The Case That Could Destroy the Administrative State…
In an era where environmental issues are increasingly prominent, a significant legal dispute, Loper Bright Enterprises v. Raimondo, has emerged with the potential to reshape regulatory law.
This case, brought forward by New Jersey herring fishermen, challenges the National Oceanic and Atmospheric Administration’s (NOAA) interpretation of the Magnuson-Stevens Fishery Conservation and Management Act.
At its heart, it sparks a debate over agency deference and the longstanding Chevron doctrine, also known as Chevron deference, examining its influence on the balance between executive power and judicial oversight.
This overview explores the case, the doctrine, and their wider implications.
The case…
Central to the case lies a disputed regulation mandating industry-funded at sea monitoring programs for the Atlantic herring fishery. NOAA’s at sea monitor program has been a source of controversy since its inception in 2013.
Initially proposed with government funding, the program took a dramatic turn in 2017 under the Trump administration, placing the financial burden of the monitors on the fishing industry.
This translates to a potential 20 percent reduction in the fishermen’s earnings, with daily monitor fees climbing as high as $700 – a sum that would often crown the monitor the highest-paid individual aboard the vessel.
While acknowledging the government’s legal right to require on-board observers, the fishermen vehemently contest the authority of NOAA to shift the financial burden onto their shoulders.
Their argument hinges on the contention that Congress, not the executive branch, holds the reins of cost allocation, and that NOAA’s interpretation of the ambiguous statute oversteps its statutory bounds.
Lower courts, however, have invoked the Chevron doctrine to uphold the NOAA regulation. The Chevron doctrine is a significant principle in American administrative law, originating from the 1984 Supreme Court case, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
This doctrine has had profound implications on the relationship between the judiciary and administrative agencies in the United States.
The Chevron doctrine…
The Chevron doctrine instructs courts to defer to an agency’s interpretation of an ambiguous statute if it is deemed “reasonable” and within the confines of the law. It originated from the 1984 Supreme Court case, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
In the 1970s, Congress took action to address growing environmental and energy concerns. They did so by updating the Clean Air Act in 1977, aiming to impose more rigorous standards on states that failed to meet national air quality benchmarks.
Subsequently, the Environmental Protection Agency (EPA) under the Reagan Administration adopted a new interpretation of the term “stationary source” to allow for more flexibility in regulating polluting industries.
The Natural Resources Defense Council (NRDC), an organization dedicated to environmental advocacy, stepped in to contest the EPA’s new self-prescribed authority. Their argument centered on the belief that this reinterpretation was in direct conflict with the fundamental objectives of the original Clean Air Act.
This dispute escalated to the point where it demanded legal intervention, and eventually reached the U.S. Supreme Court in 1984. The key issue before the Court was to decide if the EPA’s revised interpretation was legal or if such re-interpretations should be left to the judicial or legislative branches.
In a landmark decision led by Justice John Paul Stevens, the Supreme Court set forth a two-step framework for reviewing administrative agency interpretations of statutes:
- The Court must first determine whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter.
- If the statute is silent or ambiguous concerning the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
In the Chevron case, the Court found that the Clean Air Act did not directly address the specific issue of defining a “stationary source” and that the EPA’s interpretation was a reasonable policy choice.
Therefore, the EPA’s interpretation was upheld and the Chevron doctrine was born.
The Chevron doctrine has been a central tenant in several landmark Supreme Court cases, impacting healthcare access, tobacco regulation, administrative rulings, and shaping the very landscape of the government’s approach to ‘solving the climate crisis’.
For example, in FDA v. Brown & Williamson Tobacco Corp., where the Supreme Court dealt with the issue of the government’s authority to regulate tobacco as a drug. Applying the Chevron doctrine, the Court upheld the FDA’s regulatory power, claiming the agency had expertise in evaluating the health risks of tobacco.
This decision had far-reaching consequences for tobacco regulations.
Another case, even more consequential in today’s society, was Massachusetts v. EPA, which has profound environmental implications in defining the EPA’s ability and authority to regulate ‘greenhouse gases’.
Citing Chevron, the Court recognized the EPA’s authority to declare ‘greenhouse gases’ as air pollutants under the Clean Air Act. This landmark decision affirmed the federal government’s authority to address ‘climate change’ regardless of the science.
Yet, in Loper Bright’s case, the fishermen contend that this very deference has morphed into a dangerous shield, obscuring essential judicial scrutiny and enabling agency overreach.
They argue that Chevron has become a tool for the executive branch to bypass legislative hurdles and unilaterally address controversial issues – a claim with potentially far-reaching consequences for the separation of powers within the American political landscape.
Proponents of the Chevron doctrine argue that agencies possess deep expertise in their specialized fields, allowing them to develop nuanced interpretations of complex statutes tailored to specific regulatory contexts.
Judges, on the other hand, may lack the technical knowledge and understanding of industry practices to effectively interpret these statutes without deferring to agency insights.
The argument goes that agencies are ultimately accountable to the political process. While elected officials appoint agency heads, Congress retains oversight powers, including the ability to amend statutes or even abolish agencies if their interpretations deviate from legislative intent.
This ensures that agencies ultimately answer to the public through their elected representatives.
Arguments against the Chevron doctrine often center on concerns about the growing power of the administrative state. The Chevron doctrine has been criticized for enabling executive agencies to encroach upon the legislative authority, traditionally reserved for Congress.
This concern stems from the perception that agencies, under Chevron’s guidance, not only interpret but effectively create laws. For example, fishermen must bear the financial burden of NOAA at sea monitors.
This process, it is argued, should be the exclusive function of Congress, the elected legislative body. If agencies are allowed to determine the meaning and application of statutory provisions, the result is a blurring of the lines between lawmaking and law interpretation.
This shift of power raises questions about the separation of powers and challenges the intended checks and balances among the legislative, executive, and judicial branches.
Furthermore, the Chevron doctrine incentivizes Congress to enact legislation with vague or broad language, effectively shifting the burden of interpretation and detailed rule-making to administrative agencies.
This tendency to draft ambiguous statutes is an abdication of Congress’s essential lawmaking responsibilities. By relying on agencies to do the work of Congress, the Chevron doctrine undermines the legislative process, leading to a lack of clarity and precision in the law.
This delegation of policy-making to unelected bureaucrats is leading to inconsistent and unpredictable regulatory environments while distancing legislators from democratic accountability and oversight.
Finally, by endowing administrative agencies with extensive interpretative authority, the Chevron doctrine is viewed as a catalyst for executive overreach and the politicization of regulatory decision-making.
This power allows agencies to interpret laws in ways that might align with the current administration’s political agenda, rather than adhering strictly to statutory intent, legislative history, or strict scientific interpretations.
This leads to a fluctuating regulatory landscape, heavily influenced by the changing priorities of successive administrations. The resulting regulatory shifts can undermine the stability and predictability necessary for effective governance and the rule of law, fostering an environment where regulatory decisions are more about advancing political agendas than about consistent and fair application of the law.
Back to the case…
In their case before the Supreme Court, the fishermen, represented by former U.S. Solicitor General Paul Clement and lawyers from the Cause of Action Institute, argue that NOAA has abused its authority and that the Chevron doctrine forecloses an essential judicial check on executive overreach.
They assert that Chevron has distorted the operation of the political branches, allowing the executive branch to handle controversial issues without the need for legislative action.
During the oral arguments, it was observed that a majority of the justices seemed dissatisfied with the current state of the law regarding agency deference.
Ilya Shapiro, director of constitutional studies at the Manhattan Institute, noted that the justices seemed inclined to either significantly alter Chevron deference or possibly replace it with a different standard.
Many legal scholars are saying that the decision is a forgone conclusion and what remains to be decided is if the Chevron doctrine is completely dismantled or just ‘hollowed out’ to be essentially useless.
The implications…
Should Chevron fall entirely, the regulatory ecosystem would face a needed and complete overhaul. The immediate effect would be an increase in judicial authority to interpret laws. Courts would no longer be bound to defer to agencies’ interpretations of ambiguous statutes, leading to a more pronounced role in shaping regulatory policy.
Furthermore, Congress might likely face increased pressure to draft more precise and detailed legislation to avoid ambiguity. This would place a heavier legislative burden on Congress as lawmakers grapple with the complexities of various policy areas.
They could refer to the agencies’ expertise in their decision making but the authority would now reside with elected officials rather than appointed bureaucrats.
A scenario where Chevron is ‘hollowed out’ but not fully dismantled would see a reduction in agencies’ interpretative autonomy. Courts might still defer to agencies in certain cases, but the criteria for deference could become more stringent or narrowed.
The Supreme Court may rely more heavily on the ‘major questions doctrine’, reserving deference only for less significant or less politically charged regulatory issues. This could lead to courts taking a more active role in interpreting statutes in significant or politically sensitive areas.
Regardless of the scenario, an increase in litigation is certain, as parties become more inclined to challenge agency interpretations. One of the immediate areas that could be impacted is environmental regulation.
Agencies like the EPA, which have historically relied on the Chevron doctrine to enforce environmental protections, could see their regulatory powers diminished. This would likely increase legal challenges to environmental regulations, especially those involving pollution controls and industrial facility regulations.
In conclusion…
The case of Loper Bright Enterprises v. Raimondo, while ostensibly about fishing regulations, casts a much larger net on the American legal landscape.
It presents an opportunity to scrutinize, with a healthy dose of skepticism, the Chevron doctrine, a principle that has arguably led to a disproportionate swelling of administrative power.
This battle is more than just a fight against a specific regulatory burden; it’s a challenge to a doctrine that has allowed agencies to become quasi-legislative bodies, making policy decisions far removed from electoral accountability.
Whether the Chevron doctrine is completely dismantled or merely weakened, its alteration will be a significant step toward redefining the role of federal agencies in American governance and reducing the authority of the administrative state… and I welcome that.
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Koen Vogel
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Your article makes an effort to balloon something into a legal mega-case, when at heart I think I technically and economically side with NOAA. The herring business should manage itself: overfishing would lead to its self-destruction. But obviously they don’t have the resources. Enter NOAA who do. Why should non-herring eating taxpayers foot the bill for herrings they don’t eat? Isn’t it more in-line with capitalistic principles to ask the fisherman to foot the bill? They inevitably will add a few cents to the price of herring, i.e. pass it on to the consumers, who in turn benefit from having their herring sustainably fished. As a herring eater myself (Dutch, so obligatory) I don’t really have an issue with keeping herring fishery on a financially sound and solidly sustainable and capitalistic footing. As to overturning Chevron, I think these guys are a small fish in a big – and pretty muddy – pond.
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