By Ryan Steen
On June 28, the U.S. Supreme Court issued an opinion — in a commercial fishing case no less — that quickly attracted the attention of anyone who deals with federal agencies. Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024). Why was the decision in Loper Bright so popular (or unpopular)? Because the Supreme Court, in no uncertain terms, did away with “Chevron deference”— a longstanding principle of law established 40 years ago in the Supreme Court’s decision in Chevron U.S.A., Inc v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Below, I briefly summarize Chevron and Loper Bright, and provide some thoughts on what the new decision means as a practical matter.
Ryan Steen of Stoel Rives LLP is a member of the
Maine Lobstermen's Association legal team.
Lawsuits challenging federal agency decisions under the Administrative Procedure Act (APA) often involve ambiguous statutory language. In such lawsuits, Chevron required courts to defer to the agency so long as the agency’s position was based on a “permissible construction of the statute.” The court was constrained to defer to the agency even if the court thought there was a better interpretation of the statute.
In Loper Bright, the Supreme Court observed that “Chevron deference” was fundamentally at odds with the purpose of the APA, which was enacted by Congress “as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” United States v. Morton Salt Co., 338 U.S. 632, 644 (1950). Chevron deference hampered the ability of courts to exact a meaningful “check upon” federal agencies, as Congress intended.
The Supreme Court further explained that “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.” Loper Bright, 144 S. Ct. at 2266. Although courts do give some degree of deference to an agency’s factual or scientific findings, which are generally within the province of agency expertise, agencies are not the experts on the law. And “[i]n the business of statutory interpretation, if it is not the best, it is not permissible.” Id. Only courts can determine “the best” interpretation of a statute. The Supreme Court thus summed it up succinctly: “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.” Id. at 2273.
Although Loper Bright arguably just restores a form of judicial authority that was always intended by Congress under the APA, it is no doubt a watershed moment in administrative law because Chevron had occupied the field for decades. But what does this mean as a practical matter, and particularly for the Maine lobster fishery?
For the plaintiff-fishermen in the Loper Bright case itself, the decision is hugely impactful. They sued the National Marine Fisheries Service (NMFS), challenging a new rule that would have imposed a very expensive vessel observer requirement and required the fishery to pay for it. NMFS claimed that the Magnuson-Stevens Fishery Conservation and Management Act gave it authority to impose such a requirement and that its interpretation of the statutory provision at issue was entitled to deference. The Supreme Court rejected NMFS’s argument, vacated the challenged regulation, and saved the day for the plaintiffs.
As a general matter, the Loper Bright decision will impact both how agencies make decisions and how courts review those decisions. When making decisions, agencies will have to carefully consider and explain their interpretations of the law, knowing they will not receive any deference on those interpretations if they are challenged in court. When those decisions are challenged in court, the plaintiffs will have a leg up. They will not have to clear the “Chevron deference” hurdle and will need only to convince the court that there is a better interpretation of the governing statute than has been advanced by the agency.
This is hardly a partisan result. The boost given by Loper Bright to future plaintiffs challenging federal agency decisions applies equally to individuals, industry, state governments, and non-profit organizations — all of which frequently sue federal government agencies. Additionally, Loper Bright empowers judges to reject agency interpretations that they do not believe represent the best reading of the law. Judges are human and cover the full spectrum of legal philosophies and political ideologies. Depending on the particular judge assigned to a given case, a plaintiff may either appreciate or resent the authority Loper Bright has returned to the judge.
As it concerns the lobster fishery, Loper Bright is relevant to decisions by federal government agencies, such as NMFS, based on laws that affect the fishery, such as the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA). For example, the Loper Bright decision will almost certainly play a key role in any challenges to new “take reduction plan” regulations issued by NMFS under the MMPA and to new biological opinions issued by NMFS under the ESA. Agency decisions under the MMPA and ESA almost inevitably involve NMFS’s interpretation of ambiguous statutory provisions.
So, if the lobster fishery is again forced to challenge a NMFS decision in court, then, under Loper Bright, NMFS will receive no deference on its interpretation of the law. But this works both ways. Environmental groups challenging NMFS’s decisions affecting the lobster fishery will also enjoy the boost provided by Loper Bright. Loper Bright will therefore make it more difficult for NMFS to defend its decisions against lawsuits by any plaintiff. This will presumably cause NMFS to think longer and harder about its decisions and—one would hope—reach conclusions that are the best interpretation of the law.
NMFS has traditionally not been very good in that arena, as the MLA v. NMFS decision demonstrated. Time will tell if Loper Bright causes NMFS to make more defensible decisions. If it does not, there will assuredly be various plaintiffs eager to haul the agency back into court.
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