's decision in Kisor v. Wilkie?
  • How do these cases impact the tools available to the EPA and other agencies--and to parties challenging the EPA and other agencies--in regulatory litigation?
  • What are the best practices for challenging agency actions based on Kisor and other recent administrative law developments?


Berman, Amanda
Amanda Shafer Berman

Crowell & Moring

Ms. Berman draws on her extensive appellate and district court experience to achieve the best possible outcome for...  |  Read More

Thomas Brugato

Special Counsel
Covington & Burling

Mr. Brugato’s practice focuses on environmental matters, as well as civil and administrative litigation. He has...  |  Read More

Maxwell, Kaitlyn
Kaitlyn R. Maxwell

Greenberg Traurig

Ms. Maxwell focuses her practice on environmental litigation. She advises clients on regulatory compliance issues and...  |  Read More

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