Released January 18, 2024 | SUGAR LAND
en
Written by John Egan for Industrial Info Resources (Sugar Land, Texas)--The U.S. Supreme Court heard oral arguments Wednesday on a case involving whether herring fishermen can be compelled to pay for a federal program to better manage fisheries. But depending on how the court rules, the implications could swamp the regulatory authority of executive branch agencies, including, among others, the U.S. Environmental Protection Agency (EPA) (Washington, D.C.) and the U.S. Department of Energy(DOE) (Washington, D.C.) as well as various branches of the Department of the Interior (DOI) (Washington, DC.) and the U.S. Department of Transportation (DOT) (Washington, D.C.).
All of those agencies, and more, issue rules that affect nearly every industry tracked by Industrial Info.
This is the case, and the court, that the conservative bar has sought for 40 years, ever since the "Chevron Doctrine" was first promulgated by the court in 1984. In that case, Chevron v. Natural Resources Defense Council, the high court ruled 6-0, with three abstentions, that administrative agencies have the authority to issue rules and interpret statutes, some of which could be quite complex, providing Congress passed a law that was silent or ambiguous on details and the agency acted reasonably in interpretating or implementing that law. In essence, how much deference that courts should give to federal agencies' interpretations of the laws that they administer or interpret? For more about the Chevron Doctrine, see October 4, 2023, article - Supreme Court Case to Determine Scope of Federal Agency Jurisdiction.
In one of the cases argued Wednesday, Relentless v. Department of Commerce, the high court was asked to decide if a provision of the Magnuson-Stevens Act gives the U.S. Secretary of Commerce's National Marine Fisheries Service the power to implement a comprehensive fishery management program and require the fishing industry to pay for the cost of that program at a cost of about $710 per boat per day.
The facts of that case are pretty far removed from the details of regulating power plant carbon dioxide (CO2) emissions, setting vehicle mileage and tailpipe emissions standards, permitting oil and gas drilling on federal lands or greenlighting an oil & gas pipeline. But the back and forth from the justices and lawyers made it apparent that some justices were eager to trim or reverse the court's four-decade-old ruling in Chevron while others wanted to make minor changes or leave it intact.
Chief Justice John Roberts generally has preferred to vote to make incremental changes to existing law, rather than seeking to make far-reaching changes that reverse settled law and precedent or break fundamentally new legal ground.
On Wednesday, some justices questioned why it was necessary to go as far as to overturn a 40-year-old legal doctrine that the high court has declined to use in nearly a decade.
"How much of an actual question on the ground is this?" asked the chief justice, noting that the court has for years been moving away from the Chevron Doctrine, according to a report in E&E News.
Justice Amy Coney Barrett, who frequently votes alongside Roberts, noted that the doctrine has been used to decide decades' worth of regulatory cases and asked whether overturning Chevron would throw all those rulings into question.
"Isn't it inviting a flood of litigation?" Barrett asked.
But Associate Justice Brett Kavanaugh criticized the "internal inconsistency" of the doctrine. The doctrine includes a footnote that says courts should use all the tools available to them before getting to "step 2" of Chevron analysis, where judges decide that an agency action is reasonable after deciding that the law is unclear.
The court's three-member liberal wing was deeply critical of efforts to curtail or overturn Chevron.
"I see Chevron as doing the very important work of helping courts stay away from policymaking," said Justice Ketanji Brown Jackson, according to a report in E&E News. "My concern is if we take away something like Chevron, the court will suddenly become a policymaker. How can we avoid that?"
Justice Elena Kagan provided a long list of prior cases and hypotheticals in which Congress has had a difficult time providing specifics and left that work up to expert agencies.
The third liberal justice, Sonia Sotomayor, questioned why it is wrong for courts to rely on agency expertise when deciding cases on issues judges know nothing about: "The question is who makes the choice, or helps you make the choice."
Despite Roberts being chief justice, he has only one vote on the nine-member court, where conservative justices hold a 6-3 majority. But the court's conservative majority does not hew to the traditional understanding of "conservativism," i.e., moving cautiously, making incremental changes, preferences for small government and market solutions as well as respect for precedent. Today, a moderate like Roberts in the minority, unable to bend a more activist conservative court majority to his will, as shown most notably in last term's decision in Dobbs v. Jackson Women's Health Organization, which reversed 50 years of constitutional law and precedent over a woman's right to an abortion.
One of the lawyers seeking to overturn the Chevron Doctrine, representing two Atlantic Ocean herring fishing companies, Loper Bright Enterprises and Relentless, Inc., wrote in a pre-argument brief that that doctrine usurps the judiciary's responsibility to decide the meaning of statutes. "Acquiescence is mandatory so long as the agency's interpretation falls within an ill-defined zone of reasonableness--even if the judge believes the agency's interpretation is wrong," the lawyer wrote in a brief reported by CNN. The ruling in the Chevron case "forces judges to abdicate their most important duty: to faithfully apply the law."
Another lawyer representing the fishing companies told the court that it has established a pattern of disregarding the Chevron Doctrine in favor of limiting the reach of administrative agencies. "Thus, the question is less whether this Court should overrule (the) Chevron (decision), and more whether it should let lower courts and citizens in on the news," the lawyer wrote. "The reality is that Chevron has already proven itself unworkable, and its corrosive effects on our separation of powers have lingered long enough."
Those lawyers were opposed by, among others, lawyers from the U.S. Department of Justice. "Overruling Chevron would be a convulsive shock to the legal system," U.S. Solicitor General Elizabeth Prelogar said in a plea defending the Chevron Doctrine. "Chevron gives appropriate weight to the expertise, often of a scientific or technical nature, that federal agencies can bring to bear in interpreting federal statutes," she wrote in a brief before the oral arguments that was reported by CNN.
"All three Branches of government, regulated parties, and the public have arranged their affairs for decades with Chevron as the backdrop against which Congress legislates, agencies issue rules and orders, and courts resolve disputes about those agency actions," she wrote.
The government's argument may fall on deaf ears for justices committed to cutting the reach of administrative agencies, who believe that the ever-broadening authority of those agencies usurps authority that rightly belongs to Congress or state legislatures.
Several conservative associate justices, including Clarence Thomas and Neil Gorsuch, have explicitly championed scaling back or reversing the Chevron decision. Other conservative associate justices, including Samual Alito, author of the Dobbs decision, have been willing to cast aside settled law and respect for precedent in pursuit of rulings that align with their views about the proper roles and responsibilities of the Legislative, Executive and Judicial branches of U.S. government.
Industrial Info Resources (IIR) is the leading provider of industrial market intelligence. Since 1983, IIR has provided comprehensive research, news and analysis on the industrial process, manufacturing and energy related industries. IIR's Global Market Intelligence (GMI) platform helps companies identify and pursue trends across multiple markets with access to real, qualified and validated plant and project opportunities. Across the world, IIR is tracking over 200,000 current and future projects worth $17.8 Trillion (USD).
All of those agencies, and more, issue rules that affect nearly every industry tracked by Industrial Info.
This is the case, and the court, that the conservative bar has sought for 40 years, ever since the "Chevron Doctrine" was first promulgated by the court in 1984. In that case, Chevron v. Natural Resources Defense Council, the high court ruled 6-0, with three abstentions, that administrative agencies have the authority to issue rules and interpret statutes, some of which could be quite complex, providing Congress passed a law that was silent or ambiguous on details and the agency acted reasonably in interpretating or implementing that law. In essence, how much deference that courts should give to federal agencies' interpretations of the laws that they administer or interpret? For more about the Chevron Doctrine, see October 4, 2023, article - Supreme Court Case to Determine Scope of Federal Agency Jurisdiction.
In one of the cases argued Wednesday, Relentless v. Department of Commerce, the high court was asked to decide if a provision of the Magnuson-Stevens Act gives the U.S. Secretary of Commerce's National Marine Fisheries Service the power to implement a comprehensive fishery management program and require the fishing industry to pay for the cost of that program at a cost of about $710 per boat per day.
The facts of that case are pretty far removed from the details of regulating power plant carbon dioxide (CO2) emissions, setting vehicle mileage and tailpipe emissions standards, permitting oil and gas drilling on federal lands or greenlighting an oil & gas pipeline. But the back and forth from the justices and lawyers made it apparent that some justices were eager to trim or reverse the court's four-decade-old ruling in Chevron while others wanted to make minor changes or leave it intact.
Chief Justice John Roberts generally has preferred to vote to make incremental changes to existing law, rather than seeking to make far-reaching changes that reverse settled law and precedent or break fundamentally new legal ground.
On Wednesday, some justices questioned why it was necessary to go as far as to overturn a 40-year-old legal doctrine that the high court has declined to use in nearly a decade.
"How much of an actual question on the ground is this?" asked the chief justice, noting that the court has for years been moving away from the Chevron Doctrine, according to a report in E&E News.
Justice Amy Coney Barrett, who frequently votes alongside Roberts, noted that the doctrine has been used to decide decades' worth of regulatory cases and asked whether overturning Chevron would throw all those rulings into question.
"Isn't it inviting a flood of litigation?" Barrett asked.
But Associate Justice Brett Kavanaugh criticized the "internal inconsistency" of the doctrine. The doctrine includes a footnote that says courts should use all the tools available to them before getting to "step 2" of Chevron analysis, where judges decide that an agency action is reasonable after deciding that the law is unclear.
The court's three-member liberal wing was deeply critical of efforts to curtail or overturn Chevron.
"I see Chevron as doing the very important work of helping courts stay away from policymaking," said Justice Ketanji Brown Jackson, according to a report in E&E News. "My concern is if we take away something like Chevron, the court will suddenly become a policymaker. How can we avoid that?"
Justice Elena Kagan provided a long list of prior cases and hypotheticals in which Congress has had a difficult time providing specifics and left that work up to expert agencies.
The third liberal justice, Sonia Sotomayor, questioned why it is wrong for courts to rely on agency expertise when deciding cases on issues judges know nothing about: "The question is who makes the choice, or helps you make the choice."
Despite Roberts being chief justice, he has only one vote on the nine-member court, where conservative justices hold a 6-3 majority. But the court's conservative majority does not hew to the traditional understanding of "conservativism," i.e., moving cautiously, making incremental changes, preferences for small government and market solutions as well as respect for precedent. Today, a moderate like Roberts in the minority, unable to bend a more activist conservative court majority to his will, as shown most notably in last term's decision in Dobbs v. Jackson Women's Health Organization, which reversed 50 years of constitutional law and precedent over a woman's right to an abortion.
One of the lawyers seeking to overturn the Chevron Doctrine, representing two Atlantic Ocean herring fishing companies, Loper Bright Enterprises and Relentless, Inc., wrote in a pre-argument brief that that doctrine usurps the judiciary's responsibility to decide the meaning of statutes. "Acquiescence is mandatory so long as the agency's interpretation falls within an ill-defined zone of reasonableness--even if the judge believes the agency's interpretation is wrong," the lawyer wrote in a brief reported by CNN. The ruling in the Chevron case "forces judges to abdicate their most important duty: to faithfully apply the law."
Another lawyer representing the fishing companies told the court that it has established a pattern of disregarding the Chevron Doctrine in favor of limiting the reach of administrative agencies. "Thus, the question is less whether this Court should overrule (the) Chevron (decision), and more whether it should let lower courts and citizens in on the news," the lawyer wrote. "The reality is that Chevron has already proven itself unworkable, and its corrosive effects on our separation of powers have lingered long enough."
Those lawyers were opposed by, among others, lawyers from the U.S. Department of Justice. "Overruling Chevron would be a convulsive shock to the legal system," U.S. Solicitor General Elizabeth Prelogar said in a plea defending the Chevron Doctrine. "Chevron gives appropriate weight to the expertise, often of a scientific or technical nature, that federal agencies can bring to bear in interpreting federal statutes," she wrote in a brief before the oral arguments that was reported by CNN.
"All three Branches of government, regulated parties, and the public have arranged their affairs for decades with Chevron as the backdrop against which Congress legislates, agencies issue rules and orders, and courts resolve disputes about those agency actions," she wrote.
The government's argument may fall on deaf ears for justices committed to cutting the reach of administrative agencies, who believe that the ever-broadening authority of those agencies usurps authority that rightly belongs to Congress or state legislatures.
Several conservative associate justices, including Clarence Thomas and Neil Gorsuch, have explicitly championed scaling back or reversing the Chevron decision. Other conservative associate justices, including Samual Alito, author of the Dobbs decision, have been willing to cast aside settled law and respect for precedent in pursuit of rulings that align with their views about the proper roles and responsibilities of the Legislative, Executive and Judicial branches of U.S. government.
Industrial Info Resources (IIR) is the leading provider of industrial market intelligence. Since 1983, IIR has provided comprehensive research, news and analysis on the industrial process, manufacturing and energy related industries. IIR's Global Market Intelligence (GMI) platform helps companies identify and pursue trends across multiple markets with access to real, qualified and validated plant and project opportunities. Across the world, IIR is tracking over 200,000 current and future projects worth $17.8 Trillion (USD).
