U.S. Supreme Court will Consider Major Case on Power of Federal Regulatory Agencies

Nearly 40 years ago, in Chevron v. Natural Resources Defense Council, the Supreme Court ruled that courts should defer to a federal agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable. On Monday, the Supreme Court agreed to reconsider its ruling in Chevron.

The question comes to the court in a case brought by a group of commercial fishing companies. They challenged a rule issued by the National Marine Fisheries Service that requires the fishing industry to pay for the costs of observers who monitor compliance with fishery management plans.

Relying on Chevron, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected the companies’ challenge to the rule. Judge Judith Rogers explained that although federal fishery law makes clear that the government can require fishing boats to carry monitors, it does not specifically address who must pay for the monitors. Because the NMFS’s interpretation of federal fishery law as authorizing industry-funded monitors was a reasonable one, Rogers concluded, the court should defer to that interpretation.

The fishing companies came to the Supreme Court in November, asking the justices both to weigh in on their challenge to the rule and to overrule Chevron (or, the petition suggested, clarify that when a law does not address “controversial powers expressly but narrowly granted elsewhere in the statute,” there is no ambiguity in the statute, and therefore no deference is required).

Some members of the court’s conservative majority have been critical of the Chevron doctrine in recent years. Justice Clarence Thomas has been among the doctrine’s most vocal critics, arguing in a concurring opinion in 2015 that Chevron deference “wrests from Courts the ultimate interpretative authority ‘to say what the law is,’ and hands it over to” the executive branch. He has been joined by Justice Neil Gorsuch, who in a dissent from the denial of review last fall argued that the court “should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts.”

The case, Loper Bright Enterprises v. Raimondo, is likely to be argued in the fall, with a decision to follow sometime in 2024. Justice Ketanji Brown Jackson recused herself from the case, presumably because she participated in the oral argument in the case while she was a judge on the D.C. Circuit.