Case brought to Supreme Court by herring fishermen may gut federal rulemaking power

The U.S. Supreme Court wrestled Wednesday with the implications of overturning a nearly 40-year-old precedent that could weaken the way the federal government regulates, well, everything.

A system in place for decades has governed how judges review curbs on air and water pollution, gun safety measures and workplace protections. But conservative legal foundations and business groups have urged the court to scrap that system, arguing it hands too much power to federal agencies at the expense of Congress and the judiciary.

Several of the court's conservative justices expressed deep skepticism of the current framework. But all three left-leaning justices offered support for keeping the system in place. And Justice Amy Coney Barrett, a Trump appointee, raised concerns about "inviting a flood of litigation" if they reversed course.

By the end of the arguments, which extended more than three hours, it wasn't clear there were five votes to overturn the precedent, or whether a majority of the court might find a way to impose new limits on it.

Justice Elena Kagan threw tough hypothetical questions at the challengers' attorneys, asking if federal judges are really the best positioned to answer questions about whether a new cholesterol-lowering product would be a dietary supplement or a drug.

"And it's best to defer to people who do know, who have had long experience on the ground, who have seen a thousand of these kinds of situations," Kagan said, referring to agency experts. "And, you know, judges should know what they don't know."

The case revolves around an unlikely set of plaintiffs: a group of herring fishermen based in Rhode Island and Cape May, N.J. One of them is Bill Bright, a first-generation fisherman whose family has followed him to the sea.

"My boys are working on the boats," Bright said. "And my daughters, we have a shoreside business and they run that. So we're all, the whole family is, in the seafood business 100%."

Bright said he welcomes regulations to keep the herring population strong in the Northeastern United States. But he said the fisheries service went too far when the government mandated that vessel owners like him had to pay for observers on the boats to make sure they're following the rules.

"We have this hanging over our head and we're not under any illusion," Bright said. "Once they start charging us for the monitor, that's never going away."

A case with broad implications

The case has implications far beyond the fishing industry and has attracted support from conservative legal foundations, the Gun Owners of America and a trade group for electronic cigarette-makers, among others.

David Doniger, a senior attorney at the Natural Resources Defense Council, a nonprofit advocacy group, said those organizations have a specific goal in mind.

"The real purpose of it is to enfeeble the federal government so that we don't have the capacity to deal with modern problems, and the billionaires and big companies can just do what they want and not be checked," Doniger said.

In 1984, Doniger argued — and lost — an environmental law case involving the energy giant Chevron and the Environmental Protection Agency at the Supreme Court. Then, the court upheld a move by the Reagan-era EPA.

But the facts of that case are overshadowed by a system it enshrined, about the way judges evaluate federal regulations under legal challenge. It's come to be known as the Chevron doctrine.

Judges are supposed to follow a two-step procedure. First, they're supposed to ask whether the law is clear when someone challenges a federal rule. Then, if the law is not clear, if there's an ambiguity, the court is supposed to defer to the agency interpretation if it's reasonable.

In practice, that's meant that courts often defer to people inside federal agencies who are experts on things like pollution, banking and food safety.

Whom to defer to?

Paul Clement, a former solicitor general in the George W. Bush administration, has argued more than 100 times before the Supreme Court. He represents the herring fishermen.

"Can't think of a better way to mark the 40th anniversary of the Chevron decision than with an overruling," Clement said. "In our view, this really has gotten out of control."

He said the current system means Congress never has to weigh in and reach a compromise on the toughest policy questions, because one side or the other can just wait for a change in the executive branch every four or eight years, and the rules will swing back and forth based on the views of the political party in power.

"I think it's really as simple as this: which is when the statute is ambiguous, and the tie has to go to someone, we think the tie should go to the citizen and not the government," Clement added. "And one of the many problems with the Chevron rule is it basically says that when the statutory question is close, the tie goes to the government, and that just doesn't make any sense to us."

Conservatives on the Supreme Court, including Justices Clarence Thomas and Neil Gorsuch, have been critical of the Chevron approach for years now. Gorsuch even wrote that Chevron deserves a "tombstone."

Don McGahn, the White House counsel for former President Donald Trump, made deregulation a top priority.

McGahn told a conservative audience during the Trump years that Gorsuch's writings on the administrative state drew the attention of the White House —and that Trump nominated other judges who shared that outlook.

"There is a coherent plan here, where actually the judicial selection and the deregulatory effort are really the flip side of the same coin," McGahn said.

An integral part of the law

The Biden administration is defending the fishing regulation and the Chevron doctrine as a "deeply ingrained" part of administrative law — one that people rely on for crucial health and safety regulations.

The current solicitor general, Elizabeth Prelogar, said in court papers that the monitoring program for the herring fishermen is not operating due to a lack of funds and that vessels that already paid for monitors have been reimbursed by the federal government, so the actual stakes for the herring fishermen may be low.

Overruling that 1984 case would represent a "convulsive shock to the legal system," she added.

But Justice Brett Kavanaugh seized on that point in oral argument Wednesday. "You say, 'Don't overrule Chevron, it would be a shock to the system,' but the reality of how this works is Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in."

Chief Justice John Roberts asked whether the high court had already effectively let the precedent die on the vine, since it had backed away from citing it in recent years. But Prelogar said it still influenced many lower court jurists.

"I'm worried about the courts becoming uber legislators," in the event power flows to judges and away from federal agency experts, Justice Ketanji Brown Jackson said.

Doniger, the environmental advocate, said this case is about far more than fishing regulation. The hidden agenda, he argued, is protecting big oil, big gas and big financial industries.

"The herring boats are just, you know, they're just a front," he said. "I mean, they're kind of a red herring."

A decision by the Supreme Court is expected this summer.

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