Supreme Court to Establish Whether the “Chevron Doctrine” Deserves a Tombstone

Repeatedly for nearly a decade, various parties have sought to have the US Supreme Court overturn the Chevron doctrine. The Supreme Court will have its latest chance to do during its next term in Loper Bright Enterprises v. Rainmondo, which was granted review this week specifically on whether the Chevron doctrine should continue to exist.

It is clear the vitality of the Chevron doctrine is squarely before the Court. When it agreed to review Loper Bright Enterprises, the Court focused on only one of two questions presented. This question is “whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers” granted by a statute does not constitute statutory ambiguity.

We have written about the Chevron doctrine repeatedly over the years because the doctrine is foundational to modern administrative law:

• In November, we blogged about Justice Gorsuch’s dissent in Buffington v. McDonough where he posited that it was time to give the “whole” Chevron doctrine “project … a tombstone no one can miss.”

• Last summer, we wrote about American Hospital Association v. Becerra. Becerra stemmed from a health-care-related reimbursement dispute. Despite the appellate court below relying on Chevron and various parties asking the Supreme Court to reconsider the viability of the doctrine, the Supreme Court decided the case without a single mention of the decision. 
• In 2019, we wrote about the Supreme Court’s Kisor v. Wilkie decision, which stemmed from a dispute over Veteran Affairs disability benefits, and involved questions of when courts should defer to agency interpretations of their own regulations; and
• In 2017, we blogged about the DC Circuit’s decision in an environmental case styled Waterkeeper Alliance v. EPA, which relied on a Tenth Circuit decision authored by Justice Gorsuch during his time on that court. 

Case Background

Loper Bright Enterprises v. Raimondo involves the National Marine Fisheries Service’s (NMFS) interpretation provisions of the Magnuson-Stevens Act (MSA). MSA required certain fishing vessel operators to provide space onboard their vessels for federal observers tasked with ensuring compliance with various federal regulations. In addition to providing space, NMFS required these vessel owners to pay the salaries of the observers.

The petitioners, four family-operated herring fishing companies, challenged the imposition of these fees before federal district court in Washington, DC. Both the district court, and the DC Circuit, applied Chevron, and found enough in the statute to support NMFS’s reading to defer to its reading. Judge Walker, writing in dissent to the DC Circuit’s approval of having herring fishermen pay the salaries of federal observers, noted that “if Congress had wanted to allow industry funding of at-sea monitors” related to Atlantic herring, it could have done so, but it “instead chose to expressly provide for it in only certain other contexts.” The fishermen accordingly sought Supreme Court review.

What’s Next?

The Supreme Court has not yet indicated when argument in Loper Bright Enterprises will occur, but it is likely that the argument will occur in the fall. 

The firm’s Environmental, Government Relations, Energy & Cleantech, and Health Care teams routinely monitor the Supreme Court’s docket for cases like Loper Bright Enterprises of interest to the regulated community. 

Stay tuned for further updates.