The Supreme Court could usurp the power of federal agencies through dual battles over the hunting rule

The Supreme Court could usurp the power of federal agencies through dual battles over the hunting rule

Washington – They can be pickled, smoked or used as bait, but on Wednesday, the skinny silver fish known as herring will be at the center of a dispute that could end with the U.S. Supreme Court reeling in the ability of federal agencies to regulate the environment. Health care and the workplace.

At the heart of the legal battle is a 40-year-old decision that, if erased by the court’s expanded conservative majority, could lead to the shrinking of the so-called administrative state, long a goal of the conservative legal movement.

Known as “Chevron deference,” after a landmark 1984 ruling involving the oil and gas giant, the doctrine requires courts to defer to the agency’s reasonable interpretation of vague laws passed by Congress. Critics of the framework say it gives federal bureaucrats too much power to craft regulations that affect large swaths of American life.

On Wednesday, the court will hear two appeals of a 2020 regulation that requires fishermen in the Atlantic herring fishery to pay monitors who collect data and oversee operations while at sea.


Fishing vessels have taken federal observers on trips for decades. But under the program enacted by the National Marine Fisheries Service during the Trump administration, they had to foot the bill for monitoring, which costs more than $700 a day, according to government estimates. The authority implemented the regulation under the 1976 law.

But for fishermen, a government that forces them to pay for monitors at sea is like a city asking residents to foot the bill for a police officer who rides in their cars and issues them speeding tickets, according to Megan Lapp, Seafreeze’s fisheries coordinator. . The company operates two vessels, F/V Relentless and F/V Persistence, In the herring fishery in the Atlantic Ocean.

She added: “This is an inherently government function, and we have no problem receiving observers as Congress requests.” “But Congress didn’t ask us to pay for it, so that’s a big difference.”

Seafreeze’s fishing style allows its vessels to stay at sea longer than others, typically 10 to 14 days, and has the flexibility to target other species, such as mackerel or squid, in addition to herring. But the regulation means they could be on the hook for a federal monitor, even if they catch little or no herring. If they choose to leave the dock unattended and there is a need to do so, they will not be able to catch herring on that trip.

“This could push us out of these fisheries,” she said. “We’ve done it by law, sustainably, throughout the nine yards. But we’re basically financially excluded from this fishery unless we want to pay for the herring program with revenue from other species. That makes it financially prohibitive to fish for herring or have that option.”

Herring are unloaded from a fishing boat in Rockland, Maine, on July 8, 2015.


Hunters go to court

Endorsed by the National Marine Fisheries Service, part of the Department of Commerce, the program aims to have federal observers, collecting data necessary for fishery conservation and management, on 50% of trips made by licensed vessels in the Atlantic herring fishery. But if there are not enough government-funded observers to achieve this goal, the National Marine Fisheries Service can decide to waive monitoring for a trip or require an industry-funded observer to fill the gap.

One month after the federal government finalized the rule, Seafreeze filed a lawsuit against the service, alleging that the agency did not have the authority to mandate industry-funded monitoring.

A federal district court in Rhode Island ruled in favor of the federal government, applying a two-step framework deference to Chevron.

U.S. District Judge William Smith concluded in September 2021 that under the first step of Chevron’s analysis, the federal law underlying the new surveillance rule was ambiguous. It also concluded that the National Marine Fisheries Authority’s decision to require fishermen to pay observers’ fees was permissible.

The U.S. Court of Appeals for the First Circuit upheld the lower court’s decision, determining that the 2020 rule was a “permissible exercise of agency authority” under Chevron and was lawful.

The case in Rhode Island is similar to a separate dispute filed in federal court in Washington, D.C., in February 2020 by four New Jersey commercial fishing companies involved in the Atlantic herring fishery.

In this case, a district court concluded that the 1976 law unambiguously grants broad authority to the National Marine Fisheries Commission to establish regulations necessary to implement conservation and fishery management measures.

A divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit concluded that the law is not “entirely clear” on whether the government can require ships to pay for monitoring at sea, and proceeded with the second step of Chevron’s framework. It then decided that the Fisheries Service’s interpretation of the law was a “reasonable” way to address “the silence on the issue of the cost of monitoring at sea” and deferred to the agency.

The case filed in Washington reached the Supreme Court first, and the justices agreed in May that they would decide whether to invalidate the Chevron ruling or clarify the framework. Judge Ketanji Brown Jackson recused herself from the case because she was a member of the three-judge panel that heard oral argument before the D.C. Circuit.

Several months later, in October, the Supreme Court agreed to review the First Circuit’s decision. All nine judges will participate in this case.

The industry-funded monitoring program was suspended in April 2023 due to a lack of federal funding, and fishermen were compensated.

The US Supreme Court in Washington, D.C., on Friday, January 5, 2024.


Respect Chevron and the Supreme Court

The concept of Chevron deference stems from the Supreme Court’s landmark 1984 decision in Chevron v. National Resources Defense Council, which included a regulation issued by the Environmental Protection Agency under the Clean Air Act.

Since then, Chevron has been applied by lower courts in thousands of cases. The Supreme Court has invoked it to support agencies’ interpretations of laws at least 70 times, but not since 2016.

Many in the conservative legal movement have called for years to overturn the 40-year-old precedent, arguing that it violates due process and conflicts with federal judges’ duty to apply their independent judgment when evaluating federal laws.

“What happens under Chevron, at least in administrative law cases, is that the judge is forced to make a prior commitment to put a thumbs down in favor of the government’s interpretation of the law,” said Mark Chenoweth, president and chief legal officer of Chevron. Officer with the New Alliance for Civil Liberties. “And that doesn’t happen anywhere else, really, in our system — that you go into court knowing that even if the judge thinks you have a better interpretation of the law than the agency, you’re still going to lose, as long as the judge “believes the agency’s interpretation is reasonable as well.” “This does not comply with due process.”

The New Civil Liberties Alliance, with support from conservative donors, filed the Rhode Island case on behalf of Seafreeze.

But advocates of deference to the agency warned that dropping Chevron would threaten the agencies’ ability to craft regulations in areas such as the environment, nuclear energy or health care, and make it harder to implement laws passed by Congress.

“I don’t think it’s an exaggeration to say that what’s at stake in these cases is the continued ability of the administrative state to survive and the government to govern,” said Claire Pastore, a law professor at the University of Southern California. “The question here is how specific Congress should be in explaining what it wants or needs.”

Pastore, who worked for more than 20 years as an attorney at a public interest law firm, acknowledged that Chevron’s deference “burdens the agency in its favor.” But she said she was concerned that if the Supreme Court ended the doctrine, it would not replace it with a standard that still allows deference in some circumstances.

“Abandoning Chevron could result in the Court itself having more power to make decisions. I also worry that the Court will simply say this regulation is invalid and leave us in a vacuum, or worse, say Congress must address This is the matter and the agency can do it. She said: “Do not act until Congress does, knowing full well that it is impossible for Congress to address every ambiguity in every law,” noting that such a step “could bring the entire administrative state to a standstill.”

To some extent, Pastore said, “The issue is: Do you trust the agencies more or do you trust the courts more? Sometimes the answer to that is it depends on who the court is and who the agency is.”

The Biden administration said Chevron is a “fundamental principle of administrative law” and “gives appropriate weight to expertise, often of a scientific or technical nature, that federal agencies can draw upon in interpreting federal laws.”

“Chevron has been invoked in thousands of decisions to support the agency’s reasonable interpretation of the law,” Solicitor General Elizabeth Prelogar wrote in a Supreme Court filing in the Rhode Island case. “Private parties have organized their affairs by reasonably relying on an established body of law, making investment decisions and entering into contracts informed by the agency’s interpretations upheld under Chevron. Chevron’s overreach would thus create ‘disruption.’

But Chenoweth, who served on the Consumer Product Safety Commission, said the idea that judges can’t handle the complexity of the cases in which Chevron is called is “absolutely false.”

“Most of the time, administrative law issues boil down to legal interpretation, which is the expertise of judges, not the expertise of the executive,” he said.

In its last term, the Court has shown that it does not hesitate to erase old precedents. Judges Reversing the landmark 1973 Roe v. Wade decision Which established the constitutional right to abortion in June 2022, and He ended the use of sweat As a factor in university admissions last year.

Additionally, Justices Clarence Thomas and Neil Gorsuch have suggested in recent years that it is time to get rid of the Chevron Doctrine.

“At this late hour, the entire project deserves a tombstone that no one can miss,” Gorsuch wrote in a November 2022 dissent. “We must frankly acknowledge that Chevron did not and could not back down from the judicial duty to provide an independent arbiter of the meaning of the law in cases before the nation’s courts. I hope that one day soon we will be able to do so.”

A court decision is expected by the summer.

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