March 11, 2025 — The Responsible Offshore Development Alliance (RODA) has appealed its case against the Vineyard Wind offshore wind project to the Supreme Court of the United States.
RODA, a lobbying group representing commercial fishermen, first filed a lawsuit against in 2022 in objection to federal approvals of the wind energy project. The 800-megawatt project, located in an area off the coast of the U.S. state of Massachusetts, is planned to take up as much as 75,000 acres.
January 13, 2025 — The U.S. Supreme Court has declined to hear the challenge of Vineyard Wind brought by the Nantucket-based nonprofit ACK For Whales, effectively ending the group’s legal effort to stop or delay the wind farm under construction southwest of the island.
The effort to bring its case to the nation’s highest court was a long shot – as the U.S. Supreme Court accepts only 2 percent of the 7,000 cases brought to it each year – and on Monday the court informed ACK For Whales that it had declined to hear its petition for certiorari.
ACK For Whales had alleged that the federal agencies that permitted the Vineyard Wind project violated the Endangered Species Act by concluding that the project’s construction likely would not jeopardize the critically endangered North Atlantic right whale. The group also asserted that the Bureau of Ocean Energy Management had violated the National Environmental Policy Act by relying on a “flawed analysis” from the National Marine Fisheries Service.
Two lower courts had previously dismissed the case, and the U.S. Supreme Court’s decision on Monday brings ACK For Whales’ legal challenge of the Vineyard Wind project to an end.
November 5, 2024 — A U.S. appeals court on Monday appeared open to upholding a federal rule requiring commercial fishermen to fund a program to monitor for overfishing of herring off New England’s coast even after the U.S. Supreme Court in that same case issued a landmark ruling curbing agencies’ regulatory power.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, during oral arguments, weighed the impact of the U.S. Supreme Court’s June decision to scrap a 40-year-old legal doctrine that had required courts to defer to agencies’ interpretations of ambiguous laws they administer.
The 6-3 conservative majority U.S. Supreme Court nixed the doctrine, known as “Chevron deference,” after taking up an appeal by several commercial fishing companies of the D.C. Circuit panel’s 2-1 ruling in August 2022 that had relied on the doctrine to uphold the fishing rule.
The justices sent the case back to the D.C. Circuit to reassess the rule’s validity post-Chevron using their own judgment and for further arguments by the fishing companies, led by New Jersey-based Loper Bright Enterprises.
Read the full article at Reuters
September 26, 2024 — The Nantucket anti-offshore wind organization ACK for Whales is pushing a lawsuit targeting the Vineyard Wind project to the U.S. Supreme Court.
On Monday, the group officially requested the Supreme Court review its appeal of a decision reached by the U.S. First Circuit Court of Appeals.
It is yet to be seen whether the Supreme Court will actually review the case.
September 26, 2024 — Three years after the Nantucket-based group ACK For Whales first sued to stop the Vineyard Wind project, its legal challenge of the offshore wind project is headed to the U.S. Supreme Court.
After its arguments were rejected by lower courts, ACK For Whales on Monday formally petitioned the U.S. Supreme Court to take up the case.
The petition asserts that the U.S. 1st Circuit Court of Appeals wrongly allowed the National Marine Fisheries Service (NMFS) to ignore the Endangered Species Act’s (ESA) requirement to use “the best available scientific and commercial data available” when it ruled in April against ACK For Whales’ challenge of Vineyard Wind.
“I have hope,” said Val Oliver, the founding director of the non-profit ACK For Whales, formerly known as Nantucket Residents Against Turbines. “In light of the recent Chevron decision, we think we have a really good chance. That was about government overreach and that is what this (Vineyard Wind) has felt like since the beginning: go, go, go, and we’ll figure it out as we go. That’s just not responsible.”
September 9, 2024 — Following their Chevron deference victory at the U.S. Supreme Court earlier this year, commercial fishermen are seeking to finally kill a NOAA Fisheries rule requiring them to pay for at-sea monitors out of pocket.
The legal battle stems from a 2020 NOAA Fisheries requirement forcing some commercial fishermen to pay for at-sea monitors out of pocket, with costs rising higher than USD 700 (EUR 640) per day. The fishermen sued but were quickly stymied by the courts’ use of the Chevron deference, a 40-year-old legal precedent that instructs judges to defer to federal agencies – in this case NOAA Fisheries – in interpreting Congressional statutes.
August 7, 2024 — Sam Grimley has served as the executive director of environmental nonprofit Sea Pact since 2022. Alexandra Golub is the sustainability manager at New York City-headquartered Acme Smoked Fish.
In June, the U.S. Supreme Court ruled in favor of New England herring harvesters who believed they were unfairly forced to bear the financial burden of independent at-sea monitors hired to observe their fishing operations.
July 24, 2024 — A recent U.S. Supreme Court decision could have important implications for fisheries in Alaska.
Last month, the Supreme Court overturned a legal principle called Chevron deference, named after the case that established it. For 40 years, that principle gave federal agencies wide authority to interpret the gray area in laws passed by Congress. Now, more of that authority will go to judges.
The decision came after a legal battle over who should pay for bycatch monitors on trawl boats. The potential effects extend to all federally regulated industries — including fisheries.
Many trawl boats are required to have bycatch observers onboard. And in Alaska, the North Pacific Fisheries Management Council can have trawl boats pay for those observers. That’s the law. It’s spelled out in the Magnuson-Stevens Act, which governs commercial fishing.
But that act is not clear on who should pay for bycatch observers elsewhere. In the Atlantic, a federal agency created a similar funding program and a trawling business sued.
“And so (the National Marine Fisheries Service) used its agency authority to interpret the statute and fill in the gap and say, ‘Well, you know, we’re going to do what we do in the North Pacific region here in the Atlantic region.’ And the court said, ‘Nope, you can’t do that,’” said Anna Crary, an environmental lawyer at the firm Landye Bennett Blumstein LLP in Anchorage. She’s been watching that court case.
That Supreme Court decision, in a case known as Loper Bright, was a reversal of policy the Court formed in a 1984 environmental lawsuit called Chevron vs. Natural Resources Defense Council.
That doctrine said that when federal laws are vague, federal agencies should fill in the gaps, and courts should defer to the expertise of those agencies. Crary said that understanding of agency power has become a baseline assumption.
“Administrative law, unbeknownst to many people, really forms the backbone of what we perceive as our everyday life, as modern society. But the extent to which this decision destabilizes that, I think is quite profound,” Crary said.
July 2, 2024 — Wayne Reichle is president and owner of Lund’s Fisheries in Cape May, New Jersey. He was one of the small business owners who sued the federal government in Loper Bright Enterprises v. Raimondo, which resulted in the Supreme Court overturning Chevron deference. Wayne is the third generation in the seafood business. His grandfather was a fishing vessel owner and operator in Cape May, and he was followed by Wayne’s father, Jeff Reichle, who had a vision for expanding the business and helped pioneer several fisheries through his investments in shoreside processing and distribution.
The following excerpt was published by the New York Post:
The Supreme Court just sided with my New Jersey-based, family-owned fishing business — and may have even saved it.
That’s the reality of the court’s June 28 decision in a case called Loper Bright Enterprises v. Raimondo, which overturned the “Chevron doctrine” that gave unchecked power to federal bureaucrats.
I was one of the small business owners who sued the federal government in this case.
I didn’t know my lawsuit would go all the way to the Supreme Court, or that the justices would tackle a huge question like bureaucratic accountability and how our laws should be read.
I just wanted to stop a federal agency that threatened my ability to keep my family business afloat.
In early 2020, the National Oceanic and Atmospheric Administration decided that herring boats like mine had to start paying for the federal monitors who sometimes ride along during fishing trips.
These monitors check to make sure we’re not catching more fish than we’re allowed to, and observe our fishing methods to confirm we’re following the rules.
I’m glad we have a federal law that empowered NOAA to create a monitoring program: That law helps keep fishing sustainable.
But nowhere in the law does it say that fishermen like me have to pay for the monitors.
It was long understood that the government should pay for them, since the government requires them.
Only the government can afford them, too: The monitors cost about $700 a day.
For our two fishing boats, this mandate could have forced us to pay for over 100 days of monitoring a year, totaling more than $70,000 — a huge expense for a small fishing business and the fishermen we work with.
What gives federal bureaucrats the right to rewrite federal law?
They say the law is “unclear,” which gives them authority to interpret it.
But common sense says that if the law doesn’t say it, the government can’t do it.
July 1, 2024 — William Bright, Wayne Reichle, and Stefan Axelsson manage commercial fishing businesses in New Jersey, targeting Atlantic herring. For many years, fishermen like Bill, Wayne, and Stefan have been required to carry federal observers on their vessels when venturing into the Atlantic to catch herring. These observers are mandated to ensure that the fishermen comply with legal catch limits, aiming to prevent overfishing.
However, in 2020, NOAA Fisheries overreached the authority granted to the agency by law, and decided that herring fishermen should directly pay the observers’ salaries, potentially costing them up to $700 per day. According to estimates, the cost of the observers could amount to over 20 percent of the revenue from their catch.
Consequently, Reichle, Bright, and Axelsson filed a lawsuit against the federal government in Loper Bright Enterprises v. Raimondo.
“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 told Scripps News.
Meghan Lapp, fisheries liaison at Seafreeze Ltd. in Point Judith, Rhode Island, homeport of the fishing vessel Relentless, faced similar issues. Ms. Lapp noted that their complaints went through fisheries council meetings and NOAA officials, but to no avail.
“I was ignored the entirety of the time because the agency knew it would have deference if it ever got to court,” Ms. Lapp told National Fisherman. Thus, they filed Relentless, Inc. v. Department of Commerce.
The implications of these cases extend far beyond the shores of New Jersey and Rhode Island.
Today, in its decision on Loper Bright and Relentless, the Supreme Court has overturned “Chevron deference,” a 40-year-old legal precedent.
“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress,” Justice John Paul Stevens wrote for a 6-0 court in the 1984 Chevron opinion. But “if the statute is silent or ambiguous with respect to the specific issue,” the Chevron precedent dictated that courts should defer to interpretations by the agency charged with implementing the law.
Chevron has long been criticized by some, particularly conservatives, for granting excessive power to federal agencies and unelected officials. By this decision, the Court significantly limits the authority of agencies to interpret ambiguity in statutes, and use that ambiguity to create regulations that can affect extensive areas of American life and commerce. Writing for the majority, Chief Justice John Roberts stated, “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.
Sen. Dick Durbin of Illinois, the Senate’s No. 2 Democrat, expressed disappointment, telling the Wall Street Journal that “Federal agencies use the latest scientific analyses and expert opinions to implement widely popular programs that ensure safe food and medications, clean air and water, stable financial markets, fair working conditions, and more.”
If Federal agencies always used the latest science appropriately, never overstepped their bounds, and never allowed appointed or unelected career officials to enact their own agendas, Senator Durbin would be 100 percent correct. But that is not always the case. If James Madison were alive today, he might say, “If regulators were angels, no limit on judicial deference would be necessary.”
As the ramifications of this decision propagate through the lower courts and agencies, perhaps it will become increasingly incumbent upon Congress to do its job, and write clear, detailed legislation. It may be optimistic, but if this ruling diminishes the habit of our elected officials to pass last-minute ambiguous legislation that leaves important details to unelected officials in agencies, it will be a good thing.
Congratulations to the owners, operators, and crew of these “little boats that could,” and to the attorneys who believed in them, and the merits of their case.
The decision is being covered extensively in the press. Here are links to some of that coverage.
CNN: Supreme Court overturns 1984 Chevron precedent, curbing power of federal government
Associated Press: The Supreme Court weakens federal regulators, overturning decades-old Chevron decision
Washington Post: Supreme Court curbs federal agency power, overturning Chevron precedent
Wall Street Journal: Supreme Court Pares Back Federal Regulatory Power