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Supreme Court to Decide Case on Power of Regulatory Agencies

By Susan Frederick  |  May 9, 2023

In the 1984 case of Chevron U.S.A. v. Natural Resources Defense Council, the Supreme Court held that courts should defer to government agencies’ reasonable interpretations of ambiguous statutes.

When deciding whether to defer to an agency’s actions, courts use a two-part process. The first part requires a court to decide whether a statute explicitly addresses the action in question. If so, that is the end of the matter. If the language of the statute is unclear, courts should defer to the agency’s interpretation. Part two is often referred to as “Chevron deference.”

The Supreme Court announced that it will reexamine Chevron in the case of Loper Bright Enterprises v. Raimondo.  

Loper involves the Magnuson-Stevens Fishery Conservation and Management Act, the primary law governing marine fisheries management in U.S. waters. Enacted by Congress in 1976, the statute directs the secretary of commerce and the National Marine Fisheries Service to develop a comprehensive fishery management program to prevent overfishing and rebuild fishery stock.

Pursuant to the act, the fisheries service required the companies harvesting Atlantic herring in a major fishery off the East Coast to adopt an industry-funded monitoring program. A group of companies filed suit to challenge the service’s rule as too expensive and burdensome, alleging they had very limited vessel space and financial resources. They argue that the service exceeded its statutory authority because the act does not specifically state that industry might be required to pay for the monitoring program. They asked the courts to overrule Chevron or to hold that when a statute is silent on an issue, there should be no agency deference.

The district court and the U.S. Court of Appeals for the District of Columbia Circuit applied the Chevron two-part analysis to these facts and held that the service could require industry-funded monitors on Atlantic herring fisheries. These lower courts held that the act is clear that a fishery management plan may require a monitoring observer to be carried on board a fishing vessel for data collection purposes and that, when taken together, the act’s various provisions supported the service’s reasonable interpretation that “vessel owners may be required to pay for those observers when doing so is necessary and appropriate to the conservation and management of the fishery.”

Justices Clarence Thomas and Neil Gorsuch have criticized Chevron in past opinions, arguing that deferring to an agency when a statute is ambiguous is akin to handing judicial interpretation to the executive branch. Seventeen states filed an amicus brief in support of the herring fishing companies, stating that historically, courts have applied Chevron inconsistently, and the “confused status quo has real costs for the people who live and work within our borders … Regulation is costly; over-regulation and mercurial regulation even more so. Waiting longer to intervene forces painful tradeoffs, and they hurt the States and our residents.”

Loper will be argued this fall, with a decision in 2024.

Susan Frederick is the senior federal affairs counsel in NCSL’s State-Federal Relations Program.

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