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Supreme Court to Consider Overruling Chevron Deference

on Tuesday, 12 September 2023 in Environmental Pulse: Vanessa A. Silke, Editor

At issue in Loper Bright Enterprises v. Raimondo is whether courts must continue to rely on agency interpretations when statutory text is ambiguous.

This fall, the U.S. Supreme Court will hear oral arguments in a direct challenge to Chevron deference. An important rule of administrative law, Chevron sets a two-step framework for reviewing agency interpretations of statutes. Under Chevron, courts must defer to agency interpretations of law so long as (1) the issue is ambiguous under statutes and (2) the agency’s rule is a reasonable interpretation of statutory law. See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984). Several justices have already written critically about Chevron. Justices Clarence Thomas, Brett Kavanaugh, and Neil Gorsuch, for instance, have critiqued Chevron for taking judicial authority from the courts.

Because Chevron gives significant rulemaking authority to administrative agencies, it has also long been a target of industry groups. Industry groups’ best opportunity in years to overrule Chevron is Loper Bright Enterprises v. Raimondo. Under 16 U.S.C. § 1853(b)(8), regulators may require that fishing boats carry federal monitors to ensure compliance with fishery management plans. But the statute does not specifically address who must pay for the monitors. The National Marine Fisheries Service (“NMFS”) adopted a rule requiring each boat owner to pay.  A group of commercial herring fishing companies challenged the rule, claiming that it exceeds NMFS’s authority under statutory fishery law.

On appeal, the fishermen petitioned to the United States Supreme Court, asking it to, in part, “overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” The court agreed to hear this issue. We predict the court will at least limit the scope of Chevron.

That said, the consequences of overruling Chevron would be significant. Chevron has been in place for almost 40 years and has sustained many administrative regulations. If the court eliminates or narrows Chevron deference, a number of other regulations may fall, as courts begin to analyze agencies with heightened scrutiny. This shift may also impact how Congress drafts legislation, as the prospect of reduced administrative deference may incentivize lawmakers to draft clearer statutes to avoid potential ambiguities.

This case will be important to any entity that faces federal regulation. Attorneys at Baird Holm LLP specialize in agriculture, administrative law, and litigation. Please do not hesitate to contact us if you have questions about this case or any related matter.

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