Assistant Professor Adam D. Orford offers insight into the upcoming case Loper Bright Enterprises v. Raimondo: "The case is significant because Chevron is potentially implicated any time a federal agency makes a rule to implement a federal statute and chooses to fill in gaps or do any other thing not specifically contemplated by Congress – and there are thousands of such rulemakings every year. As one of the most-used decision rules in the federal courts, any significant change to the way courts review agency rulemaking authority will have wide-ranging impacts on the functioning of the entire federal bureaucracy – particularly in a legislative environment like today's, where it is probably not possible for Congress to agree on legislation containing extremely detailed instructions on many issues that are currently the subject of regulation.”
University of Georgia School of Law Assistant Professor Adam D. Orford, whose interdisciplinary research investigates legal and policy approaches particularly as it relates to environmental protection, is available for further commentary at Adam.Orford@uga.edu.
Additional information regarding Loper Bright Enterprises v. Raimondo provided by Orford:
Note the U.S. Supreme Court is scheduled to hear oral arguments in this case on 1/17/24.
What are the primary issues in Loper Bright Enterprises v. Raimondo?
The case arises from a long-running dispute over whether the National Marine Fisheries Service can require fishing vessels to pay the costs of the in-person monitoring program mandated by the Magnuson-Stevens Fishery Conservation and Management Act. In-person monitoring is expensive, and the statute does not specifically say that the NMFS can charge fishing vessels for the associated costs, although it does say that the NMFS must run a monitoring program and can enact whatever other rules are "necessary and appropriate" to do so. The NMFS decided that the statute allows it to charge these costs to fishing vessels; the fishing vessel operators say the statute does not allow it.
Describe how the Chevron doctrine is being applied in this case.
Applying a traditional two-step test for reviewing agency statutory interpretations (the Chevron doctrine), the D.C. Circuit Court of Appeals ruled that the fisheries statute was silent on the matter in question, and therefore ambiguous, and decided that the NMFS's interpretation was a reasonable resolution of the ambiguity and upheld the NMFS interpretation, in deference to the agency. A dissenting judge also would have applied Chevron but would have ruled that the statute's silence on the issue of monitoring costs indicated congressional intent not to permit what the NMFS did.
What is the question the U.S. Supreme Court will address in this case?
The U.S. Supreme Court agreed to consider only the following question, posed by fishing vessel owners: "Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency."
What does "overruling Chevron" mean? Why is it important?
"Overruling Chevron" in this context means raising the bar for judicial review when agencies create rules based on statutes with gaps or ambiguities – although how high the bar might get raised is an open question. Currently, Chevron and its progeny require courts to grant agencies fairly substantial interpretive deference as long as there is some statutory justification for the agency's rule, even where the rules they create were not likely to have been what Congress specifically contemplated.
"Overruling Chevron" could mean removing that deference entirely or at least requiring more evidence from agencies that what they propose doing is consistent with congressional intent.
"Overruling Chevron" could also mean creating a new exception to the Chevron framework as applied by lower courts, or creating new presumptions about the meaning of statutory silence under the existing Chevron doctrine, or expanding the meaning of emerging doctrines, including particularly the "major questions doctrine," that limit agency powers to regulate beyond what a statute specifically describes.
What is significant about Loper Bright Enterprises v. Raimondo?
The case is significant because Chevron is potentially implicated any time a federal agency makes a rule to implement a federal statute and chooses to fill in gaps or do any other thing not specifically contemplated by Congress – and there are thousands of such rulemakings every year. As one of the most-used decision rules in the federal courts, any significant change to the way courts review agency rulemaking authority will have wide-ranging impacts on the functioning of the entire federal bureaucracy – particularly in a legislative environment like today's, where it is probably not possible for Congress to agree on legislation containing extremely detailed instructions on many issues that are currently the subject of regulation. A limiting of Chevron will make it substantially more difficult for Congress to achieve legislative consensus through ambiguity or agency delegation, making it more difficult for Congress to pass controversial legislation, and increasing the likelihood that agency efforts to fill in congressional intent will be struck down based on the policy preferences of a majority of the U.S. Supreme Court justices.
Why is the rise of the use of the major questions doctrine occurring? Is the U.S. Supreme Court trending away from Chevron deference in environmental cases particularly?
Fundamentally the shift is occurring because the Republican Party has successfully prioritized seating U.S. Supreme Court justices who subscribe to conservative judicial theories hostile to broad agency rulemaking powers. Environmental regulation is one of the most significant, impactful, controversial, and litigated bodies of regulatory law in the United States, and therefore environmental regulation is both heavily impacted and likely to give rise to these kinds of cases. But it is not the only place where the major questions doctrine has come up: the Supreme Court has also struck down efforts by the FDA to regulate tobacco, and the CDC to adopt an eviction moratorium during the COVID pandemic. Nonetheless, the Supreme Court's concern for agency overreach has been especially acute in cases regarding climate change regulation under the Clean Air Act, with two recent cases – UARG v. EPA and West Virginia v. EPA – invoking the doctrine to cabin environmental regulatory authority.
What are the key arguments/points you expect to be made from each side?
The U.S. Supreme Court's decision in West Virginia v. EPA has set out a number of factors regarding what might be a "major question," and so one part of the argument will be over how major, controversial, or impactful the NMFS monitoring rule is. The fishing vessel parties will argue that the issue in the case is similarly "major," while the other parties will argue that it is not. There will also be some argument over the unique aspects of the particular law at issue in this case. The government will argue that whatever the rules – this particular statute has authorized it to create "necessary and appropriate" rules – it is not really "silent" on the question, is not really "ambiguous," and anyway its interpretation it is consistent with the statutory scheme. Other parties will disagree. Finally, there will be argument over what the appropriate standard of review for agency interpretations is, i.e., the questions of the Chevron doctrine and its future. It is likely going to be difficult to untangle or separate these threads in the decision, as they are certain to all be present at once.
What do you think will be the likely ruling in Loper Bright Enterprises v. Raimondo?
Rather than expressly overruling Chevron, the U.S. Supreme Court is more likely to limit the potential scope of agency deference by speaking to the second part of the question presented, which was also the animating concern of a dissenting judge at the D.C. Circuit: what deference is due to an agency interpreting statutory “silence?” Although this area of law is so controversial and the justices are so fractured in their views that hazarding a guess on an outcome is almost entirely speculative, a Supreme Court majority could decide to expand on its recent statements about major questions in the context of agency attempts to resolve ambiguity where statutes do not expressly address the issue. I expect that the NMFS requirement will survive this review (fisheries monitoring costs are not a sufficiently major question, the statute allows broad enough discretion), but for the rules – the rules the Supreme Court uses to reach this conclusion – to be more stringent than previous rulings.