On Jan. 17, lawyers representing two New Jersey and Rhode Island fisheries — Loper Bright Enterprises and Relentless Inc. — petitioned the Supreme Court to overturn observer fee policies set forward by the National Marine Fishery Service to reduce overfishing.
The companion cases have invigorated national discourse on the legitimacy of the Chevron deference, according to Michael Yelnosky, a professor and former dean at the Roger Williams University School of Law. This landmark legal precedent defers interpretations of ambiguous statutes to federal agencies instead of judicial bodies.
Typically, disputes over congressional statutes are settled in court, Yelnosky said in an interview with The Herald. But if the statute is “hopelessly ambiguous,” the Chevron deference allows federal agencies to reasonably interpret the statute instead.
The doctrine was introduced after a 1984 dispute over the definition for “sources” of air pollutants in the Clean Air Act, Yelnosky said. In 2017, a Michigan Law Review article found that the Chevron deference was “one of the most cited Supreme Court decisions of all time.”
Lawyers representing both fisheries argue for an overturn of the Chevron deference. Currently, regional fishery management councils are permitted under the Magnuson-Stevens Act to “establish a system of fees” to pay observers, who are placed on commercial fishing vessels and collect a variety of important fishing-related data.
Lower courts used the Chevron precedent to defer the fee sizes to the National Marine Fishery Service — and some fishermen say that these fees are becoming unsustainable.
Jason Jarvis, the board president of the North American Marine Alliance and a commercial Rhode Island fisherman of 30 years, said these regulations require him to pay $700 per day, making fishing an increasingly expensive occupation. Various court documents, including petitions filed by the U.S. Department of Commerce, state that these costs force fishermen to cede “up to 20%” of their annual returns.
The fishermen that Jarvis has spoken to “are not against taking an observer, but they’re against having to pay out-of-pocket,” he explained in an interview with The Herald.
“We have to have regulations, but (they’re putting more) burden on fishermen that are already burdened,” Jarvis said in reference to individual fishing quotas, another MSA policy that incurs large costs to fishermen. “That observer (could be) making more money than the crew or captain.”
“Our case just involves this one regulation … but the same kind of issues come up all the time in other areas of law,” said Roman Martinez, who represented Relentless Inc. at the Supreme Court earlier this year. “Agencies have a role to play in our government … (but) we think that the court’s job is to apply its best judgment as to what the law means.”
Supporters of the Chevron deference argue that courts lack the technical expertise and bureaucratic capacity to handle such complex cases. Martinez said that this was, in part, the reasoning for Chevron’s original implementation.
According to Martinez, most disputes are resolved without invoking Chevron, meaning an overturn will not significantly upheave judicial processes. He believes that there are, however, “a number of cases in which agencies are stretching” beyond reasonable interpretations of statutes — like the fishery cases — that beckon scrutiny of the Chevron doctrine in its current form.
He also conceded that overturning Chevron will “make judges’ jobs harder,” but believes “that’s what judges are there for — (to) “be in the middle and figure out who’s got the better view of the law.” In this scenario, agencies could still contribute technical expertise to these cases, but would lack decision-making authority, he said.
Andrew Mergen, an environmental law professor at Harvard University and the faculty director of the Emmett Environmental Law and Policy Clinic, disagreed. Overturning Chevron would invite challenges to other regulatory frameworks, he said, which will “create a lot of instability” as judicial courts adapt.
Mergen expressed concern for urgent issues like climate change, believing a post-Chevron court may inefficiently tackle these problems. “I just don’t feel like time is on our side,” he said.
“I have no doubt that powerful interests representing polluters will attempt to bring new litigation to overturn important (environmental) protections,” said John Rumpler, the clean water director at Environment R.I. and Environment America. But he expressed uncertainty as to their legal prospects, funding for which has been linked to Charles Koch.
Reflecting on his experiences as a Justice Department attorney, Mergen said he thought that overturning Chevron would make agencies’ jobs “incalculably more difficult.”
“There’s a lot to criticize about (the) government … but we don’t realize how dependent we are on agencies,” Mergen said. He worries that overturning Chevron may make formerly established regulations vulnerable to new challenges, which will further busy courts.
“It makes sense to accord (courts) some deference” due to their lacking expertise and political accountability, he added. “There’s reason to be concerned.”
The cases are largely expected to win over the majority-conservative Supreme Court after Loper Bright Enterprises previously lost in lower court rulings. “Chevron has become a major target (for) conservatives and those in favor of reducing federal regulation,” Yelnosky added.
The doctrine was introduced in a unanimous ruling by a Reagan-era Supreme Court. “In 1984, the Republicans didn’t like the courts, but they liked the executive branch,” Yelnosky said. “Now they love the courts, particularly the Supreme Court,” he added, pointing to the court’s conservative majority.
“Almost certainly, Chevron will not exist in its current form after they decide the case,” Yelnosky added.
Mergen believes that Chevron will return, though in a different variation. “A lot of scholars say that out of the ashes, something like Chevron will emerge, because something like Chevron has existed for a long time,” he said. “I do think there’s some force to the idea, but it’ll take a little while.”
“There were a lot of things said (at the Supreme Court hearings) that gave us cautious optimism,” Martinez said. He anticipates a final verdict to be made “sometime in June.”
Megan is a Senior Staff Writer covering community and activism in Providence. Born and raised in Hong Kong, she spends her free time drinking coffee and wishing she was Meg Ryan in a Nora Ephron movie.
