WASHINGTON – A 40-year-old Supreme Court precedent that over the years has become a nightmare for the right because it is seen as bolstering the power of federal agencies could be on the chopping block as current justices consider on Wednesday if they should revoke it. .
The court, which has a 6-3 conservative majority and is skeptical of broad claims of federal agency authority, is hearing oral arguments in two related cases involving a fisheries regulation that questions whether the 1984 ruling in Chevron v. The Natural Resources Defense Council should be consigned to history.
Ironically, at the time it was decided, Chevron was a victory for the Reagan administration’s deregulatory efforts, with the court ruling that judges should defer to federal agencies to interpret the law when the language of a statute is ambiguous. .
The ruling allowed the Environmental Protection Agency to move forward with a Clean Air Act regulation that was favorable to polluting facilities, much to the chagrin of environmental groups who wanted the court to give the agency less leeway.
During that period, the EPA was led by Anne Gorsuch, the mother of current Supreme Court Justice Neil Gorsuch, although she had left office after a scandal about the agency’s handling of the contamination cleanup at the time the case was discussed. Judge Gorsuch has been a open critic of the Chevron ruling.
In practice, the decision meant that both Democratic and Republican presidents could take advantage of the flexibility it gave agencies to implement new regulations on a wide range of issues.
Decades later, with business interests and conservatives more hostile than ever to what they call the “administrative state,” the precedent It came to be seen, at least on the right, as more beneficial to progressives, who want to make aggressive use of the power of federal agencies, than to conservatives.
“Actually, the mission of the other side is to make it very, very difficult to pass laws that create effective programs that address modern problems. The real objective is [to] diminish the power of the federal government,” said David Doniger, the environmental lawyer who argued and lost the 1984 case.
Environmental groups and others on the left hope to keep the ruling in place so agencies can tackle difficult issues like climate change, especially in the absence of Congress passing major legislation.
Jonathan Adler, a professor at Case Western Reserve University School of Law, said there have always been disagreements among lawyers and academics about how courts should apply the Chevron ruling.
“This has been around for a while, but certainly on the right there is concern that … agencies are not faithfully executing Congress’s instructions but are trying to find ways to do what they want to do,” he said. saying.
But, he added, “the question is whether it is necessary to overthrow Chevron to stop that dynamic.”
The Supreme Court has already addressed the question of how agencies exercise broad power without clear direction from Congress from another angle in recent rulings that struck down President Joe Biden’s federal student loan debt relief plan, blocked his coronavirus vaccination Covid or the testing requirement for larger companies and curbed the EPA’s Authority to Limit Carbon Emissions from Power Plants.
Those cases did not rely on Chevron’s analysis, but simply said that on issues of broad national impact, there needs to be explicit congressional authorization, an approach known as the “major issues doctrine.”
Both cases discussed Wednesday involve a challenge to a narrower government regulation that would require fishing vessels to help fund the collection of scientific data to help with fisheries conservation and management.
The court accepted appeals filed by fishing vessel operators active in the herring fishery off the Atlantic Coast, who challenged the 2020 rule that applies to New England fisheries. In both cases, the lower courts ruled in favor of the federal government.
The challengers say the National Marine Fisheries Service, the federal agency that oversees ocean resources, had no authority to issue the regulation under the relevant law, the Magnuson-Stevens Fisheries Conservation and Management Act of 1976.
The rule implements a monitoring program that vessel operators must fund. The challengers claim that operators would have to pay up to $710 a day at certain times to have independent observers board their vessels and monitor their operations. The cost would be a significant burden on small owner-operators, challengers say.
The fisheries dispute is one of several in the current court term in which judges are considering attacks on the power of federal agencies led by business interests and the conservative legal establishment.
The composition of the court itself reflects another front in the war: The Trump administration has specifically selected judicial nominees, in part based on their hostility to the federal bureaucracy. The Supreme Court’s conservative majority includes three Trump appointees, including Gorsuch.
“Here’s a coherent plan where really the judicial selection and the deregulatory effort are really the other side of the same coin,” Trump’s White House lawyer Don McGahn said at the briefing. Conservative Political Action Conference in 2018.