It is nearly impossible to conceive of any significant environmental regulation over the past four decades that has not involved the application of the “Chevron deference.” It’s one reason conservatives and others, e.g., the fossil fuel industry, are now rooting for the US Supreme Court (SCOTUS) to strike down the deference—in the name of the separation of powers set out by the US Constitution.
The instruments of the deference’s possible destruction will be the high court’s decisions in two cases involving herring fishing. The cases, Loper Bright Enterprises v. Raimondo and Relentless Inc. v. US Department of Commerce could be to administrative law what Dobbs v. Jackson Women’s Health has been to as a woman’s right to an abortion. A decision is expected this summer.
The Supreme Court agreed to hear the cases, but the only question it will be addressing is whether to reverse or refine the decision in the 1984 case of Chevron v. NRDC that gave rise to the doctrine named for it. It will not be deciding whether the $700 daily charge to herring fishing boat owners to cover the cost of inspectors is reasonable.
This is Part 1 of a three-part series on the fate of the Chevron deference in the hands of a decidedly conservative US Supreme Court (SCOTUS). The Loper and Relentless cases are being used by the high court as vehicles to consider the fundamental relationship(s) between the three branches of government and who has the power to do what—going so far as to question whether and how Congress can direct a federal agency to implement its acts.
Notwithstanding conservative concerns that Democratic administrations have a habit of “weaponizing” the federal government to force a “woke” agenda on the country—especially when it comes to climate matters—there are practical matters for SCOTUS to consider. Part 2 of the series goes into greater depth on how the current system operates and the downsides of radically changing things. Although the current system is imperfect, it works. Could it be improved? Absolutely.
Part 3 looks at the court’s composition and raises the possibility that the betting in favor of SCOTUS completely doing away with the deference may be wrong. The swing votes in these cases will be Chief Justice Roberts and Justice Coney Barrett, who may have reasons other than the case law to vote with the liberals on the court in maintaining the deference—albeit a bit tightened up.
Context is critical
As with nearly everything else in today’s political environment, those who generally favor or oppose the deference mostly break along party lines. Former President Trump and MAGA-aligned and unaligned conservative politicos see striking down Chevron as the way to deconstruct the administrative state. It’s wishful thinking—even a one-day-dictator needs a bureaucracy to implement his orders.
The outcome of the Loper and Relentless cases will significantly impact administrative law. How significant depends on whether the high court votes to overturn Chevron or keep the deference in a less capacious form. Of the possible outcomes, the least likely is leaving things as they are.
Context is critical. The herring cases are not the only possible gut punches the administrative state may have to absorb. The plaintiffs in US Securities and Exchange Commission (SEC) v. Jarkesy (Jarkesy) claim that the use of administrative law judges denies them their constitutional right to a jury trial and is an improper delegation of congressional powers.
Together, Loper, Relentless, and Jarksey could radically change how things are done by the administrative state and by whom.
Opponents of Chevron believe in the sanctity of the Constitution’s separation of powers[i] into three separate but co-equal branches—executive, legislative, and judicial. They claim that the deference Infringes on the powers of Congress to make the laws and the courts to interpret them.
Deference opponents blame Congress for the lack of clarity in legislation and decades of dysfunction. David French attributes the problem to Congress having “shirked” its duties and allowing presidents and the courts to fill “the power vacuum.”
Perhaps in an idealized world, the boundaries of the branches are always clear and distinct. In practice, not so much, and not simply because of bad legislative writing. Although separate, the branches are more co-dependent and cooperative than separate and equal.
The traditional characterizations of the powers of each branch are:
- The legislative branch is responsible for enacting the laws and appropriating the money necessary to operate the government.
- The executive branch is responsible for implementing and administering the public policy enacted and funded by the legislative branch.
- The judicial branch is responsible for interpreting the Constitution and laws. Congress may enact legislation, but they neither implement nor administer congressional acts. Those tasks are left to the executive branch.
Neither are the branches co-equal in their capacities to implement complex acts that require a deep understanding of the detailed technical and scientific data needed to craft implementing rules. Executive branch agencies have access to required subject matter experts.
The boundaries between the legislative and executive branches begin to blur between enactment and implementation. But what of the judiciary?
Judges and justices interpret the Constitution and the laws enacted by Congress. However, they do not enforce their decisions. It, too, is a task left to the executive branch. Rather than being entirely separate, the branches are at different times in partnership—each with their own duties that include assisting the other units in performing their constitutional responsibilities. And, as with the Congress, the judicial branch lacks the technological and scientific knowledge needed to deal with many of today’s growing complexities. At different times, one or the other branch dominates.
The current system is hardly perfect, but it works. Agency interpretations of ambiguous legislative directives must be reasonable to pass judicial muster. I know of no other circumstance in which the government is directed to implement laws “reasonably.” Moreover, it’s not as if Congress writes agencies a blank draft and never checks back with them. And, all along the way, aggrieved parties—their allies and friends–have recourse to the courts.
A total reversal of Chevron will likely unleash a large bevy of new challenges and petitions to consider older cases in a newer light. The timing of a complete reversal couldn’t come at a worse moment politically.
A reversal of Chevron promises to roil further political waters already churning because of the culture wars and hyperpartisanship. Citizen trust in all three branches is at historic lows. Preservation (in some form) could help calm those waters—raising the question of whether justices should be at all influenced by political and practical realities.
First, a discussion about the deference is in order.
The Chevron deference
For 40 years, courts have applied Chevron as binding precedent, citing the landmark case in more than 19,000 federal court decisions[ii].
The 1984 decision in Chevron USA v. National Resources Defense Council (NRDC) held “that when a federal statute is ambiguous or silent, courts should defer to an agency’s interpretation of that law so long as it is reasonable.” The belief is that executive agencies have the requisite collective knowledge and experience—unlike members of Congress and federal judges—to undertake the often-multi-year process of rulemaking. Think of it as having created a rebuttable presumption in favor of the government.
Since the Chevron decision was first announced, the doctrine has been considered settled case law. Its application in 17,000 to 19,000[iii] cases goes far beyond energy and environmental matters and includes federal regulations across all sectors, including healthcare, patents, transportation, and national security. Indeed, the whole of government.
According to the Office of the Federal Register, the average number of final rules posted annually is between 3,000 and 4,500. Not all of the regulations are major ones. Still, all must follow the Administrative Procedures Act (APA) transparency provisions and solicit public input, which can be arduous. Before the Clean Power Plan (CPP) rules were finalized, the Environmental Protection Agency received 4.3 million comments during the six months public input was solicited.
Dead doctrine walking?
Given the alacrity with which the now solidly conservative high court dismisses decades of judicial precedence, e.g., Roe v. Wade, a total reversal of Chevron would not be surprising. Pressure to strike down the doctrine is coming from the right.
As reported by Ann Marimow in the Washington Post, the Loper, and Relentless cases are “backed by conservative legal organizations — the Cause of Action Institute and New Civil Liberties Alliance — that have received millions of dollars from the Koch network, founded by billionaire industrialist Charles Koch and his late brother, David Koch.”
“Overruling Chevron would be a convulsive shock to the legal system.-US Solicitor General Elizabeth Prelogar
Under the leadership of West Virginia’s attorney general, Patrick Morrisey, 27 Republican attorneys general have filed a friend of the court (amicus) brief urging the high court to overturn the deference.
According to Morrisey: “Congress’s words matter…. And agencies shouldn’t be permitted to take advantage of statutory silence or ambiguity to extend their powers beyond what Congress intended.”
“When people think about the major problems of the administrative state, Chevron deference should be at or near the top of the list.-Patrick Morrisey
Although a target of today’s conservative culture warriors, the deference didn’t start that way. Justice Antony Scalia—an icon of the right—defended the deference in a 1989 article stating clearly that the “broad delegation to the Executive is a hallmark of the modern administrative state” and provides a dependable “background rule of law against which Congress can legislate.” (Emphasis added)
Hard of herring?
The Loper and Relentless plaintiffs are challenging a regulation adopted by the National Marine Fisheries Service in 2020 while Trump was president. The rule required herring fishermen to carry and pay for federal observers at a cost to the boat owner of around $700 per day.
The Magnuson-Stevens Fishery Conservation and Management Act (MSA) regulates the Atlantic herring fishery industry to prevent overfishing and promote conservation. For an industry with slim profit margins, paying the observers can “reduce annual returns by up to 20 percent.”
The US Court of Appeals for the District of Columbia Circuit denied the Loper plaintiffs’ claim that the Fisheries Service lacked the authority to issue the rule. Judge Judith Rogers wrote for the majority that “Congress delegated broad authority to an agency with expertise and experience within a specific industry.”
The opinion also said the court’s review “is limited to the familiar questions of whether Congress has spoken clearly, and if not, whether the implementing agency’s interpretation is reasonable.” The appellate court ruled in favor of the Fisheries Service.
The Relentless case was decided by the US Court of Appeals for the First Circuit[iv] and is nearly identical to Loper in the circumstances and the legal questions involved. SCOTUS joined the two cases because Justice Ketanji Brown Jackson was recused from Loper having participated in the case before her elevation to the high court. As in Loper, the three-judge panel in Relentless agreed with the DC appellate court’s decision.
SCOTUS has announced that it will only be looking at issues of the delegation and the deference as it was argued in the 1984 landmark case. The court won’t be judging whether the rule charging the daily fees was proper.
Part 2 of the series focuses on the constitutional and practical power sharing arrangements between the branches and how a decision in the herring lawsuits could strip away the quasi-judicial powers of agencies and flood the courts with thousands of more cases it would be ill-prepared to handle.
[i] Articles I, II, and III
[ii] As cited in report by Center for American Progress. They based the count on LexisNexis searches conducted on November 27, 2023. See LexisNexis, “Homepage,” available at https://www.lexisnexis.com/en-us/gateway.page (last accessed November 2023).
[iii] Note that there are discrepancies in the number of actual cases impacted by the Chevron deference. Other estimates are as low as 17,000.
[iv] The First Circuit includes the Districts of Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.
