HERRING LAWSUIT COULD THREATEN NATIONWIDE CONSERVATION EFFORTS

 

Nearly forty years ago, the United States Supreme Court decided Chevron U.S.A. Inc. v. Natural Resources Defense Council, handing down a decision that created one of the most important principles of administrative law, which has since been called the “Chevron Doctrine.”

Chevron v. NRDC involved a challenge to the Environmental Protection Agency’s interpretation of the phrase “stationary sources” of air pollution, which appears in the Clean Air Act.  The statute itself did not provide a clear definition, so the EPA adopted a definition which would satisfy the agency’s policy goals.  The Natural Resources Defense Council, believing that the EPAs definition was inconsistent with the purpose of the law, brought litigation, seeking to have the court, rather than the EPA, determine legislative intent.

The Supreme Court sided with the agency, issuing a decision which read, in part

“When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions.  First, always, is the question whether Congress has directly spoken to the precise question at issue.  If the intent of Congress is clear, that is the end of the matter…If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of administrative interpretation.  Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute…

“If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation…Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit.  In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.

“We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer…

“[A]n agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.  While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for the political branch of the Government to make such policy choices—resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.

“When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of an agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress the challenge must fail…”

The Chevron Doctrine has been relied on by administrative agencies ever since, and has been widely applied to agency decisions that impact every phase of human activity, including fisheries management and far broader air, water, and land use issues.  Abrogating the doctrine would make it far more difficult for agencies to operate, and cripple many efforts to regulate potential harmful activities.

Yet that is just what some New Jersey herring fishermen are trying to do.

Loper Bright Enterprises v. Raimondo involves what the trial court described as “a collection of commercial fishing firms headquartered in southern New Jersey that participate regularly in the Atlantic herring fishery,” which challenged a final rule issued by the National Marine Fisheries Service, the so-called New England Industry-Funded Monitoring Omnibus Amendment which, among other things, implements a mandatory industry-funded observer program in the Atlantic herring fishery.

The plaintiffs alleged that the adoption of the final rule was procedurally flawed, that it violates provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and that the industry-funded monitoring requirement constitutes an unconstitutional tax.  They are represented by the Cause of Action Institute, which bills itself as

“a 501(c)(3) oversight group advocating for economic freedom and individual opportunity advanced by honest, accountable, and limited government.”

As such blurb suggests, it champions right-wing causes, including the weakening of regulatory protections of publicly-owned natural resources, in order to increase commercial exploitation.

The frightening thing is that, in the Loper Bright matter, they just might succeed.

Loper Bright didn’t fare well at the trial level, where the court noted that, pursuant to Magnuson-Stevens, fishery management plans may

“require that one or more observers be carried on board a vessel of the United States engaged in fishing for species that are subject to the plan, for the purpose of collecting the data necessary for the conservation and management of the fishery,”

and cited another court’s decision, which recognized that

“Fisheries regulation requires highly technical and scientific determinations that are within the agency’s expertise, but are beyond the ken of most judges.”

Applying the Chevron Doctrine to the facts of the case, as well as considering many other arguments in the course of a long and detailed decision, the trial court ruled against the plaintiffs.

Looper Bright didn’t fare any better in the Court of Appeals, where the issues in controversy were narrowed down to plaintiffs’ claims that Magnuson-Stevens does not state that the industry may be required bear the cost of at-sea monitoring, and claims that the process used to promulgate and approve the final rule was improper.

The majority on the appellate panel engaged in an extensive Chevron analysis, and again ruled against the plaintiffs.  But one judge disagreed, and wrote a dissenting opinion.

The dissent claimed that

“Congress unambiguously did not”

authorize NMFS to require vessels engaged in the herring fishery to carry industry-funded monitors.  It argued that

“Congress’s silence on a given issue does not automatically create such ambiguity or give an agency carte blanche to speak in Congress’s place.  In fact, all else equal, silence indicates a lack of authority.

“That means that when an agency’s action is challenged, it is not the challenger’s job to show that Congress has specifically prohibited the challenged action.  Holding challengers to that burden would be ‘entirely untenable.’  Instead, an agency must positively demonstrate where Congress explicitly or implicitly empowered it to act…

“Even if the Fisheries Service had found a few outliers, it is not usual to require a regulated party to pay the wages of its monitor when the statute is silent.  Nor is it expected.  In short, it is not the type of thing that goes without saying.  And Congress didn’t say it.”

The dissent then went on a fairly wild flight of imagination, seeking to justify the view that language in Magnuson-Stevens, which states that fishery management plans

“may prescribe such other measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery,”

is not an implicit authorization of industry-funded monitors, writing

“the logic of the Fisheries Service’s argument could lead to strange results.  Could the agency require the fishermen to drive regulators to their government offices of gas gets too expensive?  Having the agency officials at work may be “appropriate” for “management of the fishery.”  Yet I doubt that Congress meant to allow for free fishermen chauffeurs.

“Or what if Congress was to entirely defund the compliance components of the Fisheries Service—could the agency continue to operate by requiring the industry to fund a legion of independent contractors to replace the federal employees?  That generous interpretation of ‘necessary and appropriate’ could undermine Congress’ power of the purse.  So although the words ‘necessary and appropriate’ may be broad, they cannot be as limitless as the Fisheries Service suggests…”

Such language may seem extreme and a little ridiculous, but it is nonetheless the language of a federal appellate judge.  More than a few judges have been appointed to the highest courts in the country because they appear to support equally ridiculous positions, that are favored by various industries and so by the members of Congress who curry such industries' favor.

Looper Bright Enterprises has now filed a petition for certiorari to the U.S. Supreme Court, where the Chevron Doctrine has been under siege by some justices, and appears to have fallen into some disfavor, although it has not yet been overruled.

Should the Supreme Court grant the petition, and so agree to hear the case, it would be a very strong sign that the majority intends to either severely limit or overturn Chevron.

Should that occur, federal agencies, including those charged with protecting clean air and water, and with conserving natural resources ranging from timber to migratory birds to endangered species, will be badly handicapped, and find it very difficult to adequately perform their tasks.

Which, of course, is exactly what the many industry-friendly organizations supporting the Looper Bright plaintiffs intend.

If they prevail, marine fish stocks will comprise a relatively small part of the resulting casualties.