Will a Supreme Court decision in fisheries case tie the hands of all government regulators?

Fishing for Atlantic herring may seem worlds away from restrictions on power plant emissions or responses to the COVID-19 pandemic. But a case before the U.S. Supreme Court could affect all those activities and more by altering how federal agencies apply scientific expertise in carrying out their regulatory duties.

On 1 May the high court agreed to hear a case brought by four family-owned herring businesses. They argue that the National Marine Fisheries Service has no authority to require them to pay for onboard observers who would monitor their catch to help the agency protect declining fish stocks.

But legal scholars and environmentalists say much more than fishing is at stake in Loper Bright Enterprises v. Raimondo . When the high court rules, most likely in the spring of 2024, it may also take a step back from a long-standing legal doctrine, called the Chevron deference, used to determine whether government agencies have exceeded their authority. The doctrine has been applied for nearly 40 years to everything the government does, including regulations affecting businesses, schools, and the general population.

Abandoning or limiting Chevron could restrict an agency’s ability to apply the best science in drawing up regulations, argues Julie McNamara of the Union of Concerned Scientists’s climate and energy program. “We don’t know how it will play out,” says McNamara, whose organization is considering filing a brief urging the court to side with the government. But if Chevron is overturned, she says, “the chances of a successful court challenge to any government action designed to protect the public go way up.”

Overturning Chevron is exactly what many conservative groups requested in briefs leading up to the high court’s decision to take up the case. “Chevron deference is unconstitutional and ahistorical,” wrote lawyers for the Cato Institute and the Liberty Justice Center. “It has wreaked havoc in the lower courts upon people and businesses.”

The doctrine gets its name from a 1984 case, Chevron U.S.A., Inc. v. Natural Resources Defense Council , in which environmental groups sued then-President Ronald Reagan’s administration over its interpretation of a provision of the 1977 Clean Air Act regulating emissions from power plants. The groups lost their challenge to what they saw as the administration’s industry-friendly definition of a pollution source. But in unanimously upholding the administration’s position, the justices also laid out a two-step process for deciding how federal courts should mediate such disputes in the future.

Courts have no cause to intervene if Congress has been clear about its intent, the high court explained. But if there are ambiguities or gaps in the law, they added, courts should defer to the agency’s interpretation if it is reasonable and based on compelling evidence.

“The Supreme Court took the [Chevron] case in order to tell the lower courts to stop substituting their view of the right policy in places where the law seems ambiguous,” says David Doniger, senior director for climate and energy policy at the National Resources Defense Council (NRDC), who argued the 1984 case. “Instead, it said in Chevron that you should leave that choice to the agency and then overrule them only if what they’ve done is totally wacko.”

Sometimes Congress intentionally creates gray areas, Doniger explains, so that the law can be adapted to fit an ever-changing world. For example, the Clean Air Act does not list specific pollutants the federal government can regulate. Decades later, that lack of specificity allowed regulators to add carbon dioxide as part of the government’s plan to fight climate change. In its Loper brief defending the use of the Chevron doctrine, the U.S. solicitor general argued it “respects the expertise agencies can bring to bear in administering complex statutory schemes.”

Chevron has become “the most cited decision in all of American public law,” says Columbia University law professor Thomas Merrill, who last year published a definitive history of its use by the courts. But the impact of applying the Chevron doctrine in any particular case is far from preordained.

“During the Reagan years, most of the conservatives and the business interests thought that the Chevron doctrine worked in their favor,” Doniger says. “But during the Clinton and Obama years, agencies began to come up with more assertive interpretations of their authority in places where they found ambiguity. And the conservatives began to be concerned that Chevron, instead of being a restraint on regulation, was actually making these laws more powerful.”

The new conservative majority on the high court has handed down a series of decisions carving out what are essentially exceptions to Chevron—situations in which the courts need not defer to an agency’s interpretation of a statute. The cases cover a broad range of government activities, including the scope of tax credits under the Affordable Care Act and requirements for COVID-19 vaccination or testing in the workplace.

The most prominent exception, known as the “major questions” doctrine, states that an agency can’t carry out a major shift in government policy without explicit orders from Congress. “It says that, when the issues are sufficiently significant, politically controversial, and affect large segments of the public and substantial resources, the agency is not going to be given authority unless it can point to clear authorization in the statute,” Merrill explains. Chief Justice John Roberts used the phrase in West Virginia v. Environmental Protection Agency , a landmark 2022 decision in which the court invalidated the agency’s Clean Power Plan to reduce carbon dioxide emissions.

Despite those new carve-outs, court watchers say a ruling overturning Chevron would be a very big deal. “For 4 decades, Congress has written new statutes on the premise that this is how they will be interpreted, and lots of companies and organizations have ordered their affairs based on it,” Doniger says.

Merrill believes the Supreme Court agreed to hear Loper because a rule that applies to herring boats is clearly not a major question. And he thinks the court will shy away from giving judges a free hand to block anything they see as government overreach.

“My guess is that the court will say that Chevron is still the framework for cases involving minor questions, rather than major questions,” he says. “But it may also make a few revisions that move away from the maximalist interpretation of the doctrine, that whenever there’s uncertainty in the law, the agency’s view should prevail.”

Even small changes in Chevron could have major consequences, Doniger says. Congress isn’t capable of writing legislation that spells out exactly how every provision should be implemented, he argues. “The bandwidth isn’t there, the expertise isn’t there,” he says. He adds that such legislation would be extremely difficult to pass in the current hyperpartisan political climate and slim majorities in Congress.

NRDC hasn’t decided whether to file a brief in support of the government. But Doniger offered this preview of what he might tell the high court. “Whatever decision that you announce to modify or replace Chevron, you’ve got to take into account the implications for having a government that can address modern problems,” he says. “So, tread carefully.”