“A fight over fishery regulations could spell trouble for Chevron deference,” writes Jackson Nichols L’24 at The Regulatory Review.
Writing for The Regulatory Review, Jackson Nichols L’24 peers into the murky future of an important but controversial legal doctrine known as Chevron deference. Nichols explores the potential implications of a forthcoming Supreme Court ruling in Loper Bright Enterprises v. Raimondo.
From The Regulatory Review:
Last month, the Supreme Court decided it would hear a case contesting a National Marine Fisheries Service (NMFS) rule requiring certain regulated fishing vessels not only to carry federal monitoring personnel onboard, but also to pay the salaries of these monitors if federally funded inspectors are unavailable. Vessel operators went to court to protest NMFS’s imposition of financial obligations on it under the rule.
After losing in the lower courts, the fishing operators have appealed to the Supreme Court. In accepting the appeal, the Court announced that it will be focusing its review on one question: whether to overrule—or at least clarify—a Supreme Court precedent known as Chevron v. NRDC.
Decided in 1984 by a unanimous court, Chevron established a two-pronged approach for lower federal courts to follow when interpreting federal agencies’ interpretations of ambiguous statutory provisions. First, if a provision’s statutory language is “unambiguous,” a court must reject any agency’s position that is “contrary to clear congressional intent.” But if the statute is deemed “silent or ambiguous,” then a court must analyze whether the agency’s construction is reasonable, and therefore permissible.
If a statute is ambiguous but leaves a gap in the statutory scheme, the Court takes its direction from whether agency discretion is explicit or implicit. If the statute is ambiguous but explicitly gives agencies authority to fill a gap, Chevron concluded that the agency interpretation should be given “controlling weight” as long as the interpretation is not “arbitrary, capricious, or manifestly contrary” to the statute. If a court deems Congress to have delegated authority to an agency only implicitly, a court still “may not substitute its own construction” as long as the agency’s interpretation is reasonable.
Overall, the Supreme Court in Chevron viewed gaps—either express or implied—left by Congress in statutory schemes as intentional delegations of authority to the agency deserving of deference… .
The Regulatory Review is a daily online publication that provides accessible coverage of regulatory policymaking and enforcement issues across a full range of regulatory topics and from a variety of perspectives.
Launched in 2009 and operating under the guidance of Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science, The Review is edited by students at Penn Carey Law. It is part of the overarching teaching, research, and outreach mission of the Penn Program on Regulation (PPR), which draws together more than 60 faculty from across the University of Pennsylvania.