Chevron Caught in the Bight When Fisheries Took the Bait

“Well I’m on the downeaster Alexa
And I’m cruising through Block Island Sound
I have charted a course to the Vineyard
But tonight I am Nantucket bound”¹

Traditionally, conservatives seek to preserve rules and thereby maintain the status quo while liberals seek to question, modify and overturn rules that have become (or which always were) burdensome to society. And yet, our heavily conservative Supreme Court has clearly been quite comfortable overturning long-standing precedent. Today, another hoary precedent, Chevron v. Natural Resources Defense Council² (which held that a court must defer to a federal agency’s interpretation of its statutory authority if the agency’s actions are reasonable and within the bounds of its regulatory powers) has been jettisoned.

In Loper Bright Enterprises v. Raimondo,³ the appellants challenged the National Marine Fisheries Service rule requiring the commercial herring fishing industry to fund at-sea monitoring programs that cost in excess of $710 per day. The appellant commercial fishers asked the Supreme Court to answer two questions: (1) whether the National Marine Fisheries Service acted within its authority under the Magnuson-Stevens Fishery Conservation and Management Act (MSA)⁴ in promulgating a rule that required this study to be funded by industry, and (2) whether the Court should overrule Chevron or clarify whether statutory silence on arguably controversial powers creates an ambiguity requiring deference to the agency. Below, the district court granted summary judgment in favor of the government and the U.S. Court of Appeals for the D.C. Circuit affirmed.

“They say these waters aren’t what they used to be
But I got people back on land who count on me”¹

The MSA was passed in 1976 in response to concerns that the fisheries stocks of the United States were crashing due to overfishing by foreign fishing fleets. It also sought to strengthen the ailing U.S. fishing industry.⁵ It did so by asserting control over fisheries within the U.S. Exclusive Economic Zone (“EEZ”), which generally extends to 200 nautical miles off the U.S. coast. Numerous amendments to the MSA have since been passed by Congress to address overfishing and overcapacity in the domestic fisheries.

Under the MSA, regional fishery management councils, made up of representatives from the fishing industry and the state, operate largely independently from one another and develop fishery management plans for approval and implementation by the National Oceanic and Atmospheric Administration’s (NOAA) Fisheries program, more commonly known as the National Marine Fisheries Service (NMFS). These plans are amended frequently in response to changes in fish stock. Congress authorized the Secretary of Commerce and the NOAA Administrator to ensure that these plans and all amendments meet the MSA’s National Standards, which require that any measures (among other matters):

• actually prevent overfishing;
• are based on the best scientific information available; and,
• are fair and equitable

Generally speaking, the MSA, as regulated by the NMFS, has been tremendously successful in meeting the mission of conserving and managing U.S. fishery stocks. The foreign fishing fleets have gone (for the most part), the domestic fleet has modernized and grown, and many of the most important fish stocks that were in danger of collapse 50 years ago have recovered to sustainable levels. Still, though, the commercial fishing industry remains challenged by issues relating to profitability, safety and a changing physical and regulatory environment.

“Now I drive my downeaster Alexa
More and more miles from shore every year
Since they tell me I can’t sell no stripers
And there’s no luck in swordfishing here”¹

It is rare for a regulated community to have an unconflicted relationship with its regulators, and the commercial fishing industry is no exception. While this industry does have good representation and opportunity to present its views before the various regional fishery management councils and the NMFS as a whole, and generally has a good relationship with NOAA, there are times when the relationship is in the doldrums.

With regard to the rule challenged in Loper, it is easy to see the government’s perspective: monitoring catch must be done so that the NMFS can accomplish its mission of using scientific evidence to ensure the long-term sustainability of herring fish stocks. Such monitoring comes at a cost, and this cost is being passed along directly to the regulated community, with the government assuming that the new cost will simply raise the price of fish at the market, which will ultimately be paid by consumers.

Government efforts at tracing economic impacts on how fish get from the sea to the plate⁶ are thwarted by the complexities of the market. Accordingly, there is reasonable concern that new government regulation that adds to the cost of performing commercial fishing activities generally, or in any particular sector(s), could upset the existing balance to the point of decimating the industry (or a part of it). If that were to happen, then the NMFS would have exceeded its authority and purpose, but the realization would only come too late for the people directly impacted by such excess.

It’s also a fair point that, in general, federal agencies charged with gathering data to meet their missions don’t directly charge the regulated population the cost of hiring the government workers who collect and report on that data. Instead, the normal course is for the agency to seek a budget from Congress to pay for this added cost, which spreads the financial impact among all taxpayers. Appellant fishers in Loper argued that there ought to have been a less costly, less intrusive, and less dangerous manner for NMFS to get the data it needs on herring than to place human observers on their fishing vessels. Alternatively, it could have determined that the data was costlier than the value it provided. But under Chevron, the agency was entitled to deference unless it clearly and substantively exceeded its authority under the MSA. Hence, the losses by the fishers at the lower courts.

“I was a bayman like my father was before
Can’t make a living as a bayman anymore
There ain’t much future for a man who works the sea
But there ain’t no island left for islanders like me”¹

The new NMFS rule under challenge in Loper required herring boats to pay for an observer that during the June 1-December 31 season could exceed $87,000 (per observer), which perhaps is not an unreasonable amount to cover the cost of a federal employee (including, e.g., salary, benefits, tools and equipment, insurance, and management of that employee). This is, however, a very heavy price to bear when looking from the perspective of the fishing industry, particularly when compared to the average fisher, who earns only around $15,000-$25,000 during this same period.⁷

This disparity is disturbing: a fairly low-ranking white-collar government agent costing more than triple the best pay a blue-collar fisherman could hope to bring home standing side-by-side on the same boat. It’s the kind of thing, though, that can happen when even the most honest efforts of purely intended government agents put their own needs ahead of those of the people they regulate. Small wonder, then, that appellants felt Chevron forced courts to remove themselves from adjudicating the real economic meaning of the underlying law in order to defer to agencies, which in turn destroyed small businesses and in fact undermined faith in the judicial system’s independence from the executive branch’s agencies. During oral arguments in Loper this past January, Justice Gorsuch signaled complete agreement with appellants, noting that Chevron worked to the advantage of agencies and against “the little guy.”

The postings by pundits today in the wake of the release of the slip opinion was entirely predictable. Conservatives are crowing about the decision as a victory for the rights of small businesses over the power of overblown and overzealous government agencies while progressives are decrying the decision as torpedoing the ability of agencies to actually get anything accomplished. It’s easy to understand why they feel this way: conservatives have invested heavily in business and laws that favor business, and so feel victorious, while progressives have worked the system and used their influence to craft regulatory policy and procedure, and are now worried that their hard work and investment will come to naught.

But they’re both wrong.

“Like all the locals here I’ve had to sell my home
Too proud to leave, I work my fingers to the bone
So I can own my downeaster Alexa”¹

From its earliest major decisions, the Supreme Court has sought to hold itself above the fray and unite a divided country by navigating the narrow passage between the Scylla and Charybdis of the two prevailing political parties and holding true to the Constitution.⁸ Today’s decision in Loper is no different.

The Supreme Court did not—as conservatives seem to be saying—strike a blow against agencies that have taken it upon themselves to subvert the democratic process by creating their own legislation. With regard to every law ever written, there are questions as to legislative intent. Everyone charged with enforcing laws is always faced with the challenge of correctly interpreting their roles and responsibilities. Sometimes agencies get it right, and sometimes they don’t. The only way to know for sure is to have the agency position challenged and to have the courts make a determination.

Just because an agency isn’t challenged with regard to a policy or regulation doesn’t mean that the agency was in the right with regard to that policy or regulation. The nature of a bureaucracy, though, is to make policies, regulations and rules regarding other policies, regulations and rules. It could be that the underlying policy upon which others depend was faulty, and if a challenge ever comes up and is correctly argued, that policy will be overturned, as it should be, by the court. As a consequence, policies, regulations and rules built on the foundation of incorrect policies were loose cannons anyway, and so properly, they should be jettisoned. Agencies and the people who work for them generally have a very good understanding of their mission and purpose, and the policies, regulations and rules that have been developed in furtherance of such mission and purpose are usually very carefully considered and well written. So, while Loper may in fact lead to numerous challenges to existing policies, regulations and rules, the reality is that very few such challenges will be successful in overturning well-established agency policies, regulations and rules.

By the same token, the Supreme Court did not, as progressives fear, upend 40 years of carefully crafted agency efforts at defining their roles, responsibilities and actions. Just because this one rule by this one agency is now subject to review for consistency with legislative intent under the MSA without special deference to NMFS does not mean that every agency action—or even this particular agency action challenged in Loper—will in fact be overturned. If policies, regulations and rules are consistent with—and do not deliberately subvert—legislative intent, then there is good reason to expect that they will remain intact.

Progressives have worked diligently to assist in developing policies, regulations and rules that make sense of congressional intent under legislation passed by an increasingly politically divided Congress. It is normal in the course of such efforts that gaps in legislative language be bridged with logical and sensible interpretations. Generally, such work is done honestly in an effort to fix actual or perceived problems. But if those fashioning agency policies, regulations and rules dishonestly closed such gaps with the thought that Chevron would cover deliberately wrongful overreaching by the agency, then this smacks of abuse. Now, reviewing courts will not have to worry about Supreme Court precedent in Chevron shackling independent judicial review of executive action.

As a result, the appellant fishers in Loper will finally get a court to review the new NMFS rule for compliance with statutory authority.

“So if you see my downeaster Alexa
And if you work with the rod and the reel
Tell my wife I am trolling Atlantis
And I still have my hand on the wheel”¹

During January’s argument in Loper, the government argued that overturning Chevron would lead to a tidal wave of litigation challenging numerous agency actions and overturning volumes of agency and legal precedent. The appellants argued back that this was either untrue or at least unsupportable. The Supreme Court took a different–and true–tack by answering both arguments with the equivalent of “so what?” It is–and has always been–the job of the judiciary to review actions by the legislative branch against the dictates of the Constitution and the actions of the executive branch against the intent of the legislative branch. The Court has no fear of a multitude of lawsuits, nor is it worried about the possibility that there will be very few lawsuits, as a result of its decision to overturn Chevron.

Chevron or no Chevron, agency action (and inaction) has always been–and continues to be–the subject of numerous lawsuits, with some parties claiming that agencies have exceeded their authority and gone too far and others claiming that the agencies have failed in their duty and have not gone far enough. This debate happens on nearly every significant issue in the administrative process and periodically leads to legal action. The only thing that’s now changed as a result of Loper is that the agency isn’t sitting in a more privileged position than anyone else to determine what congressional intent was or wasn’t.

Anyone peering through their periscope at either the Court or at the agencies is aiming in the wrong direction. Loper is actually an indictment of Congress. The Chevron problem would not arise if Congress was better at doing its job. A well-written law shouldn’t have large unexplained gaps that force agencies to take guesses. The majority opinion is clear in holding agencies blameless for attempting to define Congressional intent when there was a lack of clarity, despite the fact that agencies would sometimes go off course and run aground.

There’s no one in a better position to take stock of public opinion, to solicit and hold hearings on testimony from experts, and to find a way to consider possibilities and properly craft legislation and clearly instruct and fund agencies than the U.S. Congress. But for far too long, that is not what Congress has done, and partisanship and sloppy lawmaking has been the result. The best way for Congress to do its job is to listen to all views, including especially the opposition. We need more bipartisanship of the type that led to the creation of the MSA. If anyone’s being called out by the Supreme Court in Loper for not doing its job, it’s not the agencies—it’s Congress.

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