Herring fishermen don’t ordinarily catch the big one. Herring is a bait fish, not the prize catch.
However, some fishermen from New Jersey set in motion a challenge to environmental protections and the authority of federal agencies to interpret laws that goes far beyond the fate of the 10-inch herring.
On May 1, the U.S. Supreme Court agreed to hear a case on whether the U.S. Department of Commerce has the authority to require fishermen to allow inspectors on board — and require the fishermen to pay those inspectors. As my colleague James Goodwin said in a recent Politico article, “This has the potential to be one of the most destabilizing decisions this court has issued.”
The case, Loper Bright Enterprises v. Raimondo, will be heard next term, which starts in October. While the fishermen are challenging specific rules guarding against overfishing, at stake is the ability of agencies to write regulations that reasonably interpret laws even when they are ambiguous.
In the 1984 case Chevron v. Natural Resources Defense Council, the court ruled that as long as an agency is working within the parameters of its statutory authority, courts must “defer” to the agency given its expertise and procedural due process. This is known as Chevron deference, and it has guided court review of agency actions for nearly 40 years and is the most cited Supreme Court opinion in history.
Chevron deference is a critical pillar of governance because Congress often passes laws that establish goals for regulatory programs but leave agencies room to fill in the details. That’s what implementing regulations do. Indeed, on average, 18 regulations accompany each law.
Federal agencies, not Congress, are better able to respond with appropriate actions regarding future, unanticipated, and dramatically changing events because they are designed to be nimble and work through a process of learning and revision. For example, the landmark Clean Air Act of 1970 did not anticipate the climate crisis, yet it has been the primary law for federal regulation of greenhouse gases, such as regulating vehicle emissions.
Should the Supreme Court overturn Chevron — a reasonably likely outcome given the court’s conservative majority — the impact will be dire. Judges will be able to rule against any regulation that does not align with their policy preferences, and conservative litigators will certainly shop for such activist judges. At risk are protections to our water, air, and environment, as well as health and safety standards for workers and consumers, financial regulations for banks, and our civil liberties.
Without apology, the plaintiffs’ lawyers in Loper seek to shackle the government's ability to do its job. Representing the fishermen is the Cause of Action Institute, whose mission is to “limit the power of the administrative state.” A preceding case by herring fisherman in Rhode Island was filed by the National Civil Liberties Union, which believes that the “Administrative State is an especially serious threat to constitutional freedoms” and that “no other development in contemporary American law denies more rights to more Americans.”
Seriously? No other development? Not even mass incarceration? Or the constant legal attacks against LGBTQ+ Americans? Or overturning Roe v. Wade, which threatens access to abortion for 33 million women?
With Justice Ketanji Brown Jackson recused from the Loper case, and justices such as Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas already favoring Chevron’s demise, good governance may already be caught in a herring net. Biden-era regulations, including banning the sale of ghost guns, fuel economy standards, restoring protections under the National Environmental Policy Act, and dozens more may be at risk.
Those who support overturning Chevron claim that it will force Congress to write legislation that more clearly prescribes how federal agencies should implement its provisions. If the debt ceiling impasse is any indication, this argument is rooted in fantasy. The more likely scenario is that no protective legislation will ever be passed — the very outcome the "dismantle the administrative state" crowd is hoping for.
As a striper fisherman myself, I hope we don’t lose herring to overfishing. And as a citizen of this proud republic, we cannot afford to lose the ability of the government to protect and defend the common good.
Showing 2,818 results
Minor Sinclair | May 11, 2023
On May 1, the U.S. Supreme Court agreed to hear a case on whether the U.S. Department of Commerce has the authority to require fishermen to allow inspectors on board. At stake is the ability of agencies to write regulations that reasonably interpret laws even when they are ambiguous.
Marcha Chaudry | May 1, 2023
Earlier this year, the Richmond Times Dispatch reported that Virginia Department of Environmental Quality (DEQ) scientists are working to reduce the daily flow of cancer-causing PCBs into the James River and keep the commonwealth's water clean and safe to drink.
Allison Stevens | April 27, 2023
The Center for Progressive Reform is saddened to share the news that long-time Member Scholar William H. “Bill” Rodgers, Jr. passed away this month.
Minor Sinclair | April 26, 2023
Six years ago, Smithsonian Magazine was among those decrying the death of public intellectuals (“the egghead is dead”). Where are today’s Ralph Waldo Emersons or James Baldwins or Susan Sontags, they mourned. The article went on to offer a fascinating insight. History shows that “public intellectuals always emerged when the country was sharply divided: during the Civil War, the Vietnam War, the fights for civil rights and women’s rights.” In this moment of ever-deepening divide, it gives me great pleasure to announce that the Center for Progressive Reform welcomes five prominent academics to our network. The toll for the death of expertise may have been premature; long live public intellectuals!
Allison Stevens | April 25, 2023
Testifying before Congress, releasing new books, engaging with the news media — our Member Scholars packed virtually a year’s worth of advocacy on climate justice, clean air and water, and worker health and safety into the first three months of 2023.
Robert Verchick | April 25, 2023
Last summer, standing outside the Paradise Inn in Washington’s Mount Rainier National Park, I still needed a fleece to keep warm. In the shadow of the park’s snow-covered volcano, the meadows sparkled with wildflowers. I remembered a news article from a few years back about how Mount Rainier’s iconic flora were slowly retreating to higher elevations away from the inn. Park scientists attributed this to higher temperatures caused by climate change. There was some debate at the time about whether park staff should manually seed the meadows where lodge visitors gather or to let the buttercups and salmonberries crawl naturally uphill. I don’t know where they ended up on that.
Daniel Farber | April 24, 2023
Ever since the Supreme Court decided West Virginia v. EPA, conservatives and industry interests have claimed that just about every new regulation violates the major question doctrine. When the Biden administration ramped up fuel efficiency requirements through 2026, ideologues such as the Heritage Foundation and states like Texas were quick to wheel out this attack. No doubt the same attack will be made on the administration's ambitious proposed post-2026 standard. Maybe Judge Kacsmaryk in Amarillo, crusader against abortion pills and all things liberal, would buy that argument. But opponents won’t be able to handpick their judge this time, and the chances that this argument will win in the D.C. Circuit are slim to none.
Cinthia Moore | April 24, 2023
Nevada is considered one of the hottest states in America, and it consistently tops the list of places with the most heat-related deaths per year in the country. But what a lot of people don’t know is that it is also the second most polluted state, with wildfires, vehicles, factories, and the mining industry being the biggest sources. The deadly combination of scorching heat and poor air quality makes Nevada a hazardous place to work, especially for migrants who work under the heat of the sun. Even those working indoors are exposed to poor air quality with no climate controls every single day.
A.R. Siders | April 21, 2023
Dr. Syukoro Manabe, Nobel Prize winner in physics for his groundbreaking work on climate modeling, said that while climate modeling is difficult, “nothing is more difficult than what happens in politics and in society.” Social scientists, not surprisingly, cheered his words, having long argued that not only are social sciences not “soft” but also that numerous social disciplines — anthropology, sociology, economics, law, public policy, and more — are critical both to understand the consequences of climate change and to develop climate mitigation and adaptation strategies. For all that it centers on a cephalopod, The Octopus in the Parking Garage, Rob Verchick’s new book about climate resilience, is a book about why social science is and must be at the heart of climate action.