“Nearly 40 years ago, in Chevron v. Natural Resources Defense Council, the Supreme Court ruled that courts should defer to a federal agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable. On Monday, the Supreme Court agreed to reconsider its ruling in Chevron.” This is how a blog post from scotusblog started following the Supreme Court’s grant of a petition for cert from Loper Bright Enterprises, a group of commercial fishing companies that is challenging a rule issued by the National Marine Fisheries Service that requires the fishing industry to pay for the costs of observers who monitor compliance with fishery management plans.
The Court granted cert with the following question presented: “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.”
As noted in a Troutman blog,
Chevron deference often gives agencies broad leeway to define the limits of their own statutory authority, making it far more difficult for businesses, organizations, and individuals to challenge agency action successfully in court. While the Supreme Court first introduced the Chevron doctrine in 1984, the doctrine has more recently come under intense scrutiny on separation-of-powers grounds from multiple Supreme Court justices and numerous federal judges in lower courts.
Notwithstanding Chevron deference, in “’extraordinary cases’ of ‘deep economic and political significance’ the courts first apply a separate legal doctrine, the ‘major questions’ doctrine, to see if Congress truly intended to give the agency the power to regulate in that space, before deferring to the agency.” Punching In: High Court Signals Coming Curbs on Agency Deference.
Led by Justice Clarence Thomas, several members of the court’s conservative majority have been critical of the Chevron doctrine. This will be a closely-watched case for businesses that are often the subject of governmental regulation and enforcement.
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More