The Interpretive Dimension of Seminole Rock

article published in law reviewA lively debate has emerged over the deferential standard of review courts apply when reviewing an agency’s interpretation of its own regulations. That standard, traditionally associated with Bowles v. Seminole Rock & Sand Co. and now more frequently attributed to Auer v. Robbins, states that a court must accept an agency’s interpretation of its own regulations unless the interpretation is "plainly erroneous or inconsistent with the regulation." This Article argues that a court’s choice of method for interpreting regulations — including how it determines which agency interpretations are inconsistent with the regulation — may be just as important, if not more important, to the outcome of review as the standard of review the court applies. The point that the outcome of review is a function not only of the standard but also of the interpretive method is long-acknowledged in the debate over Chevron. It applies to review of the interpretation of regulations as well. If the ultimate framework of review is a problem with two important dimensions — the standard of review and the interpretive method — then there is reason to evaluate the likely effects of different methods of regulatory interpretation. The Article then argues that a purposivist approach, one which requires readings of regulations to be consistent with those in the regulation’s preamble, identifies a narrower range of acceptable readings and offers greater notice of the regulation’s meaning than relying on the regulation’s text alone. As a result, this regulatory purposivist method holds promise for addressing many of the concerns motivating challenges to the Seminole Rock/Auer standard whether or not that standard is retained