US Supreme Court weighs ending Chevron deference

The US Supreme Court conservative majority appears ready to overrule or narrow a nearly 40-year-old ruling that offers federal agencies broad latitude over how to regulate the energy sector and other industries.

The court today held arguments in two lawsuits that are considering whether to overturn a 1984 Supreme Court ruling, named Chevron v. NRDC, that has become one of the most important precedents for how courts review the legality of federal regulations. Under what is known as Chevron deference, courts are supposed to defer to an agency if it provides a reasonable interpretation of an ambiguous law.

During more than three hours of argument in the cases, one of which is named Loper Bright Enterprises v. Gina Raimando, conservative justices Neil Gorsuch, Brett Kavanaugh, Samuel Alito and Clarence Thomas asked questions suggesting they want to overturn the legal precedent. For example, Gorsuch asked about an alternative standard under which courts would give "special weight" to an agency's interpretation of a law but not defer to that view, which aligns with a 1944 court ruling known as Skidmore v. Swift.

That could make conservative justice Amy Coney Barrett or chief justice John Roberts the decisive vote in a potential 5-4 or 6-3 ruling to overturn Chevron or narrow its application. During arguments, Roberts wrangled over a hypothetical under which a judge is required to decide exactly what is "reasonable" when regulating the length of trucks, while Barrett wondered if overturning the decades-old precedent might lead to new lawsuits in previously decided cases.

"Isn't it inviting a flood of litigation?" Barrett asked.

But Kavanaugh dismissed the idea that overruling Chevron would pose a shock to the legal system or create instability.

"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," Kavanaugh said.

The two lawsuits were brought by herring fishermen that are fighting a rule requiring them to pay an estimated $710/day for a federal at-sea observer that verified compliance with regional catch limits. The US Commerce Department argues that fee was well supported by federal law, but the fishermen argue the "best interpretation" of the law is that the fee should not apply to herring fishermen.

The court's three liberal justices voiced doubts that the fishing dispute was extraordinary enough to support overturning a 40-year-old ruling, citing a principle of keeping legal precedents intact. Justice Sonia Sotomayor asked why, when there are often many "best answers" as to how to interpret a law, a federal judge would be better prepared than an expert agency to determine how to proceed.

Other liberal justices asked questions in defense of retaining Chevron deference. The US Congress often creates gaps in the law to be filled in by regulators because of the difficulty of predicting future issues. Justice Elena Kagan asked if lawmakers meant for those issues to be decided by an agency accountable to the political process, or by judges with lifetime tenure. Justice Ketanji Brown Jackson said overturning Chevron could put judges in the position of becoming "uber legislators" and unilaterally setting policy on issues on which they have no expertise.

"My concern is that if we take away something like Chevron, the court will then suddenly become a policymaker," Jackson said.

In the decades since the Chevron decision, the Supreme Court has placed new constraints on the ruling, including in 2022 when the court created the "major questions doctrine" to throw out a climate regulation for the power sector. Roman Martinez, an attorney for the fishermen, argued those subsequent court constraints were put in place because of underlying problems with Chevron deference.

"Chevron is doing something very weird, it's taking interpretation authority that belongs to courts, and it's giving it to agencies," Martinez said. "So all these bells and whistles are efforts to kind of claw it back to address the symptoms, but I think it's time for the court to address the disease, the underlying problem, which is Chevron itself."

The Supreme Court is expected to rule on the case by the end of its term in June.

By Chris Knight