New Jersey fishermen challenge Chevron deference

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Big news out of the Supreme Court this week as justices have agreed to hear a lawsuit challenging the so-called Chevron doctrine, a policy requiring courts to defer to government agencies in lawsuits challenging federal regulations. That precedent dates from the decision in Chevron v. Natural Resource Defense Council (1984), a majority opinion written by then-Justice John Paul Stevens.

My Competitive Enterprise Institute colleagues Devin Watkins and Iain Murray praised the court for revisiting a doctrine that for decades has unfairly tilted the playing field toward the government in court. Watkins said:

Under Chevron, the court in 1984 held that when a statute is ambiguous, courts must defer to federal agencies’ interpretation of that statute in lawsuits brought by citizens. That requirement puts citizens at an unfair disadvantage in challenging regulations that harm their lives and livelihoods.

Murray said:

Courts deferring routinely to regulators’ interpretation of the law encourages them to aggregate power to themselves while depriving harmed parties of effective judicial remedies. Natural justice and due process require a judiciary that is more involved in determining what the law says. Chevron deference should be overturned as a matter of regulatory hygiene.

The ideological evolution of the Chevron case is certainly interesting. While for many years conservative and libertarian legal scholars have decried the power it gives to government agencies, the case was originally a win for the Reagan administration. The Environmental Protection Agency in 1981 changed the way it was enforcing the Clean Air Act regarding industrial facilities that were producing air pollution. The Natural Resource Defense Council objected to these changes, arguing that the government should be enforcing a stricter version of pollution control. By giving deference to the government agency in question at the time, the court in 1984 was actually delivering a loss to environmental activists.

So, despite the fact that many Chevron doctrine haters today would likely have approved of the original Reagan-era EPA policy itself, they’re opposed to the deference doctrine that emerged from the case in general because they think it gives too much power and discretion to federal regulatory agencies – even with the understanding that those agencies will be run, at least occasionally, by an administration they actually like. 

This new case, by the way, is Loper Bright Enterprises v. Raimondo, and involves fishermen having to pay the costs of regulatory monitoring on their boats. The National Oceanic and Atmospheric Administration (NOAA) wants to make sure these commercial fishing vessels aren’t breaking any rules on what fish they’re catching, so they have human beings standing around on the boats to monitor operations while the actual fishermen do the work. The government used to pay for those monitors, but then decided to force the fishermen to pay instead, despite that not being part of the legislation passed by Congress that authorized the monitoring in the first place.

Now, with the support of Cause of Action Institute and former Solicitor General Paul Clement, the New Jersey fishermen of Loper Bright Enterprises will be challenging that cost and entire legal doctrine that defers to agencies like NOAA in the first place.

One final bit of Washington, D.C. trivia – the administrator of the Environmental Protection Agency in the early 1980s, who was involved in the original Clean Air Act case that produced the opinion in the Chevron case, was the late Anne Gorsuch. The current case challenging the Chevron doctrine will be decided, in part, by current Supreme Court Associate Justice Neil Gorsuch, who happens to be her son.

We also covered this topic in Episode 19 of the Free the Economy podcast; the Supreme Court segment starts around 1:02 in.