Saving Seafood

SCOTUS to put the administrative state under scrutiny

October 28, 2023 — The U.S. Supreme Court has agreed to hear two cases that call into question so-called “Chevron deference,” a judicial doctrine that has enabled government agencies to greatly expand their power beyond the authority granted by Congress.

The cases are Loper Bright Enterprises v. Raimondo and Relentless, Inc., v. Department of Commerce. Both nominally involve challenges to a rule promulgated by the National Marine Fisheries Service that required commercial fishermen to pay $710 per day for an at-sea monitoring program. The fishermen argued that a 1976 law, the Magnuson-Stevens Fishery Conservation and Management Act, did not authorize the service to create an industry-funded monitoring program.

But the issue the court has agreed to decide goes far beyond the fishing industry. The justices have chosen these cases to review whether it is now time to toss “Chevron deference” into the dustbin of history.

The Chevron doctrine dates to the Supreme Court’s 1984 decision in Chevron U.S.A., Inc., v. Natural Resources Defense Council, Inc. In that case, the justices created a legal test to determine when a court should defer to an administrative agency’s interpretation or decision. When an agency’s action was not unreasonable, and Congress had left the issue ambiguous, the justices said, a court should simply defer to the agency’s judgment.

Read the full article at the Orange County Register

US Supreme Court to hear second Chevron challenge brought by fishermen

October 16, 2023 — The U.S. Supreme Court will listen to arguments on two challenges to NOAA Fisheries’ regulatory authority in January 2024, the court announced this week.

The court announced 13 October that it would take up the case of Relentless, Inc. v. the U.S. Department of Commerce, a lawsuit filed by Atlantic herring fishermen in 2020 challenging the government’s authority to require fishermen to pay for at-sea monitors on their vessels. The fishermen claim the monitors can cost as much as USD 700 (EUR 640) per day.

Read the full article at SeafoodSource

Congress backs fishermen over feds in Supreme Court battle, tells justices to curb bureaucracy

July 26, 2023 —  House Speaker Kevin McCarthy’s chamber is urging the Supreme Court to reconsider the level of deference courts give federal agencies, saying that allowing them too much leeway conflicts with the separation of powers and upends congressional authority over lawmaking.

The House filed its brief in a case that stems from a dispute between herring fishers and the National Marine Fisheries Service, which wants to charge vessels as much as $700 a day to monitor what they are catching.

Fishing industry advocates say that while the law passed by Congress allows for the monitors, the agency is making up its own rules by insisting the boats pay the charges.

The high court agreed to hear the dispute in May, but has not scheduled oral arguments for the legal battle during its 2023 term, which begins in October.

The justices will decide whether to overrule Chevron v. Natural Resources Defense Council, 1984 precedent that gave federal agencies deference when interpreting how to implement legislation passed by Congress when lawmakers were silent with respect to certain aspects of enforcement.

Read the full article at the The Washington Times

Commercial Fishermen Urge Supreme Court to Reel In Agency Authority

June 8, 2023 — The U.S. Supreme Court has agreed to hear a case challenging its landmark 1984 decision in Chevron v. Natural Resources Defense Council. The high court’s ruling could have important implications on federal officials’ discretion to regulate in many facets of American life.

Background and Chevron

When Congress delegates regulatory functions to administrative agencies, the delegating statute governs the agency’s ability to act. That is, the statute itself sets the agency’s boundaries and an agency may not regulate or take actions outside the scope of its delegated authority. But what happens when an agency takes actions that exceed the scope of its delegated authority? Or what happens when it is unclear from the statute whether an agency even has authority? For more than 200 years, the federal judiciary has served as a critical “check” on the powers and actions of the executive and legislative branches of government.

“Chevron deference” has become one of the most well-known precedents in administrative law. Arising from the Supreme Court’s landmark 1984 decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., it is based on the principle that an agency, with its expertise, is better positioned than a judge to know a statute’s meaning and, thus, it requires judges to defer to “reasonable” interpretations of ambiguous statutes.

Read the full article at the National Law Review

A Welcome Supreme Court Review of Chevron Deference

May 3, 2o23 — Few Supreme Court doctrines have been stretched more by regulators and lower-court judges than Chevron deference, which says judges should defer to regulators’ interpretations when laws are supposedly ambiguous. The High Court agreed Monday to give Chevron a much-needed legal review.

The Court agreed to hear Loper Bright Enterprises v. Raimondo, which concerns an obscure regulation under a 1976 fishing law. The Magnuson-Stevens Act lets the National Marine Fisheries Service (NMFS) require fishing vessels to carry federal observers on board to enforce the agency’s fishing regulations.

In three narrow circumstances, the law also permits the agency to require vessels to pay the salaries of government monitors. In February 2020 the agency went further and required some vessels to foot the bill for government monitors when those narrow circumstances don’t apply. This would cost fishermen about 20% of their annual revenue.

Read the full article at the Wall Street Journal

Fishermen target Chevron deference in SCOTUS petition over onboard monitors

November 15, 2022 — New Jersey fishing firms want the U.S. Supreme Court to review a lower court order that forces them to pay the salaries of federally mandated onboard monitors, arguing it’s the perfect opportunity to overturn a cornerstone precedent that gives federal agencies wide latitude to interpret laws.

The fishing companies say the National Marine Fisheries Service’s (NMFS) salary rule is too onerous, requiring them to not only give up valuable space on their small boats for the observers but also pay them over $700 a day. The companies have said those fees can reduce returns by 20%.

Read the full article at Reuters

Trade group takes fuel companies to court over Dungeness crab closures

November 27, 2018 — A trade group representing commercial fishermen on the West Coast of the United States has filed a lawsuit in a California court claiming petroleum companies have significantly harmed the Dungeness crab fishery in that state and neighboring Oregon.

The Pacific Coast Federation of Fishermen’s Association filed the suit in a San Francisco, California court last week against 30 fossil fuel makers. They claim actions by the defendants – which include Chevron, ExxonMobil, Dutch Shell, Citgo, ConocoPhillips and Marathon Oil – have led to algae blooms in the Pacific Ocean. Those blooms lead to a buildup of domoic acid, a harmful neurotoxin, in the crabs.

The lawsuit states fuel companies have known for a half-century that their products have led to climate change, with the waters for the crab fishery growing warmer. As a result, the Dungeness crab fishery has suffered through repeated closures since 2015.

“We are seeking to implement measures, at the fossil fuel industry’s expense, that will help crabbers adapt to a world in which domoic acid flare-ups will be increasingly common, and also help those crabbers who suffer financial losses as a result,” said Noah Oppenheim, the association’s executive director, in a news release.

Just days before the lawsuit, California Department of Fish and Wildlife officials announced that the Dungeness crab fishery, originally scheduled to open on 15 November, would be suspended indefinitely along the Sonoma County coast, located roughly 70 miles north of San Francisco.

Crab fishing south of the county began on schedule. Crab fishing north of Sonoma County is not scheduled to start until next month. However, in the same statement, state officials did not rule out a delay for that portion of the fishery.

Read the full story at Seafood Source

Trump’s plans to expand offshore drilling face headwind on Atlantic coast

February 22, 2018 — WASHINGTON — President Donald Trump’s bid to open Atlantic waters to offshore drilling has sparked bipartisan opposition in the states with the largest oil and gas reserves off their coasts, presenting unexpected obstacles to the long-held designs of the energy industry.

In recent years, political leaders in Virginia, North Carolina and South Carolina had supported oil and gas drilling off their coasts, envisioning high-paying jobs and increased tax revenues. But new governors in the three states – two Democrats and a Republican – have all reversed the positions of their predecessors, fearing the potential impact on beaches, fisheries and tourism industries.

“This last election we’ve seen a significant shift at the leadership level,” said David Holt, president of the Consumer Energy Alliance, a trade group representing large energy users and producers. “If you look at the last 10 years, the majority of the governors and the public had been supportive.”

For oil executives in Houston, an international center of the offshore oil and gas sector, the Atlantic coast is a new frontier that could potentially mean significant profits in the decades ahead. Most of the world’s biggest oil companies, including Exxon Mobil, Chevron and Royal Dutch Shell, have a major presence here, employing thousands of people, as do firms specializing in offshore drilling and services, including TechnipFMC, National Oilwell Varco, McDermott International and Transocean.

But the recent shift in political and public sentiment represents a very real threat to their plans.

The oil and gas industry has sought access to U.S. Atlantic waters for years, hoping to find rich oil and gas fields similar to those off the coasts of Nigeria and Ghana. In Trump – who proclaims “energy dominance” almost as frequently as “Make America great again” – the industry believed it had found the key to achieving its goal.

Energy companies came close two years ago when former President Barack Obama considered allowing oil and gas development in Atlantic waters. They had the support of Republicans and Democrats, including Virginia Sen. Tim Kaine, the Democratic nominee for vice president in 2016, and former Virginia Gov. Terry McAuliffe, a longtime friend and fund raiser for Hillary and Bill Clinton, but Obama ultimately decided against an expansion of offshore drilling.

Read the full story at the Houston Chronicle

 

Trump’s Supreme Court Nominee Skeptical Of Federal Agency Power

March 17, 2017 — At most Supreme Court confirmation hearings, questions focus on hot-button social issues — abortion, affirmative action, same-sex marriage — and the hearings next week on Supreme Court nominee Neil Gorsuch will be no exception.

But senators are also likely to spend a lot of time examining the nominee’s views on federal regulations — of the environment, health and safety laws for workers, and laws on consumer rights and business.

In question is a doctrine that Gorsuch has criticized but that also once helped his mother.

The Chevron doctrine

The Chevron decision is perhaps the most cited case in American law. Decided unanimously in 1984, it established a general rule of deferring to an agency’s reasonable interpretation of a statute.

The idea is that in passing a law, Congress sets out broad provisions and tells agencies that have considerable expertise to establish rules for carrying out the law’s mandates. In short, the agency is to fill in the details.

The Chevron case stems from the Reagan administration. When President Ronald Reagan took office in the early 1980s, the White House adopted more permissive rules for air pollution caused by manufacturing plants. The Natural Resources Defense Council sued the Environmental Protection Agency, then under the leadership of Anne Gorsuch, contending the agency had exceeded its authority.

Read the full story at NPR