August 9, 2023 — Nebraska Attorney General Mike Hilgers recently joined counterparts in 26 other states, including New Hampshire, in urging the U.S. Supreme Court to overturn or clarify a legal precedent that could have major implications for federal regulatory authority.

Nebraska was one of 27 states that joined a July 24 filing to the Supreme Court regarding the deference that should be afforded to federal agencies when interpreting ambiguous or silent language passed by Congress. Known as the Chevron deference, the legal doctrine requires courts to defer to reasonable agency interpretation when regulatory authority is ambiguous.

The joint brief argues that Chevron has been “abused and manipulated,” allowing federal agencies to “run amok,” and contends the court should overrule or at least clarify Chevron when it decides Loper Bright Enterprises v. Raimondo (named after Secretary of Commerce Gina Raimondo), in its next term. Justice Ketanji Brown Jackson recused herself from the case.

The case deals with the National Marine Fisheries Service and a regulation that requires fishing companies to have an additional person on fishing boats to track regulatory compliance. Companies must pay the monitor’s salary.

Hilgers, in a July 25 statement, said the U.S. Constitution lays out three branches of government, not four, and leaves legislative power to elected representatives, “not unelected and unaccountable bureaucrats.”

“Overturning Chevron is a critical step to restoring the Constitution’s protection against the unaccountable use of power and will help save Nebraskans from an endless number of regulations and burdens,” Hilgers said.

Read the full article at New Hampshire Bulletin 

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.

Read the full article at Yahoo! Finance