Nos. 11-1545, 114547

u 1Jje

upreine Qtourt of tie {nitcb tate

CITY OF ARLINGTON, TEXAS, et aL,

V.

Petitioners,

FEDERAL COMMUNICATIONS COMMISSION, et aL,

Respondents.

CABLE, TELECOMMUNICATIONS, ANDTECHNOLOGY COMMITTEE OF THE

NEW ORLEANS CITY COUNCIL,

V.

Pet itioner

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Respondents.

On Writs Of Certiorari To The United StatesCourt OfAppeals For The Fifth Circuit

BRIEF OF THE SOUTHERN COMPANY ASAMICUS CURIAE IN SUPPORT OF PETITIONERS

G. EDIsoN HOLLAND, JR.KARL R. MOORTHE SOUTHERN COMPANY30 Ivan Allen Jr.

Boulevard, N,W.Atlanta, GA 30308(404) 506-5000

DAVID B. RIvKIN, JR.Counsel of RecordMARK W. DELAQUILLEE A. CASEYANDREW M. GROSSMANBAKER & HOSTETLER LLPWashington Square, Suite 11001050 Connecticut Avenue, N.W.Washington, D.C. 20036(202) 861-1500drivkin@bakerlaw.comcounsel for Amicus Curiae

The Southern Company

COCELE LAW BRIEF PRINTING CO. (800) 225-8964OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether separation of powers principles precludecourts from affording Gheuron deference to an agen-cy's determination of its own jurisdiction.

11

RULE 29.6 STATEMENT

Arnicus curiae Southern Company has no parentcorporations, and no publicly traded company owns10% or more of the shares of the Southern Company'sstock.

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..... iv

INTEREST OF THE AMICUS CURIAE ......... I

INTRODUCTION AND SUMMARY OF THE2

ARGUMENT 5

I. Affording Chevron Deference to an Agen-cy's Detennination of Its Own JurisdictionUndermines the Constitutional Separationof Powers and Is Inconsistent with Chevron'sDoctrinal Basis 5

IL Denying chevron Deference to Agency'sJurisdictional Determinations Is Consistentwith Sound Principles of Statutory Inter-pretation 14

CONCLUSION 19

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TABLE OF AUTHORITIES

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CASES

Adams Fruit Go. u. Barrett, 494 U.S. 638 (1990) ..4, 13

BankAmerica Corp. v. United States, 462 U.S.122 (1983)

Barnhart o. Walton, 535 U.S. 212 (2002)............. ...... 11

Chevron U.S.A. Inc. v. Natural Resources De-fense Council, Inc., 467 U.S. 837 (1984) .........passim

City of Arlington v. FCC, 668 F.3d 229 (5th Cir.2012) 16

Guyahoga Valley Ry. Co. v. United Transp.Union, 474 U.S. 3(1985) 17

FDA v. Brown & Williamson Tobacco Corp.,529 U.S. 120 (2000) 18

Free Enter Fund v. Pub. Co. Accounting Over-sight Rd., 130 S. Ct. 3138(2010) 11

Hunter v. FERC, No. 11-1477 (D.C. Cir.) (filedDec. 12, 2011) 17, 18

La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355(1986) 9

Marbury v. Madison, 5 U.S. (1 Cranch) 137(1803) 10

Massachusetts v. EPA, 549 U.S. 497 (2007) 18

Mississippi Power & Light Co. u. Mississippi exrd. Moore, 487 U.S. 354(1988) 14, 15

Mistretta v. United States, 488 U.S. 361 (1989) 6, 8

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TABLE OF AUTHORITIES - Continued

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Skidmore v. Swift & Go., 323 U.S. 134(1944) ............................5, 15, 18, 19

Smiley v. Citibank (South Dakota), N.A., 517U.S. 735 (1996) 14

Steel Go. v. Citizens for Better Env't, 523 U.S.83 (1998) 16

Talk America, Inc. u. Michigan Bell TelephoneGo., 131 S. Ct. 2254 (2011) 2, 3, 8, 9

United States u. Mead Corp., 533 U.S. 218(2001) 12, 19

Whitman v. Am. Trucking Ass'ns, 531 U.S. 457(2001) 7

CoNs UIONAL PROVISIONS STATUTES

U.S. Const. art. I, § 1 6

7U.S.C.2 17

15 U.S.C. § 717c-1 17

47 U.S.C. § 332 16

Cable Television Consumer Protection andCompetition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992) 11

OTHER AUThORITIES

Antonin Scalia, Judicial Deference to Adminis-trative Interpretations of Law, 1989 DukeL.J.511 6

vi

TABLE OF AUTHORITIES * Continued

Page

Antonin Scalia & Bryan A. Garner, ReadingLaw: The interpretation of Legal Texts (2012)

The Federalist No. 47 (Hallowell, ecL, 1842) (J.Madison)

Max Raclin, A Case Study in Statutory Inter-pretation: Western Union Co. v. Lenroot, 33CaL L. Rev. 219(1945) 9

Nathan A. Sales & Jonathan H. A&er, The RestIs Silence: Chevron Deference, Agency Juris-diction, and Statutory Silences, 2009 U. IlLL. Rev. 1497 7, 10, 16

Timothy K. Armstrong, Chevron Deference andAgency Self-Interest, 13 Cornell J. L. & Pub.Pol'y 203 (2004) 9

1

INTEREST OF THE AMICUS CURIAE'

The Southern Company is one of America'sleading electricity producers, delivering affordableand reliable energy to more than 4.4 million custom-ers through its operating companies, including theAlabama Power Company, Georgia Power Company,Gulf Power Company, and Mississippi Power Compa-fly (collectively "Southern Company"). Nearly everyaspect of the Southern Company's operations isregulated at the federal or state level. At the federallevel, the Southern Company system is subject toregulation by, inter alia, the U.S. EnvironmentalProtection Agency ("EPA") pursuant to the Clean AirAct and Federal Water Pollution Control Act, theFederal Communications Commission pursuant to thePole Attachments Act, and the Federal Energy Regu-latory Commission pursuant to the Federal PowerAct. At the same time, the Southern Company is aregulated public utility, subject to intensive oversightand scrutiny by public service commissions and otherstate agencies.

The Southern Company's experience is thatadministrative agencies tend to take a more expan-sive view of their powers than Congress ever clearly

Pursuant to Supreme Court Rule 37.6, counsel for ainicuscuriae represents that it entirely authored this brief and noparty, its counsel, or any other entity but araicus and its counselmade a monetary contribution to fund the brief's preparation orsubmission. All parties have consented to the filing of this brief.Letters reflecting their consent are filed with the Clerk.

2

intended to delegate to them, creating significantregulatory uncertainties that impair investment andpresent significant operational difficulties. TheSouthern Company thus strongly believes that defer-ence under Chevron U.S.A. Inc. v. Natural ResourcesDefense Council, Inc., 467 U.S. 837 (1984), is inap-propriate to federal agencies' determination of thelimits of their powers, Congress's delegation of au-thority, as determined de novo by the judiciary, andnot an agency's own view as to the limits of its au-thority, should govern.

INTRODUCTION ANDSUMMARY OF THE ARGUMENT

Chevron held that reviewing courts should deferto an agency's interpretation of a statute Congressintended it to administer. Since that decision, theCourt has carefully distinguished between situationswhere judicial deference to agency action furthersCongress's purposes in implementing statutoryschemes, such as through the enactment of legislativerules to administer statutory programs where there isno question of jurisdiction, see Chevron, 467 U.S. at843-44, and those where deference disserves Con-gress's intent or calls into question the appropriatebalance of powers among the coordinate branches ofgovernment, such as where an agency promulgates avague regulation and then demands deference in itsinterpretation and application of that regulation, seeTalk America, Inc. v. Michigan Bell Telephone Co.,

3

131 S. Ct. 2254, 2266 (2011) (Scalia, J., concurring).The Court is now faced with the question of whetheran agency's determination of its jurisdiction meritsdeference under Chevron. It does not.

Given the prominence that administrative agen-cies have assumed in the everyday governance of theUnited States, judicial review of their decisionsshould further the separation of powers principlesunderlying our constitutional system. Deference to anagency's view of its own jurisdiction frustrates theorderly development and predictability of the lawwhile promoting arbitrary government. Cf TalkAmerica, 131 S. Ct. at 2266 (Scalia, J., concurring)(discussing constitutional concerns with deferring toan agency's interpretation of its own regulations).This is because, unlike discretion inherent in con-gressional grants of regulatory authority, see Chev-ron, 467 U.S. at 843-44, allowing agencies both todetermine the limits of their power, and then toexercise that power, impermissibly unites legislativeand executive functions in the same body. This resultis contrary to the fundamental separation of powerprinciples on which our constitutional democracy isfounded. See Talk America, 131 S. Ct. at 2266 (Scalia,J., concurring).

In particular, permitting agencies to determinethe limits of their own jurisdiction, by affording thosedeterminations Chevron deference, undercuts theprinciple of political accountability that the separationof powers was intended to further. Chevron deferencenecessarily implies a protean administrative power

4

than can be changed and extended within the realmof statutory silence, subject only to the proceduralsafeguards contained in the Administrative ProcedureAct and certain organic statutes, As such, a decisiondeferring to an agency's extension of its own juris-diction would excuse the political branches from theirresponsibility to address new challenges through con-stitutionally-prescribed processes, exalting existingadministrative authorities that may or may not bewell suited to meet those challenges.

Furthermore, as a doctrinal matter, "[a] precon-dition to deference under Chevron is a congressionaldelegation of administrative authority." Adams Fruit

o. v. Barrett, 494 U.S. 638, 649 (1990). In decid-ing the initial question of whether or not Congressactually delegated authority - that is, jurisdiction- deference under Chevron would be illogical andunwarranted as it presumes the very delegationthat justifies Chevron deference in the first place. Itnecessarily follows that C'hevron's rationale does notsupport deferring to agency jurisdictional determina-tions; if anything, Chevron suggests that the courtsmust police the limits of agency power even morestrictly, in view of the broad discretion agencies enjoyover matters within their authority.

Beyond constitutional principles, a presumptionagainst deference to agency jurisdictional determina-tions will further both accountability and clarity inthe law, helping to delineate between the areaswithin and without agencies' jurisdiction.

5

To be sure, deference is not an all or nothingproposition. A general rule declining chevron defer-ence for jurisdictional determinations will not pre-clude reviewing courts from honoring any relevantexpertise that an agency may bring to bear on ques-tions of its jurisdiction. This Court has long held thatcourts should defer to agency arguments with the"power to persuade," Skidmore v. Swift & Go., 323U.S. 134, 140 (1944), and an agency will have ampleopportunity to thoroughly consider jurisdictionalissues and to present a reasoned and thorough legalbasis for its conclusions.

For these reasons, and those discussed below, theCourt should hold that Chevron deference is inappli-cable to agencies' jurisdictional determinations, andshould remand the instant case for proceedingsconsistent with its decision.

ARGUMENT

Affording Chevron Deference to an Agency'sDetermination of Its Own Jurisdiction Un-dermines the Constitutional Separation ofPowers and Is Inconsistent with chevron'sDoctrinal BasIs

1. "Broad delegation to the Executive is thehallmark of the modern administrative state; agencyrulemaking powers are the rule rather than, as theyonce were, the exception; and as the sheer number ofmodern departments and agencies suggests, we are

6

awash in agency 'expertise.'" Antonin Scalia, JudicialDeference to Administrative Interpretations of Law,1989 Duke L.J. 511, 516-17. Given the prominencethat administrative agencies have assumed in theeveryday governance of the United States, any prim-cipled framework for judicial review of their actionsmust take into account administrative agencies' placein our constitutional structure.

First, courts reviewing agency action must en-sure that Congress has not impermissibly delegatedits own legislative powers to administrative agencies.This is the case because the United States Con-stitution vests "[all legislative powers herein granted

in a Congress of the United States," U.S. Const.art. I, § 1, and, "[sitrictly speaking, there is no ac-ceptable delegation of legislative power." Mistretta v.United States, 488 U.S. 361, 419 (1989) (Scalia, J.,dissenting). Instead, "[tjhe whole theory of lawfulcongressional 'delegation' is not that Congress issometimes too busy or too divided and can thereforeassign its responsibility of making law to someoneelse; but rather that a certain degree of discretion,and thus of lawmaking, inheres in most executive orjudicial action." Id. at 417 (Scalia, J., dissenting). Asthe legislative branch, "it is up to Congress, by therelative specificity or generality of its statutorycommands, to determine - up to a point - how smallor how large that degree shall be." Id.

This Court has upheld statutes allowing theExecutive Branch and independent agencies to exer-cise significant discretion so long as the exercise of

7

that discretion is guided by an "intelligible principle,"see Whitman v. Am. Trucking Ass'ns, 531 U.S. 457,472-75 (2001), and it has required that "the degree ofdiscretion that is acceptable varies according to thescope of the power congressionally conferred," id. at475 (emphasis added). It is unquestionably Gongressthat must "lay down by legislative act an intelligibleprinciple," not the agency. Id. at 472 (internal quota-tion marks omitted).

But if administrative agencies are affordedChevron deference when reviewing their own conclu-sions on what power Congress has conferred, courtsmay be unable to determine whether the delegation isconstitutionally permissible in the first place. This isbecause, in the event of an excess delegation, theagency could cure the unlawfulness "by adopting inits discretion a limiting construction of the statute"that is also reasonable - a practice this Court hasexpressly disclaimed. See Whitman, 531 U.S. at 472.

And in light of the vesting of legislative power inCongress, not the Executive Branch (and certainlynot independent agencies), it furthers our constitu-tional values to "create at least a rebuttable presump-tion that Congress has not delegated an agencyauthority to determine the scope of its own jurisdic-tion." See Nathan A. Sales & Jonathan H. Adler, TheRest Is Silence: Chevron Deference, Agency Jurisdic-tion, and Statutory Silences, 2009 U. Ill. L. Rev. 1497,1539. Otherwise, there would be no effective check onagency determinations of their jurisdiction: "If anambiguity, let alone a statutory silence, is sufficient

8

to trigger Chevron deference, an ambiguous statutemay become license for an agency to control the scopeof its own authority, and perhaps even the ability tocreate regulatory authority where no such authoritylegitimately existed." 11.

Second, in reviewing Congress's delegation ofauthority to an administrative agency, courts mustguard against the inappropriate commingling ofauthority that is properly distributed among thethree branches of government. "In designing [theconstitutional structure], the Framers themselvesconsidered how much commingling was, in the gener-ality of things, acceptable, and set forth their conclu-sions in the document" Mistretta, 488 U.S. at 422(Scalia, J., dissenting). The Framers were, in fact,well aware that "'[w]hen the legislative and executivepowers are united in the same person or body, therecan be no liberty, because apprehensions may ariselest the same monarch or senate should enact tyran-nical laws, to execute them in a tyrannical manner."The Federalist No. 47, p. 224 (HalIowell, ed., 1842) (J.Madison) (quoting Montesquieu, Spirit of the Lawsbk. Xl, ch. 6)).

Thus, Chevron deference in the face of statutoryambiguity is generally warranted because it "does notencourage Congress, out of a desire to expand itspower, to enact vague statutes; the vagueness effec-tively cedes power to the Executive." Talk America,131 S. Ct. at 2266 (Scalia, J., concurring). That is onlybecause "1t]he legislative and executive functionsare not combined" and Congress "has no control over

9

[] implementation" but through "more precise[ Ilegislation." Id. But an agency goes too far where itseeks to exercise both legislative and executive ftinc-tions, claiming sole authority to establish rules,interpret those rules, and then enforce them. In thatcase, deference is inappropriate. See id.

Affording Chevron deference to agency jurisdic-tional determinations risks a similar aggrandizementof Executive authority. "[Am agency literally has nopower to act ... unless and until Congress conferspower upon it." La. Pub. Serv. Coinm'n v. FCC, 476U.S. 355, 374 (1986).2 There is a well-recognized andever-present tendency for administrative agencies toenlarge their jurisdictions as a result of fundamentaland unavoidable self-interest. See generally TimothyK. Armstrong, Chevron Deference and Agency Self-Interest, 13 Cornell J. L. & Pub. Pol'y 203 (2004). "Notonly do [agencies] propose solutions to commonlyrecognized social problems, but they also sometimes

Congress could not, of course, exercise the discretion tointerpret statutes after it has enacted them, "When Congressenacts an imprecise statute that it commits to the implementa-tion of an executive agency, it has no control over that imple-mentation (except, of course, through further, more precise,legislation)?' Thlh America, Inc., 131 S. Ct. at 2266 (Scalia, J,,concurring). That is because "the constitutional power grantedto Congress to legislate is granted only if it is exercised in theform of voting on specific statutes." Max Radin, A Case Study inStatutory Interpretation: Western Union Co. v. Lenroot, 33 Cal.L. Rev. 219, 224 (1945), quoted in Antonin Scalia & Bryan A.Garner, Reading Law: The Interpretation of Legal Texts 375(2012).

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seek to persuade the public that there is a problemthat needs solving in the first place." Sales & Adler,supra, at 1554. By contrast, in policing the limits ofagency authority, the Judiciary has no special incen-tive toward aggrandizement beyond that which existsin any justiciable controversy - and perhaps less,because such disputes concern, at base, the appor-tionment of authority between the Legislative andExecutive Branches, and not the Judicial Branch.Moreover, Chevron deference is a departure from thegeneral presumption that "[ijt is emphatically theduty of the Judicial Department to say what the lawis," Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177(1803), and should therefore be afforded only wherethere is a strong inference that Congress intendedthat this default rule be displaced.

In sum, the presumption that Congress does notintend courts to defer to administrative agencies'interpretations of their jurisdiction is a vital guardagainst a commingling of powers and agency self-aggrandizement.

Third, denying Chevron deference to an agency'sdetermination of its own jurisdiction furthers politicalaccountability through the separation of powers, Inenacting a statute and entrusting its administrationto an administrative agency, the political brancheshave done no more than demonstrate the views of

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an individual Congress and President.a "But theseparation of powers does not depend on the views ofindividual Presidents" or Congresses. Free EnterFund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct.3138, 3155 (2010). Instead, where power is "dif-fusetedi" away from the political branches to anadministrative agency, there is a commensurate"diffusion of accountability." Id. at 3155. "Without aclear and effective chain of command, the publiccannot 'determine on whom the blame or the punish-ment of a pernicious measure, or series of perniciousmeasures ought really to fall.'" Id. at 3155 (quotingThe Federalist No. 70 (A. Hamilton)).

Inherent in the judicial presumption of Chevrondeference is the implicit understanding that agencieshave the authority to interpret and reinterpret am-biguous statutes, consistent with their statutorymandates, This is the case even for revision to "anagency interpretation of longstanding duration," asunder Chevron, "the agency is free to move from oneto another, so long as the most recent interpretationis reasonable." Barnhart v. Walton, 535 U.S. 212, 226(2002) (Scalia, J., concurring in part and concurringin the judgment).

Or an individual Congress alone, if the legislation wasenacted over a Presidential veto. See, e.g., Cable TelevisionConsumer Protection and Competition Act of 1992, Pub. L. No.102.385, 106 Stat. 1460(1992).

12

While Chevron deference to an agency's changedstatutory interpretations may be justified wherethere is no question that the statute in question isone that the agency is charged to administer, theagency acts with the level of formality required by theCourt's jurisprudence for Chevron deference, seeUnited States v. Mead Corp., 533 U.S. 218, 228(2001), and the agency's longstanding position wasnot an implicit assumption that the statute is, in fact,unambiguous, see, e.g., BankArnerica Corp. u. UnitedStates, 462 U.S. 122, 130 (1983), applying that degreeof deference to an agency's determination of its juris-diction frustrates political accountability in address-ing new challenges that arise long after Congress haslegislated and that are not clearly within an existingagency's ambit.

As time passes and new policy challenges arise,it is incumbent on the institutions of governmentcreated by the U.S. Constitution to address them orto determine that they ought not to be addressed.One might even say that the key attribute of ourconstitutional system is to ensure that such action issupported by the representatives of a majority of theAmerican people (the House of Representatives),those of a majority of the States (the Senate), and acoordinate branch of government also accountable tothe citizenry (the President).

It is wholly appropriate for an agency to exercisejurisdiction that a prior Congress and President haveunquestionably granted. But in many cases, theinevitable outcome of affording Chevron deference to

13

agency determinations of its jurisdiction is to allowthe political branches to avoid their obligation tomake difficult choices by enacting new statutesin favor of agency action under old statutes. Thisproblem is particularly acute where it is an inde-pendent agency asserting jurisdiction, as politicalaccountability is then especially attenuated.

Chevron helps ensure that courts do not "ossifSr"an agency's ability to act within the scope of itsdelegation. But our constitutional principles are bestserved when action to expand agency jurisdiction isheld not to a heightened legal standard but to thesame one that all other legislative action is held - ajudicial decision on what Congress actually legislated,based on the best reading of the text of the statute.4By contrast, affording agencies deference on the scopeof their own authority removes new challenges fromthe constitutionally-prescribed political process, short-circuiting the safeguards of the separation of powersand democratic accountabiity

2. Beyond undermining constitutional princi-ples, deferring to an agency's determination of itsjurisdiction is inconsistent with the doctrinal basis ofChevron itself. "A precondition to deference underChevron is a congressional delegation of administra-tive authority." Adams Fruit, 494 U.S. at 649; see also

Courts reviewing agency action should, of course, give dueconsideration to any special expertise that an agency brings tobear on the question.

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Smitey v. citibank (South Dakota), NA., 517 U.S.735, 740-41 (1996). Because chevron deference isjustified by a congressional delegation of adniinistra-tive authority, affording deference to an agency'sdetermination of its jurisdiction - to the very questionof whether a congressional delegation of authorityedsts - puts the cart before the horse.

While "Congress would neither anticipate nordesire that every ambiguity in statutory authoritywould be addressed, de novo, by the court," Missis-sippi Power & Light Co. v. Mississippi ex ret. Moore,487 U.S. 354, 382 (1988) (Scalia, J., dissenting),Congress also likely would not have expected that thefox would guard the henhouse. Instead, it is con-sistent with the doctrine underlying Chevron for re-viewing courts to determine whether a question ofstatutory construction is or is not jurisdictional. If thequestion is jurisdictional, then the Court should notdefer; if the question is not jurisdictional, then theCourt should normally defer under chevron.

IL Denying Chevron Deference to Agency'sJurisdictional Determinations Is Consis-tent with Sound Principles of StatutoryInterpretation

Concerns have been raised about whether andhow courts and agencies reasonably may distinguishbetween jurisdictional and non-jurisdictional pro-visions, but this distinction is not different in kindfrom others that the courts routinely draw. Similarly,

15

the appropriateness of confining Chevron to non-jurisdictional agency determinations is sharply high-lighted by the fact that it would be impossible to deferto agency decisions under Chevron in many situationsdue to the possibifity of overlapping jurisdictions.Finally, a decision that Chevron deference does notapply to agency jurisdiction would not preclude alldeference; the application of Skidmore deferencewould still allow agencies to exercise the expertisethey bring to such questions, while promoting greaterclarity and certainty in the law.

1, Some have suggested that "there is no discern-ible line between an agency's exceeding its authorityand an agency's exceeding authorized application ofits authority," and that "[vlirtually any administrativeaction can be characterized as either the one or theother, depending upon how generally one wishes todescribe the 'authority.'" Mississippi Power & LightCo., 487 U.S. at 381 (Scalia, J., dissenting). But whilepotentially difficult in some cases, these questions arenot fundamentally different from other difficult ques-tions courts regularly do answer. Indeed, determiningwhether a statutory provision speaks to agency ju-risdiction is. no more complex than distinguishingprovisions that concern the jurisdiction of the courts.

While "Ejiurisdiction,' it has been observed, 'is aword of many, too many meanings," in this context itmeans power, and the Court has regularly held thatcourts must identify and decide the question of theirown power to decide a particular case at its outset,regardless of whether there may be an "easier" way to

16

resolve the matter. Steel Co. v. Citizens for BetterEnv't, 523 U.S. 83, 90, 93-94 (1998) (quoting UnitedStates v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir.1996)). In enforcing this duty, the Court has care-fully distinguished between jurisdictional and non-jurisdictional matters at a very specific "level ofgenerality," such that it is now the rare case wherejurisdictional and merits issues are confused. SeeSteel Go., 523 U.S. at 89-91; see also Sales & Adler,supra, at 1508-09.

Nor should courts have much difficulty distin-guishing questions of agency jurisdiction from thoseregarding the substance of agency action. For exam-ple, in the decision under review, City of Arlington v.FCC, 668 F.3d 229 (5th Cit 2012), the FCC order atissue interpreted 47 U.S.C. § 332, which in relevantpart was designed to preserve local zoning jurisdic-tion over cell phone towers subject to certain limits.By acting to prescribe rules in an area where theTelecommunications Act of 1996 spoke to the preser-vation of state and local authority, there can be littledoubt that the FCC was making a determination ofits jurisdiction.5

2. The problems with applying Chevron defer-ence to agency jurisdictional determinations are

'None of this is to say that the FCC's action is necessarilycontrary to law, simply that a court should determine if thataction is contrary to law without the application of Chevron.deference in the face of statutory ambiguity if any.

17

demonstrated by the fact that, in a significant num-ber of cases, multiple agencies have a colorable claimof authority over a particular subject or issue. Take,for example, the current dispute between the FederalEnergy Regulatory Commission ("FERC") and theCommodities Future Trading Commission ("CFTC")over alleged market manipulation in natural gasfutures trading. See Hunter v, FERC, No. 11- 1477(D.C. Cir.) (flIed Dec. 12, 2011). In that case, the CFTCand FERC are litigating which agency has jurisdic-tion * the CFTC pursuant to an assertion of exclusivejurisdiction under the Commodities Exchange Act§ 2(a)(1)(A), 7 U.S.C. § 2(a)(1)(A), or FERC pursuantto § 315 of the Energy Policy Act of 2005, 15 U.S.C.§ 717c-1, which amended the Natural Gas Act toprohibit market manipulation and to grant FERCcertain (and contested) powers. See also CuyahogaValley Ry. Co. u. United Transp. Union, 474 U.S. 3, 6-7(1985) (per curiam) (dispute over whether the Secre-tary of Labor or the Occupational Safety and HealthReview Commission had jurisdiction to maintaincitations for alleged violations of the OccupationalSafety and Health Act).

Taking each case in isolation and deferring underChevron to each agency's determination, a reviewingcourt could well conclude that the CFTC has exclu-sive jurisdiction over energy futures market manipu-lation on a CFTC-regulated exchange but that FERCalso has jurisdiction over natural gas futures marketmanipulation. But that conclusion cannot be correct.Adjudicating the agencies' dispute will necessarily

18

involve going beyond Chevron deference to ascertainCongress's intentions as to these feuding agencies'powers.

The fact that many agency jurisdictional deter-minations do not overlap is no answer to this funda-mental problem. In Hunter, for example, the plaintext of neither statute precludes deference to eitherthe CFTC or FERC. Nor does the Court typicallyconsider the enactments of a subsequent Congress toimplicitly abrogate or limit those of a prior Congress.See Massachusetts v. EPA, 549 U.S. 497, 529-30(2007); but see FDA u. Brown & Williamson TobaccoCorp., 529 U.S. 120 (2000). Instead, the conflict inHunter presents a concrete example of how a pre-sumption favoring Chevron deference in review ofagency determinations of their jurisdiction is unwar-ranted and may be problematic in its consequences.

3. Denying Chevron deference to agency juris-dictional determinations will not deprive either thecourts or the public of useful agency expertise. A de-cision that Chevron deference does not apply merelyclarifies the legal standard that a court will use indetermining whether or not to affirm an action underreview; in no case does it necessarily mean that anagency assertion of jurisdiction will or will not beupheld. Instead, the reviewing court will simply applythe standard canons of statutory construction inascertaining Congress's intent. In so doing, the courtwould apply Skidmore deference to the agency's de-termination, in which "[t]he fair measure of defer-ence to an agency administering its own statute

19

var[ies} with circumstances," such as "the degree ofthe agency's care, its consistency, formalit, andrelative expertness, and.. . the persuasiveness of theagency's position?' Mead, 533 U.S. at 228 (citingSkidmore, 323 U.S. at 1394O).

While the application of Skidmore deference hasbeen criticized as "indeterminate," see Mead, 533 U.S.at 239 (Scalia, J., dissenting), there is ample reasonto believe that it is appropriate in the case of agencyjurisdictional determinations. It will allow reviewingcourts to take into account the agency's expertise andrationale for exercising jurisdiction in determiningwhether that exercise is consistent with an ambiguous delegation from Congress. At the same time,however, the courts will be the final arbiters of thesedecisions, setting firm lines on agency jurisdictionthat further regulatory certainty and other importantlegal values.

CONCLUSION

Given the prominent role that administrativeagencies play in the everyday governance, but theiruncertain place in our constitutional structure, theCourt should be wary of a legal standard that wouldallow agencies to increase the scope of their discretionwithout legislative action and would underminepolitical accountability. And as a doctrinal matter,affording agency determinations of their jurisdictionChevron, deference is circular because it presupposes

20

the very delegation of authority that would meritsuch deference.

For these reasons and those discussed herein, theCourt should hold that courts do not defer underChevron when reviewing an agency's determination ofits own jurisdiction and should remand these consoli-dated actions for proceedings consistent with thatdecision.

Respectfully submitted,

DAVm B. Rrv, Jn.counsel of Record

MARK W. DELAQUILLEE A. CASEYANDREW M. GRossMcBcR & HOSTETLER LLPWashington Square, Suite 11001050 Connecticut Avenue, N.W.Washington, D.C. 20036(202) 861-1500drivkin@bakerla corn

G. EDISON HOLLAND, JR..KARL R. MooRTHE SOUTHERN Coipy30 Ivan Allen Jr. Boulevard N.WAtlanta, GA 30308(404) 506-5000

Dated: November 2012