Blog By: Kaitlyn Willis
In January 2024, the Supreme Court heard oral arguments for Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo, which were brought on behalf of herring fishermen in Rhode Island and New Jersey.[i] The two cases arose from a common issue: a 2020 rule imposed by the National Marine Fisheries Service (NMFS)[ii] requiring the herring fishermen to bring observers onboard to monitor fishing.[iii] The fishermen themselves would bear the cost for the agency-contracted observers, which could cost up to $700 per day and potentially exceed their profits.[iv] The Magnuson-Stevens Act (MSA) governs fishery management in federal waters and provides that, with approval from the Secretary of Commerce, the NFMS may require fishing vessels to carry federal observers who enforce the agency’s regulations.[v] Congress appropriates funds for the observers, but the MSA also permits payment of federal observers by regulated parties.[vi]
In early 2023, the National Oceanic and Atmospheric Administration (NOAA) waived the rule because it did not have the funds to implement the program.[vii] However, the herring fishermen want to ensure the observer requirement is not renewed in the future.[viii] The fishermen seem to concede that the 1976 MSA, which requires herring boats to carry federal observers to collect data and prevent overfishing, is legally sound.[ix] The crux of their case is the new 2020 regulation, which they claim wrongfully interpreted the MSA law.[x] They argue that Congress did not authorize the agency to impose the fee via the MSA and that judges—not regulators—must decide whether the 1976 MSA allows it.[xi]
The cases will hinge on the Chevron doctrine.[xii] The Supreme Court decided Chevron in 1984, ruling that courts should defer to executive agencies’ reasonable interpretations of federal statutes.[xiii] In both Relentless and Loper Bright, the lower courts upheld Chevron deference and ruled the government’s favor.[xiv] The United States Court of Appeals for the District of Columbia ruled that the NMFS interpretation of the 1976 law to allow industry-funded monitoring was reasonable.[xv] In Boston, the First Circuit found that the agency’s interpretation of the 1976 law was, at the very least, reasonable.[xvi] Now, the decision rests in the hands of the Supreme Court, minus Justice Ketanji Brown.[xvii]
As of late, the Supreme Court has largely ignored Chevron, relying instead on the major questions doctrine, which requires Congress to speak clearly when authorizing the executive branch to undertake politically or economically significant matters.[xviii] The Supreme Court has recently overturned major precedents, such as Roe v. Wade, which protected the right to abortion.[xix] Chevron advocates urge the Court to retain its precedent, calling it a cornerstone of administrative law and claiming that overruling would cause a shock to the legal system.[xx] Chevron supporters tend to advocate for regulation and deference to the expertise and independence of administrative agencies.[xxi] Conversely, Chevron opponents argue that the doctrine systematically favors the government and violates due process.[xxii]
The Supreme Court’s decision regarding Relentless, Loper Bright, and consequently, Chevron, will come no later than June 2024.[xxiii] The Court must make a decision that will carry monumental implications for administrative law and the American government as a whole.[xxiv] That said, the Chevron doctrine should stand. First, Chevron provides a clear legal framework, complete with protections, guidelines, and a level of predictability, allowing businesses and individuals to conduct their endeavors in accordance with regulation.[xxv] Next, it protects the role of federal agencies in setting standards for administrative law, and thus allowing Congress to protect public health, safety, and welfare.[xxvi] Healthcare, occupational safety, economics, and environmental issues will all be affected should Chevron be overturned.[xxvii] Third, federal agencies are held accountable to elected officials and have acquired expertise in the tasks that Congress assigned to them.[xxviii] Chevron allows those agencies to carry out their duties without having their reasonable policy choices scrutinized by unelected judges.[xxix]
Thus, the overarching idea of Chevron should remain: in the event of an ambiguous statute, federal courts should generally defer to an agency’s reasonable interpretation.[xxx] However, Relentless and Loper Bright present interesting scenarios where the regulation at issue seems unreasonable and unfair in light of any potential benefit gained. Perhaps these situations are what the major questions doctrine is intended to remedy, but since the Supreme Court declined to set a specific standard for the new doctrine, only time will tell the fate of the herring fishermen.[xxxi]
[i] Keith Bradley et al., The End of “Chevron” or Its Rebirth?, The Nat’l L. Rev. (Jan. 29, 2024), https://www.natlawreview.com/article/end-chevron-or-its-rebirth [https://perma.cc/8QU2-A4WL].
[ii] The National Marine Fisheries Service (NMFS) is also known as the National Oceanic and Atmospheric Administration (NOAA). It is an office within the Department of Commerce.
[iii] Adam Liptak, A Fight Over a Fishing Regulation Could Help Tear Down the Administrative State, The N.Y. Times (Jan. 15, 2024), https://www.nytimes.com/2024/01/15/us/politics/supreme-court-fisherman-chevron.html.
[iv] Id.
[v] Fact Sheet: The Magnuson-Stevens Act, Pac. Fishery Mgmt. Council (Oct. 18, 2021), https://www.pcouncil.org/fact-sheet-the-magnuson-stevens-act/ [https://perma.cc/J95X-CGZD].
[vi] Id.
[vii] Kirk Moore, Supreme Court hears fishermen’s challenge that could upend agency powers, Nat’l Fisherman (Jan. 17, 2024), https://www.nationalfisherman.com/national-international/supreme-court-hears-fishermen-s-challenge-that-could-upend-agency-powers [https://perma.cc/7TGN-SXK9].
[viii] Id.
[ix] Id.
[x] Id.
[xi] Id.
[xii] Liptak, supra note iii.
[xiii] Id.
[xiv] Id.
[xv] Id.
[xvi] Id.
[xvii] Justice Ketanji Brown Jackson is recused from the first case because she participated in the case as a federal appeals court judge.
[xviii] Liptak, supra note iii.
[xix] Id.
[xx] Id.
[xxi] Id.
[xxii] Id.
[xxiii] Bradley, supra note i.
[xxiv] Id.
[xxv] David Doniger, The Significance of Chevron Deference, Nat’l Res. Def. Council (Jan. 12, 2024), https://www.nrdc.org/bio/david-doniger/significance-chevron-deference [https://perma.cc/6PWT-HXDF].
[xxvi] Id.
[xxvii] Id.
[xxviii] Id.
[xxix] Id.
[xxx] Id.
[xxxi] Jaclyn Lopez, The major questions doctrine post-West Virginia v. EPA, Am. Bar Ass’n (Jan. 3, 2023), https://www.americanbar.org/groups/environment_energy_resources/publications/trends/2022-2023/january-february-2023/the-major-questions-doctrine/.