In Competitive Enterprise Institute v. DOT, by a 2-1 vote, the D.C. Circuit has upheld a Department of Transportation rule banning use of e-cigarettes on commercial passenger flights. The main question was whether Congress's 1987 law making it illegal "to smoke" on certain commercial flights justified a recent regulatory ban on using (or, some might say, "smoking") e-cigarettes in-flight. The majority opinion, by Senior Judge Raymond Randolph, held that the statute doesn't unambiguously answer the question, and then the majority deferred, under Chevron, to what it viewed as the agency's reasonable interpretation:
Although the statute does not define “smoke,” some dictionary definitions, some state laws, and some characterizations of smoking by the e-cigarette industry itself support the Department [of Transportation]. But other dictionary definitions and other state laws support petitioners. We therefore cannot say that Congress spoke to the precise question at issue. Petitioners present no arguments under Chevron’s second step “beyond those already discussed as part of step one.” See Consumer Elecs. Ass’n, 347 F.3d at 299. The Chevron-one analysis supports a reasonableness finding. So does our 2010 decision concluding that the Food and Drug Administration can regulate e-cigarettes as “tobacco products” because the liquid nicotine solution in e-cigarettes is derived from tobacco plants. See Sottera, 627 F.3d at 898-99. A “smoking prohibition” reasonably applies to products intended to enable users to inhale and exhale such nicotine.
Judge Brett Kavanaugh concurred in Judge Randolph's opinion, but noted that he would have upheld the regulation as the best interpretation of the statute even without Chevron deference. (The majority also upheld the rule against an arbitrary-and-capricious challenge and a couple procedural challenges.) Senior Judge Douglas Ginsburg dissented, saying that, in 1987, "smoking" unambiguously did not include e-cigarette use.
The decision produced a range of different views on the validity of an important regulation. The majority opinion accepts Chevron deference as settled law, but footnotes 3 and 4 of Judge Randolph's opinion question the propriety of its use in some contexts, including those that appear applicable to the e-cigarette ban. (These footnotes are reproduced after the jump.) Questioning Chevron seems to be in vogue these days, and I wouldn't be surprised if the challengers head to the Supreme Court.
Chevron arose under the Clean Air Act, but courts – including the Supreme Court and our court – have applied the doctrine when interpreting other statutes. At least as a matter of first principles, this seems problematic. The Clean Air Act provides its own procedures and standards for judicial review that differ from other statutes, such as the Administrative Procedure Act’s instruction to the “reviewing court” to “interpret constitutional and statutory provisions.” Compare 42 U.S.C. § 7607(d)(9) & (e), with 5 U.S.C. § 706. See also Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein & Adrian Vermeule, ADMINISTRATIVE LAW AND REGULATORY POLICY 250 (6th ed. 2006).
We apply the Chevron framework to this facial challenge even though violating § 41706 can bring criminal penalties. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 704 n.18 (1995); In re Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 2000).