Saving Seafood

Supreme Court Takes Up Case That Could Curtail Agency Power to Regulate Business

May 1, 2023 — The Supreme Court agreed on Monday to take up a case that could make it easier to curtail the power of administrative agencies, a long-running goal of the conservative legal movement that could have far-reaching implications for how American society imposes rules on businesses.

In a terse order, the court said it would hear a case that seeks to limit or overturn a unanimous 1984 precedent, Chevron v. Natural Resources Defense Council. According to the decision, if part of the law Congress wrote empowering a regulatory agency is ambiguous but the agency’s interpretation is reasonable, judges should defer to it.

At issue in the case, Loper Bright Enterprises v. Raimondo, is a law that requires fishing vessels to pay for monitors who ensure that they comply with regulations meant to prevent overfishing. The National Marine Fisheries Service established the rule, and a group of companies has challenged whether the agency had the authority to do so.

When the Supreme Court decides on the case, most likely in its next term, the outcome could have implications that go beyond fisheries.

Read the full story at the New York Times

‘Chevron Deference,’ Key Issue in Fisheries Management, Questioned by Supreme Court Nominee

February 2, 2017 (SAVING SEAFOOD) — On January 31, President Donald Trump nominated Judge Neil Gorsuch of the Tenth Circuit Court of Appeals to fill the vacant seat on the Supreme Court. If confirmed, the Court may potentially reexamine the legal principle of Chevron deference, a principle that has heavily impacted fisheries management.

Chevron deference is a legal principle established in 1984, in the Supreme Court case of Chevron v. Natural Resources Defense Council. It states that in cases when the meaning of federal laws is unclear, courts should prioritize the interpretations of the regulatory agencies, such as NOAA. Practically, this has the effect of bolstering the influence of the federal bureaucracy at the expense of judicial review. In the case of fishery management, this has resulted in several instances where courts have upheld agency decisions whose legality has been disputed by the fishing community.

Most notably, in Lovgren v. Locke the plaintiffs (including fishermen and several municipalities in New England) challenged the establishment of catch shares management in New England in 2010 as being in violation of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act. The First Circuit Court of Appeals relied on Chevron in ruling in favor of the Commerce Department. This principle also was cited last year by District Court for the District of New Hampshire as a reason why the lawsuit against NOAA’s at-sea monitoring industry funding requirements failed.

While the Supreme Court – including Justice Scalia – has previously applied Chevron deference on several occasions, Judge Gorsuch has expressed trepidation about its merits. In his concurring opinion for Gutierrez-Brizuela v. Lynch, Gorsuch wrote:

“What would happen in a world without Chevron? […] Surely Congress could and would continue to pass statutes for executive agencies to enforce. And just as surely agencies could and would continue to offer guidance on how they intend to enforce those statutes. The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is.”

While Judge Gorsuch has only been nominated recently, should he ascend to the High Court, look for a reexamination of the principle of Chevron deference in the coming years.

Merrick Garland and Chevron deference make an ugly combination

March 21, 2016 — George Will points out a glaring problem with Merrick Garland’s Supreme Court nomination, namely Garland’s excessive affection for the lamentable Chevron deference doctrine:

“Chevron deference” … actually is germane to Garland. He is the most important member (chief judge) of the nation’s second-most important court, the U.S. Court of Appeals for the District of Columbia Circuit, the importance of which derives primarily from its caseload of regulatory challenges. There Garland has practiced what too many conservatives have preached — “deference” in the name of “judicial restraint” toward Congress, and toward the executive branch and its appendages in administering congressional enactments. Named for a 1984 case, Chevron deference unleashes the regulatory state by saying that agencies charged with administering statutes are entitled to deference when they interpret supposedly ambiguous statutory language.

See the full commentary at ProfessorBainbridge.com