Goldilocks Deference?

Over the years, courts reviewing rules and decisions of federal administrative agencies have given those agencies greater or narrower latitude in interpreting enabling legislation, ranging from the “hard look” doctrine to various levels of deference under case names such as Chevron, Auer, and Skidmore. This article examines a distinct type of judicial deference that might arise only in a special subset of cases where an agency is sued by two different interested parties arguing diametrically opposed positions. For example, the EPA may be sued on a major, substantive rule by the regulated industry arguing that the rule is too restrictive and by environmental groups arguing that it is too lax. In such cases, we hypothesize that reviewing courts might exercise “Goldilocks deference,” based on the assumption that if environmental groups and regulated industries are dissatisfied, then the agency's rule must be just about right. Using an empirical dataset of 160 cases, we show that the EPA is more likely to prevail when it is sued by both sides, suggesting that the hypothesis of Goldilocks deference is at least plausible.