United States v. Riverside Bayview Homes

Additional Material Related to

Primary Discussion Question 1

What degree of deference does the Court give the Corps in Riverside Bayview Homes?

How are the various standards of deference set forth by the Court distinct or even inconsistent?

The primary Web page for Primary Discussion Question 1 eventually gleaned from the opinion a short list of descriptions of permissible agency action:

  1. reasonable and not in conflict with the expressed intent of Congress {1st sentence of 1st passage}
  2. reasonable, in light of the language, policies, and legislative history of the Act {2nd sentence of 1st passage}
  3. reasonable based on the agency's technical expertise {1st sentence of 2nd passage}
  4. cannot be said to be unreasonable {from 1st sentence of 2nd passage or from 2nd sentence of 3rd passage}

The first Web page set forth a way to unify these standards into a single standard:

An agency's interpretation of a statute will stand if that interpretation is reasonable in light of (a) the language, policies, and legislative history of that statute; and (b) the agency's technical expertise.

This page emphasizes the differences and potential inconsistencies among these formulations.  It does so by analyzing the assumptions made in collapsing the four-standard gleaning set forth above into the bold-faced single standard set forth just above.

Standard 1 vs. Standard 2.  Standard 1 is "reasonable and not in conflict with the expressed intent of Congress."  Standard 2 is "reasonable, in light of the language, policies, and legislative history of the Act."  The bold-faced single standard contains no language uniquely from Standard 1, on the assumption that Standard 2 is equivalent and more detailed.  That assumption contains two sub-assumptions:

  1. that "the express intent of Congress" is equivalent to "the language, policies, and legislative history of the Act"; and
  2. that "reasonable and not in conflict with..." is equivalent to "reasonable, in light of ...."

The first equivalence seems pretty plausible.  After all, the express intent of Congress presumably occurs through the language, policies, and legislative history of the Act.  Those who favor emphasizing the language of the statute itself, as opposed to other portions of the legislative history, might consider the express intent of Congress to be only the language of the Act (and those policies expressly identified in the language of the Act), rather than also including the expressions of intention of only part of Congress that committee reports (involving only committees) and statements on the floor (involving only individual members) entail.   Nonetheless, the Riverside Bayview court clearly believes in the utility of all portions of the legislative history, see Primary Discussion Question 2, so it seems fairly reasonable in the context of this particular case to consider "the express intent of Congress" to be equivalent to "the language, policies, and legislative history of the Act."

The second equivalence is more problematic, at least grammatically.  Using the construction "reasonable and not in conflict with..." implies that there is something in addition to reasonableness that is at issue, while the construction "reasonable, in light of ..." implies that only reasonableness is at issue (although a reasonableness qualified in a particular light).   Since the Court does not immediately elaborate on what kind of reasonableness it had in mind in the first standard that was independent of the express intent of Congress, however, it is rather difficult to say just what "reasonableness" in the first Standard independently means.  (The Court may by "reasonable" mean "reasonable in light of the technical expertise of the agency," which would make that portion of  Standard 1 equivalent to Standard 3, but there's no indication in the passage containing Standard 1 that the Court has an agency's technical expertise as the only criterion of reasonableness.)

(One must also assume, to make the second equivalence above, that "not in conflict with" is equivalent to "in light of."  In terms of tone, "not in conflict with" seems to validate a slightly broader range of behavior than "in light of," but that's as much as we'll say about this sub-equivalence.)

Standard 2 vs. Standard 3.  The two formulations that seem most clearly different from one another are Standards 2 and 3.  Using the language, policies, and legislative history of the Act as a basis of deference involves a very different inquiry from using the technical expertise of the agency.  The legislation-oriented view involves examining texts generated by Congress in connection with the statute at issue.   The expertise-oriented view presumably involves examining scientific evidence, whether there is contrary scientific evidence omitted from the agency's consideration, the credentials and reputation of those producing the evidence, and so forth.  An legislation-oriented inquiry is legalistic, in other words, while the expertise-oriented inquiry is scientific. 

(There is a possibility that courts will consider agencies to have technical expertise in the very act of interpreting complex statutes, as opposed to technical expertise in scientific or policy-oriented analysis.  In that case, there would be no difference between Standards 2 and 3.  But the Riverside Bayview court seems to have scientific expertise in mind--at least if one is to take the Court at face value, since the Court is discussing hydrology when it refers to the agency's technical expertise.)

The bold-faced single standard handles this difference between the legalistic inquiry of Standard 2 and the scientific inquiry of Standard 3 by simply assuming that the Court intended for both kinds of inquiry to be relevant to the analysis.  In other words, the two standards seem so distinct that the Court is presumed to consider them as alternatives.  That may seem like a plausible assumption, but you should realize that it is an assumption.

Standard 4 vs. Standards 1, 2, and 3.  Standard 4 uses the formulation "cannot be said to be unreasonable," while the other Standards use the word "reasonable."  Are these equivalent formulations?  If one were to compare the phrase not unreasonable with the word reasonable, one might assume that these are equivalents.  If something must either be reasonable or be unreasonable, then anything that is not unreasonable is reasonable.  But legal analysis emphasizes presumptions (and, in trial courts, burdens of proof) in a way that may at least make the phrase "cannot be said to be unreasonable" a little bit different from "can be said to be reasonable."  

Suppose that, for some reason, you just cannot say whether something is reasonable or unreasonable.  The case might be too close to call, or there might be no evidence whatsoever in the record that is relevant to reasonableness.  Under Standard 4, the agency's action would stand: it cannot be said to be unreasonable.  Under the other Standards, the agency's action would not stand: the agency's action cannot be said to be reasonable.

This difference is only relevant to the degree that you believe that there are situations where there is no evidence on reasonableness or where the evidence is in such perfect balance that it is impossible to place the case on one side of the reasonableness line or the other.  Presumably such circumstances are rare.  But if they ever do occur, then the difference between Standard 4 and the other standards would be relevant.

So, to summarize, the bold-faced single standard comes from assuming that

To the degree that any of these assumptions are unpersuasive, the bold-faced single standard distorts the Court's varied statements of the standard of deference.

One thing to note is that multiple descriptions of the proper deference standard almost always constitute (a) a headache for those seeking crystal clarity and (b) a potential boon for advocates. 

If the four formulations above are different, then you cannot say that there is "a" place where the Court sets forth "the" standard for deference to agency interpretation of a statute set forth in Riverside Bayview Homes.  That presumably bothers those who seek crystal clarity.  At a minimum, one is forced to go through some analysis of whether the multiple formulations are equivalent.

Multiple formulations can be a boon for a good advocate, however.  A good advocate will directly quote the particular statement of the standard that is most beneficial to her client on the facts of the case.  Presumably that advocate wishes as many formulations of the standard as possible to give her the greatest opportunity to pick the perfect formulation.  (The good advocate might wish for just one standard that perfectly fits the facts of her case, of course, but that seems to be asking a bit much.   It also runs the risk that the advocate's next client will need a different formulation but there will be but one formulation form which to choose.  A multiplicity of formulations allows the good advocate to have a string of cases on the topic and pick the best formulation in each case while her less capable opponents flounder about in the sea of choices.

Return to the primary page discussing deference (the Primary Discussion Question One home page, if you will).

Return to the Riverside Bayview Homes materials home page.

Return to the Re-Authorizing the Clean Water Act home page.

Return to the Environmental Drafting and Negotiating course's home page.

For corrections, comments, and questions, please e-mail John Setear.

This page was last updated on 03/09/99.