Chevron is dead, long live Loper

Jun 29, 2024

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Just what is —Chevron Usa Inc. V. Natural Resources Defense Council, Inc., 81 L. Ed. 2d 694 (1984)? Chevron is the case where the Supreme Court found that the courts, both the Supreme and the inferior courts, should defer to “permissible” agency interpretations of statutes those agencies administer.—Slip Opinion, Loper Bright Enterprises v. Raimondo, 603 U.S. (2024).

The Chevron doctrine was another two-step framework. 1) Did Congress directly address the precise question, and was the congressional intent clear? 2) Is the statute silent or ambiguous with the specific issue at hand.

If the answer to both questions was “yes”, then the court was required to defer to the agency administrating the statute.

Like the two-step shuffle of pre-Bruen Second Amendment jurisprudence, the courts always found for the state. Is the puddle in my backyard navigable waters of the United States, as defined in the EPA? Congress did not precisely address puddles, and since this is a dispute, it must be ambiguous. EPA, do you think that puddles in his backyard qualify as navigable waters of the United States?

Well, yes. You see, that water flows into that ditch, that ditch flows into that stream (which is dry 9 out of 12 months), from there it flows into that creek, from there into that river. Rivers are navigable waters and this puddle is connected to it and contributes to it. If the owner of the property were to divert that water, they are effecting the river.

Now, that might sound like a made up example, it is not. It is a case from memory where the EPA took a homeowner to court for violating the Environmental Protection Act because they changed the contours of their backyard to eliminate a soft spot that got yucky a few times a year.

What is Loper

Back in 1976, Congress passed the Magnuson-Stevens Fishery Conservation and Management Act (MSA). This was as a direct result of foreign vessels over fishing the waters around the United States. This act extended the waters of the United States from 12 miles of the costs to 200 miles.

The was implemented and enforced by the executive branch via the National Marine Fisheries Service (NMFS).

The NMFS created the set of regulations, following the language of the MSA. This is similar to the ATF creating form 4473 and the regulations on FFL bound books following 18 U.S.C. §922.

So far, so good. One of the previsions of the rules was a requirement that one or more observers be carried on board for the purposes of collecting data.

Foreign fishing vessels are required to carry observers, vessels participating in limited access programs were required to have observer(s), certain vessels in the North Pacific.

These observers are paid for by the vessel, not the government. The fees are capped at 2-3 percent of the value of the fish harvested.

The MSA does not contain the same language referring to herring fishermen in the Atlantic. In short, Congress did not authorize the placement of observers in herring fishing boats.

The NMFS changed the rules and required observers in some herring fishing vessels. The NMFS paid for these observers, as there was no mechanism in the MSA to pass on the costs to the vessels. In 2013, this changed. The rules were amended to require that the vessels pay for observers if the government funding was not available.

Of course, government funding evaporated shortly after the rule changed.

The cost of an observer would be up to $710 per day. This cost was a 20 percent hit to annual returns on a vessel.

Loper Bright Enterprises, Inc had enough, they filed suit challenging the rule under the Administrative Procedure Act. This is the same act that was used to strike down the Federal bump-stock ban.

They lost at the district level. The NMFS argued that the rule was authorized by the MSA, and even if it wasn’t, there was enough ambiguity in the law’s text to trigger Chevron.

The district court agreed with the state.

The D.C. Circuit court merits panel affirmed (agreed with) the district court’s ruling.

As always, the state relies much more on what isn’t said, than what is said.

Roberts added footnote 1, just to make us chuckle. For any landlubbers, “F/V” is simply the designation for a fishing vessel.—id. at 1

The APA thus codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal questions by applying their own judgment. It specifies that courts, not agencies, will decide “all relevant questions of law” arising on review of agency action, §706 (emphasis added)—even those involving ambiguous laws—and set aside any such action inconsistent with the law as they interpret it. And it prescribes no deferential standard for courts to employ in answering those legal questions. That omission is telling, because Section 706 does mandate that judicial review of agency policymaking and factfinding be deferential. See §706(2)(A) (agency action to be set aside if “arbitrary, capricious, [or] an abuse of discretion”); §706(2)(E) (agency factfinding in formal proceedings to be set aside if “unsupported by substantial evidence”).
—id. at 14

And here it is. The courts decide questions of law. This is something that we might see cited when the court and states argue that “experts” are required to understand the plain text of the Second Amendment and the meaning of this Nation’s historical tradition of firearms regulation.

The text of the APA means what it says. And a look at its history if anything only underscores that plain meaning. According to both the House and Senate Reports on the legislation, Section 706 “provide[d] that questions of law are for courts rather than agencies to decide in the last analysis.” H. R. Rep. No. 1980, 79th Cong., 2d Sess., 44 (1946) (emphasis added); accord, S. Rep. No. 752, 79th Cong., 1st Sess., 28 (1945). Some of the legislation’s most prominent supporters articulated the same view. See 92 Cong. Rec. 5654 (1946) (statement of Rep. Walter); P. McCarran, Improving “Administrative Justice”: Hearings and Evidence; Scope of Judicial Review, 32 A. B. A. J. 827, 831 (1946). Even the Department of Justice—an agency with every incentive to endorse a view of the APA favorable to the Executive Branch—opined after its enactment that Section 706 merely “restate[d] the present law as to the scope of judicial review.” Dept. of Justice, Attorney General’s Manual on the Administrative Procedure Act 108 (1947); see also Kisor, 588 U. S., at 582 (plurality opinion) (same). That “present law,” as we have described, adhered to the traditional conception of the judicial function. See supra, at 9–13.
—id. at 15–16

The deference that Chevron requires of courts reviewing agency action cannot be squared with the APA.
—id. at 18

The dissent ends by quoting Chevron: “‘Judges are not experts in the field.’” Post, at 31 (quoting 467 U. S., at 865). That depends, of course, on what the “field” is. If it is legal interpretation, that has been, “emphatically,” “the province and duty of the judicial department” for at least 221 years. Marbury, 1 Cranch, at 177. The rest of the dissent’s selected epigraph is that judges “‘are not part of either political branch.’” Post, at 31 (quoting Chevron, 467 U. S., at 865). Indeed. Judges have always been expected to apply their “judgment” independent of the political branches when interpreting the laws those branches enact. The Federalist No. 78, at 523. And one of those laws, the APA, bars judges from disregarding that responsibility just because an Executive Branch agency views a statute differently.
—id. at 35

Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.
—id.

Comments

3 responses to “Chevron is dead, long live Loper”

It’s just Boris

2024-06-29

Good. Congress has been far too willing to relinquish its authority and prerogatives, and the executive branch far too eager to acquire them.
CBMTTek

2024-06-29

Amen, my prayers are answered.
The Chevron doctrine has allowed the Federal Government WAY too much freedom to legislate by regulation.

I will make the statement that some deference MUST be afforded the agency with jurisdiction. The FAA should have a large say over air navigation, the EPA should… well, be abolished… but barring that, they should have a large say over environmental issues. But, if the law is not clear, they do not get to “make” it via a rule.

Now, if only a case can appear before the Supreme Court that challenges the Federal abuse of the Commerce Clause.
Tom from WNY

2024-06-29

Good.

After a career spanning more than a quarter century in managing/administrating/evaluating Evironmental, Safety and Health programs for Construction and Industry (among other tasks in that area of responsibility); its time Agencies be held to thier legal obligations instead of coming up with bizzare interpretations of it.

The pace of change in certain regulatory agendas (ATFE, EPA) makes doing business economically and operationally difficult and frustrating.