WASHINGTON — Business and conservative interest groups seeking to limit the power of federal regulators think they have a winner in the Atlantic herring and the boats that sweep the modest fish into their holds by the millions.
In a Supreme Court term increasingly dominated by cases tied to former President Donald Trump, the justices are poised to take on less prominent but critically important cases that challenge a wide range of government regulations that affect the environment, workplace standards, consumer protection and public order. health.
In cases argued Wednesday, attorneys for the fishermen are asking the court to overturn a 40-year-old decision that is among the Supreme Court’s most cited cases in support of regulatory power. Lower courts used the decision to uphold the National Marine Fisheries Service’s 2020 rule that herring fishermen pay for monitors that track their fish intake. A group of commercial fishermen appealed the decision to the Supreme Court.
Billions of dollars are potentially at stake for a court that, like the rest of the federal judiciary, has been reconfigured during Trump’s presidency by conservative interests motivated as much by weakening the regulatory state as by social issues , including abortion.
The 1984 decision in the case, colloquially known as Chevron, states that when the laws are not crystal clear, federal agencies should be allowed to fill in the details.
Advocates of limited government have had their sights set on the decision for years, which they say gives the power that should be exercised by judges to experts who work for the government.
“To defer to the agency’s interpretation of the law is to allow the agency to be a judge in its own case,” said Mark Chenoweth, president of the New Civil Liberties Alliance, which represents Rhode Island fishermen. . A second case, involving boats in Cape May, New Jersey, will also be discussed Wednesday.
The alliance, funded by conservative donors including the Koch Network, says it is “committed to reducing the administrative state to its size.”
Gun, e-cigarette, farm, timber and homebuilding groups are among the business groups supporting the fishermen. Conservative interests that also intervened in recent lawsuits seeking to limit regulation of air and water pollution also support the fishermen.
David Doniger, a senior attorney for the environmental group Natural Resources Defense Council, said the real agenda of Chevron opponents is “obstructing modern government.”
The Supreme Court could limit the damage, but it’s unclear whether that will happen, Doniger said.
“Will it be a tinkering change or a radical change?” he said. “If the latter is the case, it threatens to destroy an effective government.”
Environmental and health groups are urging the court to leave the Chevron decision in place. Health care groups led by the American Cancer Society are warning of “the enormous disruption that pushing aside Chevron would cause to government-funded health insurance programs in particular, to the stability of this country’s health care system generally, and to health and well-being of patients and consumers. we serve.”
Defenders of the decision may face an uphill climb. The court’s 6-3 conservative majority, including three Trump appointees, is increasingly skeptical of the powers of federal agencies. At least four justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — have questioned Chevron’s decision.
As an appeals court judge, Gorsuch noted that judicial decisions “allow executive bureaucracies to absorb large amounts of core judicial and legislative power and concentrate federal power in a manner that seems rather difficult to comply with the Constitution of the drafters’ design. .”
The public face of the lawsuit is the fishermen who ply the waters off the east coast in search of herring and other fish.
Federal law already requires their boats to carry monitors that collect data, including how much “bycatch,” species other than those their permits allow, are taken.
But a 2020 ordinance would require herring boats to pay for the monitors, which could amount to more than $700 a day.
The Cause of Action Institute, an anti-regulation group that shared office space with an arm of the Koch Network, identified the issue as a way to attack the Chevron decision and recruited the fishermen to file a lawsuit, it said Ryan Mulvey, an attorney at the institute.
The lawsuits argued that Congress never gave federal regulators the authority to require fisherman to pay for monitors. They lost in the lower courts, which relied on Chevron’s decision to uphold the regulations.
The Supreme Court agreed to hear the case, unconvinced by arguments that no one has yet been forced to pay the fee or that the scheme was developed by regional councils that included industry representatives.
The fishermen have only reluctantly accepted the presence of the monitors.
“I wouldn’t say they’re in the way. That would be the case if someone came and sat in your living room for a week and watched what you did,” says Leif Axelsson, the co-captain of the fishing boat Dyrsten and a third-generation fisherman.
During a recent tour of the 49-foot vessel at the Cape May dock, Axelsson moved around the boat as if he had been aboard his entire life. The Dyrsten was built as a small boy for the family business.
From the captain’s chair, Axelsson can see well over a dozen computer screens, about half of which help the crew find and catch fish.
In recent years there have been fewer herring catches. A 2020 scientific study found that herring is overfished, leading the federal government to drastically reduce the amount of herring that can be caught. One of the uses of the fish is as bait by lobster fishermen.
Fishermen caught more than 100 million pounds of the fish in 2017, but in 2021 the catch was less than 11 million pounds. At the same time, the government has provided millions of dollars to help fishermen cope with the decline.
Axelsson and other Cape May fishermen involved in the Supreme Court case say they expect quotas to increase in coming years.
Forty years later, it’s easy to forget that environmental groups actually lost the Chevron case with a 6-0 vote in the court, which upheld a lenient, industry-favored interpretation of an air pollution regulation. Three judges were withdrawn.
Judge John Paul Stevens wrote the court’s opinion. “Judges are not experts in the field, and are not part of any political branch of government,” Stevens wrote in 1984, explaining why they should play a limited role. Judge Sandra Day O’Connor, who died last month, was the last surviving member of that court.
The current group of judges has a more robust view of the judiciary. The Supreme Court itself has not appealed the Chevron decision since Trump’s justices appeared on the court in 2017, the first year of the Republican administration.
But lower courts continue to rely on Chevron. That should change, attorney Paul Clement told the judges on behalf of Axelsson and other Cape May fishermen.
“The question, then, is less whether this Court should overrule Chevron,” Clement wrote, “but more whether it should let lower courts and citizens weigh in on the news.”
A decision in the cases is expected early summer.
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