It’s not often that we write about a transgender bathroom case for our environmental blog. But we’re making an exception for Gloucester County School Board v. G.G., which could affect future challenges to EPA actions.

The appellant in G.G. has asked the Supreme Court to limit so-called Auer deference to agency actions. For nearly 20 years, the Supreme Court has held that courts must defer to an agency’s interpretation of its own regulations if (1) the regulation is ambiguous and (2) the agency’s interpretation is not plainly erroneous or inconsistent with the regulation.  See Auer v. Robbins, 519 U.S. 452, 461 (1997).  Auer grew out of the Supreme Court’s 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which held that an agency’s construction of an ambiguous statute is controlling as long as it is reasonable.  467 U.S. at 844.

EPA has frequently invoked Auer as a defense to challenges to its actions, including a challenge to its Industrial Stormwater Rule in Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1332 (2013). In that case, a divided Supreme Court invoked Auer in upholding EPA’s Industrial Stormwater Rule, which required that certain sources of storm water runoff obtain a permit under the CWA.

EPA may be less able to rely upon Auer to fight future legal challenges. The appellant in G.G. has asked the Supreme Court to consider whether courts should extend Auer deference to an agency’s interpretation of its own regulation when that interpretation is set forth in an unpublished agency letter. The case involves a letter written in response to a question posed by the appellant’s attorney. Depending on the breadth of the Court’s ruling, it could impact the extent to which courts defer to EPA opinion letters.

Some factual background about the case: G.G. was filed by a transgender high school student who challenged a school board resolution that required him—and other transgender students—to use the bathroom associated with his “biological gender.” G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 716 (4th Cir. 2016), cert. granted in part, No. 16-273, 2016 WL 4565643 (U.S. Oct. 28, 2016). G.G. argued that the resolution violated Title IX and the Equal Protection Clause.

G.G. pointed to a Department of Education (DOE) Title IX regulation and DOE’s interpretation of it to support the case. The regulation states that schools may “provide separate . . . facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.” See 34 C.F.R. § 106.33 (Section 106.33). G.G. also relied heavily on a January 2015 DOE Office of Civil Rights Letter (OCR Letter) interpreting Section 106.33 to require schools to “treat transgender students consistent with their gender identity.” G.G., 822 F.3d at 718.

The district court declined to extend Auer deference to the OCR Letter, dismissed the suit, and provided several reasons for its decision. It stated that Section 106.33 is not ambiguous. It also noted that the OCR Letter had been written specifically to clarify DOE’s “stance on the treatment of transgender students with regard to sex-segregated restrooms,” and stated that the DOE is not “permitted to disinterpret its own regulations for the purposes of litigation.” G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 132 F. Supp. 3d 736, 746 (E.D. Va. 2015) (G.G. I).

The Fourth Circuit reversed. It held that Section 106.33 was ambiguous—and the OCR Letter entitled to Auer deference—because the regulation was “silent as to how a school should determine whether a transfer individual is male or female for the purpose of access to sex-segregated bathrooms.” G.G., 822 F.3d at 721-723.

The Board filed a petition for certiorari, in part asking the Supreme Court to consider whether Auer should be overturned. The Supreme Court rejected the Board’s invitation, but agreed to consider the narrower question of whether Auer deference applies to the unpublished OCR Letter, which was “adopted in the context of the very dispute in which deference in sought.” See Petition for Writ of Certiorari, Gloucester County School Bd. v. G.G., No. 16-273 (Filed August 29, 2016). It will also consider whether the OCR Letter is “plainly erroneous or inconsistent with the regulation.” Id.

While Auer will not be overturned by G.G., its days may nonetheless be numbered. In recent years, Justices Scalia, Thomas, Alito, and Roberts all have criticized Auer and questioned its continued validity. It is likely that the justice appointed by President-elect Trump will share these criticisms.