July 27, 2023 — New Hampshire Attorney General John Formella has joined prosecutors from 26 other states in urging the U.S. Supreme Court to strike down or scale back a landmark doctrine that critics say gives federal agencies unchecked powers.
“For decades now, unelected bureaucrats at federal agencies have been using a legal principle known as Chevron deference to operate like a fourth branch of the government,” Formella said.
“We now see courts deferring to federal agencies as they bend the law, grow their size, and expand their power over the everyday lives of Americans.”
The controversy stems from a Supreme Court ruling on a 1981 Environmental Protection Agency regulation in a suit against Chevron by the Natural Resources Defense Council, which claimed the agency’s rule violated the Clean Air Act.
The Supreme Court disagreed, holding the agency’s definition was a “reasonable construction” of the law. The court created a two-pronged test for applying the “Chevron deference” in challenges to federal regulations.
Formella and the other attorneys general have filed a friend of the court brief on behalf of a New Jersey-based company that has challenged a federal agency ruling regarding its fishing activity in New England waters.
Loper Bright Enterprises sued Secretary of Commerce Gina Raimondo over a National Marine Fisheries Service regulation requiring herring fishing boats to have an extra person on board to monitor compliance with federal rules.
Fishing companies have to pay the monitor’s salary, which can run about $700 a day.
The company argued the federal agency had no authority to force it to pay for the monitor.