On Jan. 17, lawyers representing two New Jersey and Rhode Island fisheries 鈥� and 鈥� petitioned the Supreme Court to overturn observer fee policies set forward by the National Marine Fishery Service to reduce overfishing.
The companion cases have invigorated national discourse on the legitimacy of the , according to Michael Yelnosky, a professor and former dean at the Roger Williams University School of Law. This landmark legal precedent defers interpretations of ambiguous statutes to federal agencies instead of judicial bodies.
Typically, disputes over congressional statutes are settled in court, Yelnosky said in an interview with The Herald. But if the statute is 鈥渉opelessly ambiguous,鈥� the Chevron deference allows federal agencies to reasonably interpret the statute instead.
The doctrine was introduced after a over the definition for 鈥渟ources鈥� of air pollutants in the Clean Air Act, Yelnosky said. In 2017, a found that the Chevron deference was 鈥渙ne of the most cited Supreme Court decisions of all time.鈥�
Lawyers representing both fisheries argue for an overturn of the Chevron deference. Currently, regional fishery management councils are permitted under the to 鈥渆stablish a system of fees鈥� to pay , who are placed on commercial fishing vessels and collect a variety of important fishing-related data.
Lower courts used the Chevron precedent to defer the fee sizes to the National Marine Fishery Service 鈥� and some fishermen say that these fees are becoming unsustainable.
Jason Jarvis, the board president of the North American Marine Alliance and a commercial Rhode Island fisherman of 30 years, said these regulations require him to pay $700 per day, making fishing an increasingly expensive occupation. Various court documents, including , state that these costs force fishermen to cede 鈥渦p to 20%鈥� of their annual returns.
The fishermen that Jarvis has spoken to 鈥渁re not against taking an observer, but they鈥檙e against having to pay out-of-pocket,鈥� he explained in an interview with The Herald.
鈥淲e have to have regulations, but (they鈥檙e putting more) burden on fishermen that are already burdened,鈥� Jarvis said in reference to , another MSA policy that incurs large costs to fishermen. 鈥淭hat observer (could be) making more money than the crew or captain.鈥�
鈥淥ur case just involves this one regulation 鈥� but the same kind of issues come up all the time in other areas of law,鈥� said Roman Martinez, who represented Relentless Inc. at the Supreme Court earlier this year. 鈥淎gencies have a role to play in our government 鈥� (but) we think that the court鈥檚 job is to apply its best judgment as to what the law means.鈥�
Supporters of the Chevron deference argue that courts lack the technical expertise and bureaucratic capacity to handle such complex cases. Martinez said that this was, in part, the reasoning for Chevron鈥檚 original implementation.
According to Martinez, most disputes are resolved without invoking Chevron, meaning an overturn will not significantly upheave judicial processes. He believes that there are, however, 鈥渁 number of cases in which agencies are stretching鈥� beyond reasonable interpretations of statutes 鈥� like the fishery cases 鈥� that beckon scrutiny of the Chevron doctrine in its current form.
He also conceded that overturning Chevron will 鈥渕ake judges鈥� jobs harder,鈥� but believes 鈥渢hat鈥檚 what judges are there for 鈥� (to) 鈥渂e in the middle and figure out who鈥檚 got the better view of the law.鈥� In this scenario, agencies could still contribute technical expertise to these cases, but would lack decision-making authority, he said.
Andrew Mergen, an environmental law professor at Harvard University and the faculty director of the Emmett Environmental Law and Policy Clinic, disagreed. Overturning Chevron would invite challenges to other regulatory frameworks, he said, which will 鈥渃reate a lot of instability鈥� as judicial courts adapt.
Mergen expressed concern for urgent issues like climate change, believing a post-Chevron court may inefficiently tackle these problems. 鈥淚 just don鈥檛 feel like time is on our side,鈥� he said.
鈥淚 have no doubt that powerful interests representing polluters will attempt to bring new litigation to overturn important (environmental) protections,鈥� said John Rumpler, the clean water director at Environment R.I. and Environment America. But he expressed uncertainty as to their legal prospects, funding for which has been linked to .
Reflecting on his experiences as a Justice Department attorney, Mergen said he thought that overturning Chevron would make agencies鈥� jobs 鈥渋ncalculably more difficult.鈥�
鈥淭here鈥檚 a lot to criticize about (the) government 鈥� but we don鈥檛 realize how dependent we are on agencies,鈥� Mergen said. He worries that overturning Chevron may make formerly established regulations vulnerable to new challenges, which will further busy courts.
鈥淚t makes sense to accord (courts) some deference鈥� due to their lacking expertise and political accountability, he added. 鈥淭here鈥檚 reason to be concerned.鈥�
The cases are largely expected to win over the majority-conservative Supreme Court after Loper Bright Enterprises . 鈥淐hevron has become a major target (for) conservatives and those in favor of reducing federal regulation,鈥� Yelnosky added.
The doctrine was introduced in a unanimous ruling by a Reagan-era Supreme Court. 鈥淚n 1984, the Republicans didn鈥檛 like the courts, but they liked the executive branch,鈥� Yelnosky said. 鈥淣ow they love the courts, particularly the Supreme Court,鈥� he added, pointing to the court鈥檚 conservative majority.
鈥淎lmost certainly, Chevron will not exist in its current form after they decide the case,鈥� Yelnosky added.
Mergen believes that Chevron will return, though in a different variation. 鈥淎 lot of scholars say that out of the ashes, something like Chevron will emerge, because something like Chevron has existed for a long time,鈥� he said. 鈥淚 do think there鈥檚 some force to the idea, but it鈥檒l take a little while.鈥�
鈥淭here were a lot of things said (at the Supreme Court hearings) that gave us cautious optimism,鈥� Martinez said. He anticipates a final verdict to be made 鈥渟ometime in June.鈥�
Megan is a Senior Staff Writer covering community and activism in Providence. Born and raised in Hong Kong, she spends her free time drinking coffee and wishing she was Meg Ryan in a Nora Ephron movie.
