Saving Seafood

Case brought to Supreme Court by herring fishermen may gut federal rulemaking power

January 17, 2024 –– The U.S. Supreme Court will hear a case today, brought by fishing interests who are friends of Saving Seafood, which could upend the Chevron doctrine. The Supreme Court will hear oral arguments in two cases, Loper Bright Enterprises, Inc. v. Raimondo, Sec. of Comm. (22-451) and Relentless, Inc. v. Dept. of Commerce (22-1219).

From National Public Radio:

Judges are supposed to follow a two-step procedure. First, they’re supposed to ask whether the law is clear when someone challenges a federal rule. Then, if the law is not clear, if there’s an ambiguity, the court is supposed to defer to the agency interpretation if it’s reasonable.

In practice, that’s meant that courts often defer to people inside federal agencies who are experts on things like pollution, banking and food safety.

But all of it could be upended by a conservative supermajority on the court at the request of an unlikely set of plaintiffs: a group of herring fishermen based in Cape May, N.J.

One of them is Bill Bright, a first-generation fisherman whose family has followed him to the sea.

“My boys are working on the boats,” Bright said. “And my daughters, we have a shoreside business and they run that. So we’re all, the whole family is, in the seafood business 100%.”

Bright said he welcomes regulations to keep the herring population strong in the Northeastern United States. But he said the fisheries service went too far when the government mandated that vessel owners like him had to pay for observers on the boats to make sure they’re following the rules. 

Paul Clement, a former solicitor general in the George W. Bush administration, has argued more than 100 times before the Supreme Court. He represents the herring fishermen.

“Can’t think of a better way to mark the 40th anniversary of the Chevron decision than with an overruling,” Clement said. “In our view, this really has gotten out of control.”

He said the current system means Congress never has to weigh in and reach a compromise on the toughest policy questions, because one side or the other can just wait for a change in the executive branch every four or eight years, and the rules will swing back and forth based on the views of the political party in power.

“I think it’s really as simple as this: which is when the statute is ambiguous, and the tie has to go to someone, we think the tie should go to the citizen and not the government,” Clement added. “And one of the many problems with the Chevron rule is it basically says that when the statutory question is close, the tie goes to the government, and that just doesn’t make any sense to us.”

Read the full story at NPR

‘How do we know where the line is?’ Supreme Court considers ‘chevron’ principle in major case

January 17 2024 — The Supreme Court on Wednesday wrestled over whether to fiddle with − or even overturn − a 40-year-old precedent that has guided how federal agencies protect the environment, workers, consumers and more.

“How do we know where the line is?” Justice Clarence Thomas asked in opening more than three and a half hours of debate over how much deference courts should give federal agencies when the law is unclear.

While the cases before the court on Wednesday were brought by herring fishermen who objected to being forced to pay for federal inspections of their catch, the court’s decision could undo decades of rules and procedures involving land use, the stock market, and on-the-job safety.

Read the full article at USA Today

A little fish at the Supreme Court could take a big bite out of regulatory power

January 16, 2024 — Business and conservative interest groups that want to limit the power of federal regulators think they have a winner in the Atlantic herring and the boats that sweep the modest fish into their holds by the millions.

In a Supreme Court term increasingly dominated by cases related to former President Donald Trump, the justices are about to take up lower profile but vitally important cases that could rein in a wide range of government regulations affecting the environment, workplace standards, consumer protections and public health.

In cases being argued Wednesday, lawyers for the fishermen are asking the court to overturn a 40-year-old decision that is among the most frequently cited high court cases in support of regulatory power. Lower courts used the decision to uphold a 2020 National Marine Fisheries Service rule that herring fishermen pay for monitors who track their fish intake. A group of commercial fishermen appealed the decision to the Supreme Court.

Read the full article at the Associated Press

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