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 Supreme Court ruling on fishing for herring could sharply curb federal regulatory power

January 11, 2024 — Fisheries regulation might seem to be unusual grounds for the U.S. Supreme Court to shift power away from federal agencies. But that is what the court seems poised to do in the combined cases of Loper Bright Enterprises vs. Raimondo and Relentless Inc. vs. Department of Commerce. The cases are scheduled for oral argument in tandem on Jan. 17, 2024.

The question at the core of both cases is whether the secretary of commerce, acting through the National Marine Fisheries Service and following the Magnuson-Stevens Fishery Conservation and Management Act, can require commercial fishers to pay for onboard observers whom they are required to take on some fishing voyages. In both cases, the plaintiffs assert that the Commerce Department has exceeded its legal authority. That claim turns on how much deference the court should give the agency’s interpretation of the Magnuson-Stevens Act.

Specifically, plaintiffs are challenging a nearly 40-year-old doctrine of federal administrative law, known as Chevron deference for the 1984 case in which it was set forth. This tenet provides that when a federal statute is silent or ambiguous about a particular regulatory issue, courts defer to the implementing agency’s reasonable interpretation of the law.

In other words, if the agency and federal courts disagree about the “best” interpretation of a federal law, the courts cannot force the agency to accept their version of what the statute means or allows, so long as the agency’s own interpretation is reasonable.

Read the full article at the Conservation

Supreme Court denies Alaska’s bid to revive the copper and gold Pebble Mine proposal blocked by EPA

January 9, 2024 — The Supreme Court on Monday rejected Alaska’s bid to revive a proposed copper and gold mine that was blocked by the Environmental Protection Agency.

The justices did not comment in turning away the state’s attempt to sue the Biden administration directly in the high court over its desire to revive the proposed Pebble Mine in the state’s Bristol Bay region.

Read the full article at the Associated Press

Energy cases to watch in 2024

January 3, 2024 — Energy regulators’ power to address planet-warming emissions is in the crosshairs in federal courts in 2024.

In one of the year’s biggest cases, the Supreme Court could rein in the Federal Energy Regulatory Commission’s ability to use 50-year-old laws to take bold action on emerging problems like climate change.

At issue in Loper Bright Enterprises v. Raimondo — a high-profile legal battle that will ripple through all federal agencies — is whether the justices should overturn the Chevron doctrine, which for 40 years has given regulators at FERC and elsewhere the benefit of the doubt in lawsuits over their rules.

Read the full article at E&E News

Lawyers for Rhode Island fishermen file Supreme Court brief

November 23, 2023 — A conservative legal foundation filed its opening papers in a U.S. Supreme Court case on behalf of Rhode Island fishermen, challenging a National Oceanic and Atmospheric Administration rule requiring herring fishermen to pay for at-sea government monitors on their fishing boats.

Lawyers with the New Civil Liberties Alliance worked with Point Judith, R.I., fishermen who operate companies Relentless, Inc., Huntress, Inc., and Seafreeze Fleet, LLC to develop the case, now dubbed Relentless v. Department of Commerce. The high court is scheduled to hearing oral arguments Jan. 17.

The Relentless case is proceeding in tandem with a similar case that another activist group, the Cause for Action Institute, is bringing to the Supreme Court on behalf of Loper Bright Enterprises and other Cape May, N.J. herring fishermen.

The cases challenge a 2020 rule imposed by NOAA that required vessel operators to pay for observers on their vessels at sea, at a cost that owners say can exceed $700 daily and sometimes exceed the money they make from landing low-priced herring.

NOAA waived the rule earlier this year as it ran short of money to administer the program. But fishermen want to make sure the observer requirement is not renewed, and conservative advocacy groups see their cause as a chance to overturn a long-standing precedent called the “Chevron deference.”

Read the full article at the National Fisherman

A Small Fish and an Uncollected Fee Add Up to Big-Government Challenge at the Supreme Court

November 1, 2023 — Conservatives who have spent decades asking the Supreme Court to rein in the US government’s regulation of businesses are now betting on a case involving fishermen challenging a $710 fee they’ve never had to pay.

The case could undercut the power of federal regulators on major issues including air pollution and securities fraud. It also exemplifies the way many of the high court’s biggest fights are born these days — driven less by the practical aims of the litigants than by the ideological vision of the interest groups behind the suits.

The fight concerns a federal requirement that some herring boats host government-approved observers aboard their vessels and cover an estimated $710 daily cost. The fisherman say that would be an onerous burden on their family-owned businesses — so onerous they are suing even though the fee is on hold and might never kick in.

“We have not had to pay. We’re just nervous about this hanging over our head,” said Bill Bright in an interview in Cape May, New Jersey, where he runs his two-vessel fishing business. “So we feel that we need to solve this problem now.”

The real stakes lie in the broader legal issue, one that anti-regulatory groups have eagerly sought to get before the Supreme Court and its conservative supermajority. The justices are considering overturning a 1984 ruling known as Chevron v. Natural Resources Defense Council, under which judges typically defer to regulators on the meaning of ambiguous statutes – including those that set out how much power the agency has.

Democratic administrations have relied heavily on the so-called Chevron doctrine, using it to justify rules governing energy, the environment and the workplace. In the herring case, a federal appeals court invoked Chevron in upholding the National Marine Fisheries Service’s payment demand even though Congress didn’t explicitly authorize the rule.

Those pressing the lawsuits say they readily work with the Fisheries Service toward the common goal of a robust herring stock but draw the line at having to pay for monitors.

“We welcome observers on board our fishing vessels, but we shouldn’t have to pay for that,” said Wayne Reichle, president of Lund’s Fisheries Inc., which owns vessels as well as five processing facilities on the East and West Coasts. “That’s something that the government should have to pay for.”

Read the full article at at YahooNews!

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

Fishermen’s Supreme Court fight against government monitors could make big splash

September 27, 2023 — For nearly 50 years, America’s herring fishermen have been required to take federal monitors on their boats when they set out into the North Atlantic.

Aboard cramped private trawlers, the monitors record the health of fish and of the sea.

But now there’s a catch.

When regulators said the fishermen were on the hook to pay the monitors’ salaries, many said the government had gone too far.

“We don’t mind taking observers, you know, we have for decades now,” said Stefan Axelsson, a third-generation herring fisherman. “But to be told to pay for it just isn’t right.”

Read the full article at ABC News

Nebraska AG joins fight against legal doctrine regarding federal regulatory authority

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