After June 28, 2024, when the
United States Supreme Court handed down its decision in Loper
Bright Enterprises v. Raimondo (Loper Bright), some of the
commentary in both the popular press and various legal publications made it
sound as if the sky had fallen. One opinion
article in the Tampa Bay Times went so far as to proclaim,
“U.S. fisheries could be devastated by Supreme Court’s ending the Chevron
doctrine.”
Such reactions are almost
certainly overblown, at least with respect to fisheries issues. To understand
why, one must take a look not only at the lawsuit and the court’s decision, but
also at the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens), which
governs all fishing in the marine waters of the United States.
The Issues Underlying Loper
Bright
Loper Bright was
brought by a group of Atlantic herring fishermen who challenged a National
Marine Fisheries Service (NMFS) regulation that required such fishermen to
carry industry-funded observers aboard their vessels, which cost vessel owners
as much as $710 per day. The fishermen argued that Magnuson-Stevens did not
authorize NMFS to impose industry-funded observers on Atlantic herring vessels,
while NMFS argued that language in Magnuson-Stevens, which authorizes it to
“require that one or more observers be carried upon a vessel of the United
States engaged in fishing…for the purpose of collecting data,” when read
together with other language that permitted the agency to impose “measures,
requirements, or conditions and restrictions as are determined to be necessary
and appropriate for the conservation and management of the fishery” gave it all
the authority that it needed to require the observers.
The fishermen argued that, while
the statute did allow NMFS to require observers aboard fishing vessels, and
stated that observers must be carried in a few specified fisheries, nothing in
the law authorized NMFS to force Atlantic herring fishermen to pay for the
observers carried aboard their vessels. They also noted that NMFS had
originally paid for the herring observers, but that a change to the management
plan, made in 2013, allowed NMFS to require industry funding if federal funding
became unavailable.
The
trial court, after weighing both sides’ arguments, found that there was
some ambiguity in Magnuson-Stevens’ language, and invoked the so-called “Chevron doctrine,”
created by the Supreme Court when it decided Chevron U.S.A.
v. Natural Resources Defense Council (Chevron v. NRDC) in
1984.
In Chevron v. NRDC,
the court found that, “if…the court determines that 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 an
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.” The
Court thus gave administrative agencies, rather than the courts, the power to
interpret the meaning of certain statutes, writing, “a court may not substitute
its own construction of a statutory provision for a reasonable interpretation
made by the administrator of an agency.”
The trial court applied the Chevron doctrine
to the issues raised in Loper Bright, and found that NMFS had the
authority to require industry-paid observers in the Atlantic herring fishery.
The United States Court of Appeals for the District of Columbia Circuit affirmed
the trial court’s decision, although one member of the three-judge panel
dissented, and would have had the court find for the fishermen.
However, the Supreme Court
disagreed with the lower courts’ analyses. While it did not decide whether
Magnuson-Stevens authorized NMFS to require industry-paid observers in the
Atlantic herring fishery, and remanded that matter for the Court of Appeals to
decide, it overruled the Chevron doctrine, finding that only
the courts, and not administrative agencies, had the authority to interpret the
meaning of federal laws.
Chevron Was Never
Consistently Applied
While most observers expected the
Supreme Court to limit the Chevron doctrine’s application,
fewer expected the doctrine to be completely overturned. Yet, throughout much
of the Chevron doctrine’s history, the court has demonstrated
at least some skepticism about its use.
In 2018, Michael Kagan, a
professor at the University of Nevada, Las Vegas William S. Boyd School of Law,
published an article titled “Loud
and Soft Anti-Chevron Decisions” in the Wake Forest Law
Review, where he pointed out multiple occasions on which the Supreme Court
chose to ignore, or at least find a way to work around, its holding in Chevron
v. NRDC. He noted that
To a great extent, the current analytical
challenge in administrative law is not new—it is just more out in the open.
Since the early days of the doctrine, the trouble with Chevron has
been in understanding why the Court does one thing in one case but another
thing in another case. The problem is not that the court has sometimes
explicitly indicated that there are exceptions to this doctrine…Instead, the
problem is that the Court far more frequently fails to follow Chevron’s normal
two-step analysis in cases to which it seems to apply and then does not explain
why. Explaining this inconsistency has long been a preoccupation of
administrative law scholarship…
At least one scholar has recently
suggested that the Court’s “failure to apply Chevron where it
would seem to apply,” should be seen as a signal of reluctance about “a
full-throated Chevron doctrine…
The clearest expressions of
doctrinal doubts are what can be called “loud” anti-Chevron decisions,
where the judges actually articulate a limitation on or a critique of the
doctrine…The bigger difficulty concerns the many decisions in which the Supreme
Court failed to apply Chevron when it ostensibly should have
mattered or applied it is such a way as to render the doctrine irrelevant.
Kagan also notes that, in the
beginning, the Chevron doctrine wasn’t viewed as a major
change in administrative law, particularly by the Supreme Court.
The doctrinal meaning typically attributed
to the case has been much more than anyone would have anticipated from reading
the decision itself. The Chevron doctrine actually developed
through interpretation by lower courts than from an immediate understanding
that the Supreme Court had issued a watershed decision. In fact, it could be
said that the Chevron doctrine would more appropriately be
termed the General Motors doctrine, in honor of the D.C.
Circuit decision that seems to have been the first to cite and explain Chevron as
a major change in administrative law.
To further his argument, he
quotes Michael Herz’s 2015 article in the Columbia Law Review, “Chevron is
Dead; Long Live Chevron,” which opined that “Despite all the
attention…the ‘Chevron revolution’ never quite happens. This
decision, though seen as transformatively important, is honored in the breach,
in constant danger of being abandoned, and the subject of perpetual confusion
and uncertainty.”
The Supreme Court’s Reasoning
in Loper Bright
In the face of that sort of
judicial ambiguity and uneven application, it was probably only a matter of
time before the Chevron doctrine was modified, limited or, as
proved to be the case, completely overruled. While the court’s decision
in Loper Bright will undoubtedly cause some difficulties at
federal agencies, the basis for that decision was not, as some have suggested,
ideologically extreme. Instead, it was rooted in the plain language of the
federal Administrative
Procedure Act which, as the court noted, “prescribes procedures for
agency action and delineates the basic contours of judicial review of such
action.”
The relevant section of the
Administrative Procedure Act, Title
5, Section 706 of the United States Code, unambiguously states that “To the
extent necessary to decision and when presented, the reviewing court
shall decide all relevant questions of law, interpret constitutional
and statutory provisions, and determine the meaning or
applicability of the terms of an agency action. [emphasis added]” It was in
light of such language that the Supreme Court decided that the Chevron doctrine
was in direct conflict with the governing statute, and must be overturned.
How Will Loper Bright Impact
Magnuson-Stevens?
The important questions now, with
respect to marine conservation, are how the Loper Bright decision
might impact the application of the Magnuson-Stevens
Fishery Conservation and Management Act, and whether the NMFS’ efforts to
conserve and manage the nation’s living marine resources will be badly hampered
as a result.
Some within the conservation
community fear that the Loper Bright decision will do real
harm. They
fear that judges who lack the needed technical background and training
will attempt to decide between competing scientific arguments, and perhaps
substitute their own opinions for an agency’s considered determination.
However, the Loper Bright decision does not set the stage for
such outcome, as it merely confirms the courts’ sole authority to decide issues
of law and statutory interpretation.
Loper Bright does not
authorize the courts to substitute their judgement for that of the agencies
with respect to issues of fact.
The distinction between the
courts’ obligation to decide questions of law and the agencies’ responsibility
to decide questions of fact is clearly set out in the Loper Bright decision,
when it states,
The [Administrative Procedure
Act]…codifies for agency cases the unremarkable, yet elemental proposition…that
courts decide legal questions by applying their own judgment. It specifies that
courts, not agencies, will decide “all relevant questions of law” arising on
review of agency action (emphasis added)—even those involving ambiguous
laws—and set aside any such action inconsistent with the law as they interpret
it. And it prescribes no deferential standard for courts to employ in answering
those legal questions. That omission is telling, because Section 706 [of the
Administrative Procedure Act] does mandate that judicial review of agency
policymaking and factfinding be deferential.
Thus, an administrative agency
may, in its factfinding capacity, adopt the conclusions presented in presumably
objective research rather than those developed in industry-funded, and so
possibly biased, studies and, so long as the basis for its decision is clearly
articulated in the administrative record, have no fear that such factfinding
will be overturned by a reviewing court. The agency may use the results of such
research to formulate policy without worrying about such policy being
overturned during judicial review. But what an agency cannot do, under any
circumstances, is decide arguments about the scope or meaning of the statutes
that created the agency or define the scope of its authority for, in the wake
of the Loper Bright decision, adjudicating such arguments is
the sole responsibility of the courts.
When those principles are applied
to Magnuson-Stevens, there is little question that the Loper Bright decision
may prevent NMFS from expanding its authority beyond the bounds set out in the
statute, and from taking action that is not clearly authorized in such law.
Should NMFS base a regulatory action on its own interpretation of a statute,
the demise of the Chevron doctrine makes it more likely that
an aggrieved party will seek judicial review, and more likely that such party
will prevail. That being said, the Loper Bright decision is
unlikely to seriously degrade NMFS’ ability to conserve and manage the nation’s
living marine resources.
That is because there is little
ambiguity with respect to the core
conservation and management provisions of Magnuson-Stevens. The
National Standards for Fishery Conservation and Management are explicit, as are
the provisions establishing and authorizing the regional fishery management
councils. Magnuson-Stevens spells out which provisions that must be
included in fishery management plans, as well as what provisions may be
included in such plans. The duties of the Secretary of Commerce, with respect
to fisheries management, are clearly stated, as is the timeline for rebuilding
overfished stocks. While some ambiguities remain, one of which gave rise to
the Loper Bright case, the meaning of the law’s core
provisions, which have been challenged and interpreted by the courts on many
occasions, have generally been settled.
Because Magnuson-Stevens’ central
conservation and management provisions are clearly expressed, and have already
been subject to judicial review, it is unlikely that NMFS’ efforts to properly
conserve and manage fisheries resources will be unduly hampered by the Supreme
Court overruling the Chevron doctrine. Since the court’s
decision in Loper Bright explicitly recognizes that courts
must defer to agencies’ findings of fact, NMFS should still be able to use its
factfinding authority to determine whether a stock is overfished or
experiencing overfishing, and to set annual catch limits likely to rebuild
overfished stocks and maintain sustainable fisheries. It will merely have to
adopt management measures that clearly fall within the letter of the law.
Finally, when considering the
long-term impact of the Loper Bright decision, we should
always remember that the Chevron doctrine, when first applied
in Chevron v. NRDC, ultimately hindered the cause of conservation.
In the years since, the Chevron doctrine
has often been used to preserve an agency’s conservation initiatives, but we
should never forget that, in the future, voters might easily elect a new
president who is hostile to conservation concerns, and more than willing to
allow industry to pollute the air and water, and overexploit the nation’s
natural resources. Such an administration might well seek to interpret federal
laws in a way that creates a more industry-friendly regulatory environment, in
which those who pollute the air and water, or cause harm to living resources,
can easily escape significant sanctions.
Under such circumstances, we may
be grateful that the law doesn’t allow administrative agencies to issue their
own interpretations of the governing law, but rather subjects their actions to
judicial scrutiny that might keep at least some legislative safeguards in
place.
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This essay first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which can be found at http://conservefish.org/blog/
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