Prof. Hickman's Research Debated By Second Circuit Panel

Majority and dissenting opinions in Catskill Mountains Chapter of Trout Unlimited, Inc. v. U.S. EPA, Nos. 14-1823, 14-1909, 14-1991, 14-1997, & 14-2003 (2d Cir. Jan. 18, 2017), relied on two of Professor Kristin Hickman's articles in analyzing and debating the role of statutory ambiguity when evaluating an agency's interpretation of a statute under the Skidmore standard of judicial review. Writing for the panel majority, Judge Robert Sack cited Hickman's article with Matthew Krueger ('06), In Search of the Modern Skidmore Standard, 107 COLUM. L. REV. 1235, 1280 (2007), in describing the nature of Skidmore review, concluding that the court's earlier rejection of informal guidance issued by the EPA under the Skidmore standard did not prevent the court from finding the statute unambiguous when evaluating a later agency regulation under the more deferential Chevron standard of review. Writing in dissent, Judge Denny Chin cited the same article as well as Professor Hickman's article with Thomas Merrill, Chevron's Domain, 89 Geo. L.J. 833 (2001), also in discussing Skidmore analysis and arguing that the EPA's interpretation of the regulation at issue was contrary to the plain meaning of the statute.