Last week, the United States Supreme Court agreed to hear a case that’s nominally about herring. Arguments will be heard this winter, in tandem with a case that the Court had agreed to hear earlier, that one also ostensibly about herring. In both cases, though, the Justices have much bigger fish to fry: what’s really at issue is the fate of federal regulation. The stakes are enormously high, and, given the Court’s predilections, the outcome seems likely to undermine still further the government’s ability to function.
Like many potentially precedent-setting cases, the one that the Court agreed to hear last week—Relentless, Inc. v. Department of Commerce—has a long and complex backstory. In 1981, the first year of the Reagan Administration, the Environmental Protection Agency issued a set of regulations aimed at reducing environmental protection. (The head of the agency at the time was Anne Gorsuch, the mother of Supreme Court Justice Neil Gorsuch.) The rules were technical in nature. Basically, they enabled big emitters to replace a major piece of equipment—a boiler, say—without triggering a Clean Air Act requirement that new equipment be less polluting. The Natural Resources Defense Council, an environmental group, sued the agency to block the rules, and won the case in D.C. district court. (That decision was written by Judge—later Supreme Court Justice—Ruth Bader Ginsburg.)
The Chevron Corporation, a potential beneficiary of the Reagan-era rules, appealed the case to the Supreme Court. Arguments in Chevron U.S.A., Inc. v. N.R.D.C. were heard in the winter of 1984, and the Court handed down its ruling in the spring. (By that point, Gorsuch had been forced to resign from the E.P.A. She resigned after being held in contempt of Congress in connection with an inquiry into the use of toxic-waste cleanup funds.) David Doniger, the N.R.D.C.’s lead attorney on the case, learned about the decision from Nina Totenberg, the National Public Radio reporter.
“This was before the days of the Internet,” Doniger recalled recently. “So I had no idea the case had been decided that day. Nina Totenberg called, and I said, ‘Tell me what happened.’ And she said, ‘Well, you lost.’ I think my next twelve words were ‘shit.’ ”
In deciding against the N.R.D.C., the Court established what has since become known as the “Chevron deference.” According to this principle, judges faced with disputes over federal regulations should follow a two-step process. The first is to ask whether Congress explicitly addressed “the precise question at issue” when it wrote the legislation underlying the rules. If it did, then the court’s job was simple: to insure that the regulations furthered Congress’s intentions.
If Congress hadn’t spoken to the “precise question,” or if its intentions were ambiguous, judges were to proceed to step two. They should ask: Is the agency’s interpretation of the legislation “reasonable”? If so, then the court should defer to the agency. It should not substitute its “own construction of a statutory provision.”
“Judges are not experts in the field, and are not part of either political branch of the Government,” the ruling, written by Justice John Paul Stevens, stated. “Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences.”
When Chevron was handed down, it was not regarded as a particularly momentous ruling. (Justice Stevens said that he saw it just as a restatement of existing law.) But over the years it has become one of the Court’s most influential and frequently cited decisions. According to Cass Sunstein, a professor at Harvard Law School, it “may well be the most important case in all of administrative law.”
Also over the years, conservatives have come to loathe it. Justice Gorsuch has been particularly critical of Chevron, calling it a “judge-made doctrine for the abdication of judicial duty.” On the face of it, this loathing makes no sense. The Chevron decision expressly prohibits judges from substituting their own views for those of Congress or federal agencies; thus, it constrains just the sort of “activist judges” the right wing loves to hate. The only way to make sense of the campaign against Chevron is to see it for the cynical ploy it is. Over the past forty years, courts have relied on Chevron to uphold a slew of regulations aimed at combatting climate change, promoting public safety, and protecting consumers. Therefore, in the right’s view, it ought to be dismantled.
Enter the herring. Under a 1976 law, the owners of some kinds of fishing boats are required to pay the salaries of fishery monitors. In 2020, the New England Council, which develops fishery-management plans for that region, finalized a proposal that would require payment from herring-boat owners. Loper Bright Enterprises, based in Cape May, New Jersey, objected to the plan and filed suit. The company lost its case in the D.C. district court, and then lost the appeal; the courts ruled that the council’s plan was reasonable under Chevron. Earlier this year, the National Oceanic and Atmospheric Administration suspended the whole payment plan, because the agency lacked the funding to implement it. Nevertheless, Loper Bright successfully appealed the case to the Supreme Court. It asked the Court to decide not only whether the Chevron standard had been correctly applied in this instance but also whether Chevron should be overturned entirely. In agreeing to hear Loper Bright’s case, back in May, the Court said that it would take up only the second question.
The case the Supreme Court added last week, Relentless v. U.S. Department of Commerce, involves a different fishing company, Relentless, Inc., based in North Kingstown, Rhode Island, but the same basic issues. The Court offered no rationale for adding Relentless to the docket; Court-watchers have pointed out that it will allow Justice Ketanji Brown Jackson to participate in the deliberations. (Jackson had recused herself from Loper Bright, because she had already ruled on the case while serving on the U.S. Court of Appeals for the D.C. Circuit.) In taking up Relentless, the Court once again said that it would not address the particulars of the case, only the larger issue of the Chevron deference.
As many commentators have pointed out, the alternative to the Chevron deference is to leave the fate of regulations up to judges. The Supreme Court’s conservative majority seems perfectly happy augmenting the judiciary’s power at the expense of the executive’s; several of its recent decisions have done just that. “One of the Supreme Court’s most consequential projects in the last several years, a project that took off after former President Donald Trump remade the Court with three appointees, has been concentrating authority over federal policymaking within the Court itself,” Ian Millhiser, Vox’s legal analyst, observed recently.
The conservative argument against Chevron is that it leaves too many important decisions to federal bureaucrats—the much maligned “administrative state.” Since those officials aren’t elected, the argument goes, the practice is undemocratic. But this argument, as many commentators have also noted, is obviously specious. At least the federal bureaucrats’ boss has to face the voters every four years. There’s no such check on unelected federal judges. As the Department of Commerce, which is being sued in both Loper Bright and Relentless, has argued: “federal agencies, unlike federal courts, are politically accountable to the American people through the President.”
Relentless and Loper Bright are just the latest in a string of recent cases brought before the Supreme Court with the same all-but-explicit goal: to make it more difficult for the federal government to protect the public. Relentless, Inc., is represented by the New Civil Liberties Alliance, which, on its home page, announces that it “views the administrative state as an especially serious threat to constitutional freedoms.” Loper Bright is represented by the Cause of Action Institute, which describes its mission as working “to limit the power of the administrative state to make decisions that are contrary to freedom and prosperity.” Both groups have close ties to the right-libertarian network funded by Charles Koch. According to the Washington Post, over the years, the Cause of Action Institute has received “millions of dollars” from the Koch network. (Recent revelations that Justice Clarence Thomas attended network fund-raising events have led to calls for him to recuse himself from Loper Bright.) The New Civil Liberties Alliance was founded in 2017 with $1.6 million in grants, a million of which came from the Charles Koch Foundation.
Meanwhile, the list of groups that have filed briefs in support of the herring fishermen in Loper Bright reads like a donor’s guide to conservative think tanks; it includes the Competitive Enterprise Institute, the Goldwater Institute, the America First Policy Institute, the Buckeye Institute, and the Pacific Legal Foundation. (Briefs have not yet been filed in Relentless.) In a friend-of-the-court brief submitted for the opposing side, Senator Sheldon Whitehouse, Democrat of Rhode Island, along with several other Democratic senators, called these petitioners a “flotilla” of front groups, seeking “to undermine the federal government’s regulatory authority, to benefit corporate interests.”
The N.R.D.C. has filed its own friend-of-the-court brief in Loper Bright, arguing that the original decision in Chevron U.S.A. v. N.R.D.C., which went against the organization, should now be upheld. The brief, co-written by Doniger, notes that the environmental group challenges a lot of agency actions. Judges, relying on Chevron, tend to side with the agencies. Thus, “groups like ours may win more cases if Chevron were overruled,” the brief notes. But, it goes on to argue, the price of losing Chevron would be regulatory bedlam, which clearly would not serve the public’s interest: “We do not wish for an alternative where federal judges feel free to substitute their policy judgment for an agency’s.”
The Court has scheduled arguments for Relentless and Loper Bright in January, and is expected to deliver its decision in the spring. Almost certainly, a majority of the Justices will vote to modify Chevron; the only real question is whether the majority will opt to toss out the standard entirely. Doniger noted that, if the Court does toss Chevron, it will be faced with the challenge of finding a substitute.
“If you’re going to say Chevron was the wrong approach, then what’s the right approach?” he asked. He has taken to joking that his career will be bookended by the birth and death of Chevron. “And I’ll be on the losing side both times.”
An earlier version of this article misstated which court initially heard the Loper Bright case.
Source : Newyorker