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, AND TECHNOLOGY COMMITTEE OF THE NEW ORLEANS CITY COUNCIL, V. Pet itioner FEDERAL COMMUNICATIONS COMMISSION, et al., Respondents. On Writs Of Certiorari To The United States Court OfAppeals For The Fifth Circuit BRIEF OF THE SOUTHERN COMPANY AS AMICUS CURIAE IN SUPPORT OF PETITIONERS G. EDIsoN HOLLAND, JR. KARL R. MOOR THE SOUTHERN COMPANY 30 Ivan Allen Jr. Boulevard, N,W. Atlanta, GA 30308 (404) 506-5000 DAVID B. RIvKIN, JR. Counsel of Record MARK W. DELAQUIL LEE A. CASEY ANDREW M. GROSSMAN BAKER & HOSTETLER LLP Washington Square, Suite 1100 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 861-1500 drivkin@bakerlaw.com counsel for Amicus Curiae The Southern Company COCELE LAW BRIEF PRINTING CO. (800) 225-8964 OR CALL COLLECT (402) 342-2831 QUESTION PRESENTED Whether separation of powers principles preclude courts 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 parent corporations, and no publicly traded company owns 10% or more of the shares of the Southern Company's stock. 111 .............................................. ....................................................... ..................................................... TABLE OF CONTENTS Page TABLE OF AUTHORITIES ..... iv INTEREST OF THE AMICUS CURIAE ......... I INTRODUCTION AND SUMMARY OF THE 2 ARGUMENT 5 I. Affording Chevron Deference to an Agen- cy's Detennination of Its Own Jurisdiction Undermines the Constitutional Separation of Powers and Is Inconsistent with Chevron's Doctrinal Basis 5 IL Denying chevron Deference to Agency's Jurisdictional Determinations Is Consistent with Sound Principles of Statutory Inter- pretation 14 CONCLUSION 19 iv ......................................................................... ......................................... ................................................. ............................ ..................................................... ......................................................................... ....................................................................... ............... ........................ ...... TABLE OF AUTHORITIES Page 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.) (filed Dec. 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 ex rd. Moore, 487 U.S. 354(1988) 14, 15 Mistretta v. United States, 488 U.S. 361 (1989) 6, 8 V........................................................ .................................................................. ............................ ................................................................. ......................................................................... .................................................... ................................................................. ....................................................... ........................................................... ...................................... ...................................................................... TABLE OF AUTHORITIES - Continued Page Skidmore v. Swift & Go., 323 U.S. 134 (1944) ............................5, 15, 18, 19 Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735 (1996) 14 Steel Go. v. Citizens for Better Env't, 523 U.S. 83 (1998) 16 Talk America, Inc. u. Michigan Bell Telephone Go., 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 and Competition 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 Duke L.J.511 6 vi TABLE OF AUTHORITIES * Continued Page Antonin Scalia & Bryan A. Garner, Reading Law: 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, 33 CaL L. Rev. 219(1945) 9 Nathan A. Sales & Jonathan H. A&er, The Rest Is Silence: Chevron Deference, Agency Juris- diction, and Statutory Silences, 2009 U. IlL L. Rev. 1497 7, 10, 16 Timothy K. Armstrong, Chevron Deference and Agency Self-Interest, 13 Cornell J. L. & Pub. Pol'y 203 (2004) 9 1INTEREST OF THE AMICUS CURIAE' The Southern Company is one of America's leading electricity producers, delivering affordable and reliable energy to more than 4.4 million custom- ers through its operating companies, including the Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Compa- fly (collectively "Southern Company"). Nearly every aspect of the Southern Company's operations is regulated at the federal or state level. At the federal level, the Southern Company system is subject to regulation by, inter alia, the U.S. Environmental Protection Agency ("EPA") pursuant to the Clean Air Act and Federal Water Pollution Control Act, the Federal Communications Commission pursuant to the Pole Attachments Act, and the Federal Energy Regu- latory Commission pursuant to the Federal Power Act. At the same time, the Southern Company is a regulated public utility, subject to intensive oversight and scrutiny by public service commissions and other state agencies. The Southern Company's experience is that administrative 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 ainicus curiae represents that it entirely authored this brief and no party, its counsel, or any other entity but araicus and its counsel made a monetary contribution to fund the brief's preparation or submission. All parties have consented to the filing of this brief. Letters reflecting their consent are filed with the Clerk. 2intended to delegate to them, creating significant regulatory uncertainties that impair investment and present significant operational difficulties. The Southern Company thus strongly believes that defer- ence under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is inap- propriate to federal agencies' determination of the limits of their powers, Congress's delegation of au- thority, as determined de novo by the judiciary, and not an agency's own view as to the limits of its au- thority, should govern. INTRODUCTION AND SUMMARY OF THE ARGUMENT Chevron held that reviewing courts should defer to an agency's interpretation of a statute Congress intended it to administer. Since that decision, the Court has carefully distinguished between situations where judicial deference to agency action furthers Congress's purposes in implementing statutory schemes, such as through the enactment of legislative rules to administer statutory programs where there is no question of jurisdiction, see Chevron, 467 U.S. at 843-44, and those where deference disserves Con- gress's intent or calls into question the appropriate balance of powers among the coordinate branches of government, such as where an agency promulgates a vague regulation and then demands deference in its interpretation and application of that regulation, see Talk America, Inc. v. Michigan Bell Telephone Co., 3131 S. Ct. 2254, 2266 (2011) (Scalia, J., concurring). The Court is now faced with the question of whether an agency's determination of its jurisdiction merits deference under Chevron. It does not. Given the prominence that administrative agen- cies have assumed in the everyday governance of the United States, judicial review of their decisions should further the separation of powers principles underlying our constitutional system. Deference to an agency's view of its own jurisdiction frustrates the orderly development and predictability of the law while promoting arbitrary government. Cf Talk America, 131 S. Ct. at 2266 (Scalia, J., concurring) (discussing constitutional concerns with deferring to an 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 to determine the limits of their power, and then to exercise that power, impermissibly unites legislative and executive functions in the same body. This result is contrary to the fundamental separation of power principles on which our constitutional democracy is founded. See Talk America, 131 S. Ct. at 2266 (Scalia, J., concurring). In particular, permitting agencies to determine the limits of their own jurisdiction, by affording those determinations Chevron deference, undercuts the principle of political accountability that the separation of powers was intended to further. Chevron deference necessarily implies a protean administrative power 4than can be changed and extended within the realm of statutory silence, subject only to the procedural safeguards contained in the Administrative Procedure Act and certain organic statutes, As such, a decision deferring to an agency's extension of its own juris- diction would excuse the political branches from their responsibility to address new challenges through con- stitutionally-prescribed processes, exalting existing administrative authorities that may or may not be well suited to meet those challenges. Furthermore, as a doctrinal matter, "[a] precon- dition to deference under Chevron is a congressional delegation of administrative authority." Adams Fruit o. v. Barrett, 494 U.S. 638, 649 (1990). In decid- ing the initial question of whether or not Congress actually delegated authority - that is, jurisdiction - deference under Chevron would be illogical and unwarranted as it presumes the very delegation that justifies Chevron deference in the first place. It necessarily follows that C'hevron's rationale does not support deferring to agency jurisdictional determina- tions; if anything, Chevron suggests that the courts must police the limits of agency power even more strictly, in view of the broad discretion agencies enjoy over matters within their authority. Beyond constitutional principles, a presumption against deference to agency jurisdictional determina- tions will further both accountability and clarity in the law, helping to delineate between the areas within and without agencies' jurisdiction. 5To be sure, deference is not an all or nothing proposition. A general rule declining chevron defer- ence for jurisdictional determinations will not pre- clude reviewing courts from honoring any relevant expertise that an agency may bring to bear on ques- tions of its jurisdiction. This Court has long held that courts should defer to agency arguments with the "power to persuade," Skidmore v. Swift & Go., 323 U.S. 134, 140 (1944), and an agency will have ample opportunity to thoroughly consider jurisdictional issues and to present a reasoned and thorough legal basis for its conclusions. For these reasons, and those discussed below, the Court should hold that Chevron deference is inappli- cable to agencies' jurisdictional determinations, and should remand the instant case for proceedings consistent with its decision. ARGUMENT Affording Chevron Deference to an Agency's Determination of Its Own Jurisdiction Un- dermines the Constitutional Separation of Powers and Is Inconsistent with chevron's Doctrinal BasIs 1. "Broad delegation to the Executive is the hallmark of the modern administrative state; agency rulemaking powers are the rule rather than, as they once were, the exception; and as the sheer number of modern departments and agencies suggests, we are 6awash in agency 'expertise.'" Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 516-17. Given the prominence that administrative agencies have assumed in the everyday governance of the United States, any prim- cipled framework for judicial review of their actions must take into account administrative agencies' place in our constitutional structure. First, courts reviewing agency action must en- sure that Congress has not impermissibly delegated its 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 lawful congressional 'delegation' is not that Congress is sometimes too busy or too divided and can therefore assign its responsibility of making law to someone else; but rather that a certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action." Id. at 417 (Scalia, J., dissenting). As the legislative branch, "it is up to Congress, by the relative specificity or generality of its statutory commands, to determine - up to a point - how small or how large that degree shall be." Id. This Court has upheld statutes allowing the Executive Branch and independent agencies to exer- cise significant discretion so long as the exercise of 7that 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 of discretion that is acceptable varies according to the scope of the power congressionally conferred," id. at 475 (emphasis added). It is unquestionably Gongress that must "lay down by legislative act an intelligible principle," not the agency. Id. at 472 (internal quota- tion marks omitted). But if administrative agencies are afforded Chevron deference when reviewing their own conclu- sions on what power Congress has conferred, courts may be unable to determine whether the delegation is constitutionally permissible in the first place. This is because, in the event of an excess delegation, the agency could cure the unlawfulness "by adopting in its discretion a limiting construction of the statute" that is also reasonable - a practice this Court has expressly disclaimed. See Whitman, 531 U.S. at 472. And in light of the vesting of legislative power in Congress, not the Executive Branch (and certainly not independent agencies), it furthers our constitu- tional values to "create at least a rebuttable presump- tion that Congress has not delegated an agency authority to determine the scope of its own jurisdic- tion." See Nathan A. Sales & Jonathan H. Adler, The Rest Is Silence: Chevron Deference, Agency Jurisdic- tion, and Statutory Silences, 2009 U. Ill. L. Rev. 1497, 1539. Otherwise, there would be no effective check on agency determinations of their jurisdiction: "If an ambiguity, let alone a statutory silence, is sufficient 8to trigger Chevron deference, an ambiguous statute may become license for an agency to control the scope of its own authority, and perhaps even the ability to create regulatory authority where no such authority legitimately existed." 11. Second, in reviewing Congress's delegation of authority to an administrative agency, courts must guard against the inappropriate commingling of authority that is properly distributed among the three branches of government. "In designing [the constitutional structure], the Framers themselves considered 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 executive powers are united in the same person or body, there can be no liberty, because apprehensions may arise lest 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 Laws bk. Xl, ch. 6)). Thus, Chevron deference in the face of statutory ambiguity is generally warranted because it "does not encourage Congress, out of a desire to expand its power, 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 only because "1t]he legislative and executive functions are not combined" and Congress "has no control over 9[] implementation" but through "more precise[ I legislation." Id. But an agency goes too far where it seeks to exercise both legislative and executive ftinc- tions, claiming sole authority to establish rules, interpret those rules, and then enforce them. In that case, deference is inappropriate. See id. Affording Chevron deference to agency jurisdic- tional determinations risks a similar aggrandizement of Executive authority. "[Am agency literally has no power to act ... unless and until Congress confers power upon it." La. Pub. Serv. Coinm'n v. FCC, 476 U.S. 355, 374 (1986).2 There is a well-recognized and ever-present tendency for administrative agencies to enlarge their jurisdictions as a result of fundamental and unavoidable self-interest. See generally Timothy K. Armstrong, Chevron Deference and Agency Self- Interest, 13 Cornell J. L. & Pub. Pol'y 203 (2004). "Not only do [agencies] propose solutions to commonly recognized social problems, but they also sometimes Congress could not, of course, exercise the discretion to interpret statutes after it has enacted them, "When Congress enacts 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 granted to Congress to legislate is granted only if it is exercised in the form of voting on specific statutes." Max Radin, A Case Study in Statutory 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). 10 seek to persuade the public that there is a problem that needs solving in the first place." Sales & Adler, supra, at 1554. By contrast, in policing the limits of agency authority, the Judiciary has no special incen- tive toward aggrandizement beyond that which exists in any justiciable controversy - and perhaps less, because such disputes concern, at base, the appor- tionment of authority between the Legislative and Executive Branches, and not the Judicial Branch. Moreover, Chevron deference is a departure from the general presumption that "[ijt is emphatically the duty of the Judicial Department to say what the law is," Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and should therefore be afforded only where there is a strong inference that Congress intended that this default rule be displaced. In sum, the presumption that Congress does not intend courts to defer to administrative agencies' interpretations of their jurisdiction is a vital guard against a commingling of powers and agency self- aggrandizement. Third, denying Chevron deference to an agency's determination of its own jurisdiction furthers political accountability through the separation of powers, In enacting a statute and entrusting its administration to an administrative agency, the political branches have done no more than demonstrate the views of 11 an individual Congress and President.a "But the separation of powers does not depend on the views of individual Presidents" or Congresses. Free Enter Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3155 (2010). Instead, where power is "dif- fusetedi" away from the political branches to an administrative agency, there is a commensurate "diffusion of accountability." Id. at 3155. "Without a clear and effective chain of command, the public cannot 'determine on whom the blame or the punish- ment of a pernicious measure, or series of pernicious measures ought really to fall.'" Id. at 3155 (quoting The Federalist No. 70 (A. Hamilton)). Inherent in the judicial presumption of Chevron deference is the implicit understanding that agencies have the authority to interpret and reinterpret am- biguous statutes, consistent with their statutory mandates, This is the case even for revision to "an agency interpretation of longstanding duration," as under Chevron, "the agency is free to move from one to another, so long as the most recent interpretation is reasonable." Barnhart v. Walton, 535 U.S. 212, 226 (2002) (Scalia, J., concurring in part and concurring in the judgment). Or an individual Congress alone, if the legislation was enacted over a Presidential veto. See, e.g., Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102.385, 106 Stat. 1460(1992). 12 While Chevron deference to an agency's changed statutory interpretations may be justified where there is no question that the statute in question is one that the agency is charged to administer, the agency acts with the level of formality required by the Court's jurisprudence for Chevron deference, see United States v. Mead Corp., 533 U.S. 218, 228 (2001), and the agency's longstanding position was not an implicit assumption that the statute is, in fact, unambiguous, see, e.g., BankArnerica Corp. u. United States, 462 U.S. 122, 130 (1983), applying that degree of deference to an agency's determination of its juris- diction frustrates political accountability in address- ing new challenges that arise long after Congress has legislated and that are not clearly within an existing agency's ambit. As time passes and new policy challenges arise, it is incumbent on the institutions of government created by the U.S. Constitution to address them or to determine that they ought not to be addressed. One might even say that the key attribute of our constitutional system is to ensure that such action is supported by the representatives of a majority of the American people (the House of Representatives), those of a majority of the States (the Senate), and a coordinate branch of government also accountable to the citizenry (the President). It is wholly appropriate for an agency to exercise jurisdiction that a prior Congress and President have unquestionably granted. But in many cases, the inevitable outcome of affording Chevron deference to 13 agency determinations of its jurisdiction is to allow the political branches to avoid their obligation to make difficult choices by enacting new statutes in favor of agency action under old statutes. This problem is particularly acute where it is an inde- pendent agency asserting jurisdiction, as political accountability is then especially attenuated. Chevron helps ensure that courts do not "ossifSr" an agency's ability to act within the scope of its delegation. But our constitutional principles are best served when action to expand agency jurisdiction is held not to a heightened legal standard but to the same one that all other legislative action is held - a judicial decision on what Congress actually legislated, based on the best reading of the text of the statute.4 By contrast, affording agencies deference on the scope of their own authority removes new challenges from the constitutionally-prescribed political process, short- circuiting the safeguards of the separation of powers and democratic accountabiity 2. Beyond undermining constitutional princi- ples, deferring to an agency's determination of its jurisdiction is inconsistent with the doctrinal basis of Chevron itself. "A precondition to deference under Chevron 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 due consideration to any special expertise that an agency brings to bear on the question. 14 Smitey v. citibank (South Dakota), NA., 517 U.S. 735, 740-41 (1996). Because chevron deference is justified by a congressional delegation of adniinistra- tive authority, affording deference to an agency's determination of its jurisdiction - to the very question of whether a congressional delegation of authority edsts - puts the cart before the horse. While "Congress would neither anticipate nor desire that every ambiguity in statutory authority would 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 the fox would guard the henhouse. Instead, it is con- sistent with the doctrine underlying Chevron for re- viewing courts to determine whether a question of statutory construction is or is not jurisdictional. If the question is jurisdictional, then the Court should not defer; if the question is not jurisdictional, then the Court should normally defer under chevron. IL Denying Chevron Deference to Agency's Jurisdictional Determinations Is Consis- tent with Sound Principles of Statutory Interpretation Concerns have been raised about whether and how courts and agencies reasonably may distinguish between jurisdictional and non-jurisdictional pro- visions, but this distinction is not different in kind from 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 defer to agency decisions under Chevron in many situations due to the possibifity of overlapping jurisdictions. Finally, a decision that Chevron deference does not apply to agency jurisdiction would not preclude all deference; the application of Skidmore deference would still allow agencies to exercise the expertise they bring to such questions, while promoting greater clarity and certainty in the law. 1, Some have suggested that "there is no discern- ible line between an agency's exceeding its authority and an agency's exceeding authorized application of its authority," and that "[vlirtually any administrative action can be characterized as either the one or the other, depending upon how generally one wishes to describe the 'authority.'" Mississippi Power & Light Co., 487 U.S. at 381 (Scalia, J., dissenting). But while potentially difficult in some cases, these questions are not fundamentally different from other difficult ques- tions courts regularly do answer. Indeed, determining whether a statutory provision speaks to agency ju- risdiction is. no more complex than distinguishing provisions that concern the jurisdiction of the courts. While "Ejiurisdiction,' it has been observed, 'is a word of many, too many meanings," in this context it means power, and the Court has regularly held that courts must identify and decide the question of their own 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 Better Env't, 523 U.S. 83, 90, 93-94 (1998) (quoting United States 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 of generality," such that it is now the rare case where jurisdictional and merits issues are confused. See Steel 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 those regarding 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 at issue interpreted 47 U.S.C. § 332, which in relevant part 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 the Telecommunications Act of 1996 spoke to the preser- vation of state and local authority, there can be little doubt that the FCC was making a determination of its 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 necessarily contrary to law, simply that a court should determine if that action 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 claim of authority over a particular subject or issue. Take, for example, the current dispute between the Federal Energy Regulatory Commission ("FERC") and the Commodities Future Trading Commission ("CFTC") over alleged market manipulation in natural gas futures trading. See Hunter v, FERC, No. 11- 1477 (D.C. Cir.) (flIed Dec. 12, 2011). In that case, the CFTC and FERC are litigating which agency has jurisdic- tion * the CFTC pursuant to an assertion of exclusive jurisdiction under the Commodities Exchange Act § 2(a)(1)(A), 7 U.S.C. § 2(a)(1)(A), or FERC pursuant to § 315 of the Energy Policy Act of 2005, 15 U.S.C. § 717c-1, which amended the Natural Gas Act to prohibit market manipulation and to grant FERC certain (and contested) powers. See also Cuyahoga Valley 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 Health Review Commission had jurisdiction to maintain citations for alleged violations of the Occupational Safety and Health Act). Taking each case in isolation and deferring under Chevron to each agency's determination, a reviewing court could well conclude that the CFTC has exclu- sive jurisdiction over energy futures market manipu- lation on a CFTC-regulated exchange but that FERC also has jurisdiction over natural gas futures market manipulation. But that conclusion cannot be correct. Adjudicating the agencies' dispute will necessarily 18 involve going beyond Chevron deference to ascertain Congress'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 plain text of neither statute precludes deference to either the CFTC or FERC. Nor does the Court typically consider the enactments of a subsequent Congress to implicitly 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 Tobacco Corp., 529 U.S. 120 (2000). Instead, the conflict in Hunter presents a concrete example of how a pre- sumption favoring Chevron deference in review of agency 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 the courts or the public of useful agency expertise. A de- cision that Chevron deference does not apply merely clarifies the legal standard that a court will use in determining whether or not to affirm an action under review; in no case does it necessarily mean that an agency assertion of jurisdiction will or will not be upheld. Instead, the reviewing court will simply apply the standard canons of statutory construction in ascertaining Congress's intent. In so doing, the court would 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 of the agency's care, its consistency, formalit, and relative expertness, and.. . the persuasiveness of the agency's position?' Mead, 533 U.S. at 228 (citing Skidmore, 323 U.S. at 1394O). While the application of Skidmore deference has been criticized as "indeterminate," see Mead, 533 U.S. at 239 (Scalia, J., dissenting), there is ample reason to believe that it is appropriate in the case of agency jurisdictional determinations. It will allow reviewing courts to take into account the agency's expertise and rationale for exercising jurisdiction in determining whether that exercise is consistent with an ambigu ous delegation from Congress. At the same time, however, the courts will be the final arbiters of these decisions, setting firm lines on agency jurisdiction that further regulatory certainty and other important legal values. CONCLUSION Given the prominent role that administrative agencies play in the everyday governance, but their uncertain place in our constitutional structure, the Court should be wary of a legal standard that would allow agencies to increase the scope of their discretion without legislative action and would undermine political accountability. And as a doctrinal matter, affording agency determinations of their jurisdiction Chevron, deference is circular because it presupposes 20 the very delegation of authority that would merit such deference. For these reasons and those discussed herein, the Court should hold that courts do not defer under Chevron when reviewing an agency's determination of its own jurisdiction and should remand these consoli- dated actions for proceedings consistent with that decision. Respectfully submitted, DAVm B. Rrv, Jn. counsel of Record MARK W. DELAQUIL LEE A. CASEY ANDREW M. GRossMc BcR & HOSTETLER LLP Washington Square, Suite 1100 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 861-1500 drivkin@bakerla corn G. EDISON HOLLAND, JR.. KARL R. MooR THE SOUTHERN Coipy 30 Ivan Allen Jr. Boulevard N.W Atlanta, GA 30308 (404) 506-5000 Dated: November 2012