On January 17, the U.S. Supreme Court heard oral argument in Loper Bright Enterprises v. Raimondo, No. 22-451, an environmental-law dispute concerning fishery management in federal waters.
The case reached the court via a petition of four commercial fishing companies challenging a federal fisheries regulation, the Magnuson-Stevens Act, which provides that the National Marine Fisheries Service can require private vessels to “carry” federal observers onboard to allow for the enforcement of the agency’s regulations (federally-prescribed fishing “catch” limits being the most obvious), and can require the private vessels to pay the federal observers salaries while they are monitoring.
The D.C. Circuit Court of Appeals previously found that the agency’s view that the regulation allowed for the imposition of those obligations, in its ambiguity, was reasonable under the Chevron Doctrine. That decision and the Chevron Doctrine are now both under scrutiny.
The Chevron Doctrine originated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. et al. 467 US 837 (1984), a Clean Air Act case in which the court needed to decide if the Clean Air Act permitted the Environmental Protection Agency to define the term “stationary source” for the purpose of their enforcement of the air pollution regulation. In siding with the EPA, the court created a test that would become known as the Chevron two-step. In the first step, courts determine if Congress has spoken to the “precise question at issue,” and if they have not, the statute is deemed to be ambiguous, and courts move to step two. In that second step, courts decide whether the agency’s interpretation is “reasonable,” and will defer to the agency as long as their interpretation of the statute is not unreasonable. In practice, the doctrine has compelled federal courts to defer to a federal agency’s interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer.
The doctrine’s critics believe that it gives agencies too long of a leash when there is no affirmative power for them to act. And Justice Brett Kavanaugh used a significant portion of his time during oral argument time to highlight how such a system results in significant “shocks to the system every four or eight years when a new administration comes in” and implements “massive change” in areas like securities law, communications law, and environmental law, where new heads of agency have vastly different interpretations than their predecessors/ political counterparts.
After nearly four hours of oral argument, in which a majority of the justices appeared ready to discard the Chevron Doctrine in favor of a principle under which the Supreme Court would reclaim some of the interpretive power it gave to agencies when it created the doctrine, it appears that we could be moving to a post-Chevron world when a decision is issued this term.
While some level of deference to an agency interpretation is expected to remain, the impact of overruling — or even limiting — Chevron, will be tremendous. We will provide an additional update when the Supreme Court issues its decision.