Saving Seafood

This humble fish may help the Supreme Court weaken the ‘administrative state’

January 16, 2024 — A slender, silvery fish, sold for bait and canned as sardines, has the potential to play an outsize role in weakening the power of federal agencies to regulate vast areas of American life — overturning long-standing Supreme Court precedent in the process.

But the case before the high court this week is not really about the herring.

For 40 years, courts have generally deferred to the judgment of federal agencies when it comes to turning laws passed by Congress into detailed regulations designed to protect the environment, consumers and the workplace.

They did so because of the precedent set in 1984 in Chevron U.S.A. v. Natural Resources Defense Council, which requires judges to defer to the reasonable interpretation of federal agency officials charged with administering ambiguous federal laws.

But as the court has moved to the right in recent years, the conservative majority has been less likely to invoke that ruling, which outside groups have long seen as giving unaccountable bureaucrats too much power.

Now the high court is reviewing a pair of challenges to federal rules requiring commercial fishermen to pay for at-sea monitors — cases that could lead to the demise of Chevron, much as Dobbs v. Jackson Women’s Health Organization in 2022 overturned the historic Roe v. Wade ruling and eliminated the nationwide right to abortion.

Read the full article at the Washington Post

Supreme Court will consider overruling landmark Chevron deference decision in a fishy case

January 13, 2024 — The U.S. Supreme Court is about to take up one of the biggest cases of the term not involving former President Donald Trump. On Jan. 17, the justices will consider whether they should overrule a landmark 1984 decision often requiring courts to defer to federal agencies’ reasonable interpretations of ambiguous statutes.

The precedent is Chevron USA v Natural Resources Defense Council, which has been under fire from conservatives and some members of the court for years, and hasn’t been relied on by the Supreme Court itself since at least 2016.

But lower courts still must apply it, and so-called Chevron deference affects vast swaths of the regulated U.S. economy. The two cases up for review involve a relatively small segment of the economy—herring fishing off the Atlantic coast.

When the court granted review in Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce, it made clear in orders that it was only taking up the question of whether Chevron should be overruled or clarified. It did not accept review of the underlying statutory question affecting herring fishing—whether a federal agency correctly interpreted a statute to require fishers to pay the cost of monitors who ride their boats on roughly half of their outings.

“The statutory-interpretation issue is actually pretty fun,” says Christopher J. Walker, a law professor at the University of Michigan and an expert on federal administrative law. “It’s about fishing and whether fishing boats have to pay for monitors on the boat. But it also doesn’t really matter much to the case because the case is squarely presenting the question of should the court overrule Chevron deference, or should it at least accept that some new limitation that silence in the statute does not mean that Chevron deference is available.”

Read the full article at ABAJournal 

A group of commercial fishermen have ended up before the Supreme Court

December 7, 2023 — For years, fishermen like Bill Bright and his colleague Wayne Reichle have been required to take federal observers on their boats when they set out into the North Atlantic in search of herring. Those observers are making sure fishermen are catching what they’re legally allowed, most of it in efforts to prevent overfishing.

But back in 2020, federal regulators moved to require herring fishermen to directly pay observers salaries, a move that could potentially cost herring fishermen up to $700 per day.

By some estimates, that could top 20% of revenue from a fisherman’s catch.

“From the beginning, the most important thing for us was the ability to continue fishing and continue operating the way we’ve operated for a number of years,” Wayne Reichle said.

As a result, Reichle, Bright and a half dozen other fishermen sued the federal government.

A case that has rippled so far beyond the shores of New Jersey that it has now ended up before the Supreme Court. Loper Bright Enterprises, Inc. v. Gina Raimondo is set to be argued before the court in January 2024.

“From the beginning, the most important thing for us was the ability to continue fishing and continue operating the way we’ve operated for a number of years. It’s about us being able to maintain our livelihoods and operations,” Reichle said.

Read the full story at KSBY

Supreme Court to hear major case on limiting the power of federal government, a long-term goal of legal conservatives

May 2, 2023 — The Supreme Court agreed Monday to reconsider long held precedent and decide whether to significantly scale back on the power of federal agencies in a case that can impact how the government addresses everything from climate change to public health to immigration.

Conservative justices have long sought to rein in regulatory authority, arguing that Washington has too much control over American businesses and individual lives. The justices have been incrementally diminishing federal power but the new case would allow them to take a much broader stride.

The justices announced they would take up an appeal from herring fishermen in the Atlantic who say the National Marine Fisheries Service does not have the authority to require them to pay the salaries of government monitors who ride aboard the fishing vessels.

Their action means they will reconsider a 1984 case – Chevron v. Natural Resources Defense Council – that sets forward factors to determine when courts should defer to a government agency’s interpretation of the law.

Read the full story at CNN

Supreme Court to Hear Challenge to NOAA Requirement that Vessels Pay Monitoring Fees

May 1, 2023 — The following was released by Cause of Action Institute:

The Supreme Court announced today it will take up the case of New Jersey fishermen who are challenging the federal government’s attempt to unlawfully force them to pay monitoring fees without congressional approval—a case that gives the Court an opportunity to review and overrule the Chevron deference precedent. Critically, the Court granted only on Question Presented 2, which means it will directly address the future of Chevron.

The justices will review Loper Bright v. Raimondo. The fishermen, represented by former Solicitor General Paul Clement and lawyers from Cause of Action Institute, petitioned the Court in November to overrule a funding scheme that would force them to hand over 20 percent of their pay to third-party at-sea monitors they must bring on their boats—a mandate that Congress never approved by statute.

Amicus briefs in support of the fishermen’s case were filed by 38 organizations and individuals, including one signed by 18 state attorneys general.

“The Supreme Court has an opportunity to correct one of the most consequential judicial errors in a generation. Chevron deference has proven corrosive to the American system of checks and balances and directly contributed to an unaccountable executive branch, overbearing bureaucracy, and runaway regulation,” Cause of Action Institute counsel Ryan Mulvey said.

“These fishing families and all those seemingly living at the mercy of Washington deserve better,” he said. “Cause of Action Institute has always fought on behalf of vulnerable Americans, and we’re hopeful this case will provide the vehicle to end Chevron deference.”

“We are delighted that the Court took this case not only to potentially deliver justice to these fishermen, but also to reconsider a doctrine that has enabled the widespread expansion of unchecked executive authority. We look forward to our day in court,” Clement said.

“We are grateful to the Supreme Court for taking our case. Our way of life is in the hands of these justices, and we hope they will keep our families and our community in mind as they weigh their decision,” said Bill Bright, a New Jersey fisherman and plaintiff in the case.

Cause of Action Institute has compiled background information here, including links to filings, amicus briefs, and a short video featuring interviews with the NJ fishermen.

Supreme Court move could spell doom for power of federal regulators

May 1, 2023 — A legal doctrine long despised by conservatives for giving federal regulators wide-ranging power is making yet another march to the gallows at the Supreme Court.

The high court announced Monday that it is taking up a case squarely aimed at killing off the nearly-four-decade-old precedent that has come to be known as Chevron deference: the principle that courts should defer to reasonable agency interpretations of ambiguous provisions in congressional statutes and judges should refrain from crafting their own reading of the laws.

Overturning the doctrine would have major implications for the Biden administration’s climate agenda. It would complicate the administration’s efforts to tackle major issues such as climate change via regulation, including possibly derailing the Environmental Protection Agency’s push to mitigate carbon emissions from the electricity and transportation sectors — the two highest polluting industries in the United States.

The Chevron doctrine has “been in a coma for a while, so we’ll see whether they want to revive it or take it off life support,” said David Doniger, who in 1984 argued that case before the Supreme Court for the NRDC.

Read the full story at Politico

Supreme Court Takes Up Case That Could Curtail Agency Power to Regulate Business

May 1, 2023 — The Supreme Court agreed on Monday to take up a case that could make it easier to curtail the power of administrative agencies, a long-running goal of the conservative legal movement that could have far-reaching implications for how American society imposes rules on businesses.

In a terse order, the court said it would hear a case that seeks to limit or overturn a unanimous 1984 precedent, Chevron v. Natural Resources Defense Council. According to the decision, if part of the law Congress wrote empowering a regulatory agency is ambiguous but the agency’s interpretation is reasonable, judges should defer to it.

At issue in the case, Loper Bright Enterprises v. Raimondo, is a law that requires fishing vessels to pay for monitors who ensure that they comply with regulations meant to prevent overfishing. The National Marine Fisheries Service established the rule, and a group of companies has challenged whether the agency had the authority to do so.

When the Supreme Court decides on the case, most likely in its next term, the outcome could have implications that go beyond fisheries.

Read the full story at the New York Times

‘Chevron Deference,’ Key Issue in Fisheries Management, Questioned by Supreme Court Nominee

February 2, 2017 (SAVING SEAFOOD) — On January 31, President Donald Trump nominated Judge Neil Gorsuch of the Tenth Circuit Court of Appeals to fill the vacant seat on the Supreme Court. If confirmed, the Court may potentially reexamine the legal principle of Chevron deference, a principle that has heavily impacted fisheries management.

Chevron deference is a legal principle established in 1984, in the Supreme Court case of Chevron v. Natural Resources Defense Council. It states that in cases when the meaning of federal laws is unclear, courts should prioritize the interpretations of the regulatory agencies, such as NOAA. Practically, this has the effect of bolstering the influence of the federal bureaucracy at the expense of judicial review. In the case of fishery management, this has resulted in several instances where courts have upheld agency decisions whose legality has been disputed by the fishing community.

Most notably, in Lovgren v. Locke the plaintiffs (including fishermen and several municipalities in New England) challenged the establishment of catch shares management in New England in 2010 as being in violation of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act. The First Circuit Court of Appeals relied on Chevron in ruling in favor of the Commerce Department. This principle also was cited last year by District Court for the District of New Hampshire as a reason why the lawsuit against NOAA’s at-sea monitoring industry funding requirements failed.

While the Supreme Court – including Justice Scalia – has previously applied Chevron deference on several occasions, Judge Gorsuch has expressed trepidation about its merits. In his concurring opinion for Gutierrez-Brizuela v. Lynch, Gorsuch wrote:

“What would happen in a world without Chevron? […] Surely Congress could and would continue to pass statutes for executive agencies to enforce. And just as surely agencies could and would continue to offer guidance on how they intend to enforce those statutes. The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is.”

While Judge Gorsuch has only been nominated recently, should he ascend to the High Court, look for a reexamination of the principle of Chevron deference in the coming years.

Merrick Garland and Chevron deference make an ugly combination

March 21, 2016 — George Will points out a glaring problem with Merrick Garland’s Supreme Court nomination, namely Garland’s excessive affection for the lamentable Chevron deference doctrine:

“Chevron deference” … actually is germane to Garland. He is the most important member (chief judge) of the nation’s second-most important court, the U.S. Court of Appeals for the District of Columbia Circuit, the importance of which derives primarily from its caseload of regulatory challenges. There Garland has practiced what too many conservatives have preached — “deference” in the name of “judicial restraint” toward Congress, and toward the executive branch and its appendages in administering congressional enactments. Named for a 1984 case, Chevron deference unleashes the regulatory state by saying that agencies charged with administering statutes are entitled to deference when they interpret supposedly ambiguous statutory language.

See the full commentary at ProfessorBainbridge.com