Herring fishermen’s case may mean Supreme Court overturns Chevron

For 40 years, courts have generally deferred to the judgment of federal agencies when it comes to turning laws passed by Congress into detailed regulations designed to protect the environment, consumers and the workplace.

They did so because of the precedent set in 1984 in Chevron U.S.A. v. Natural Resources Defense Council, which requires judges to defer to the reasonable interpretation of federal agency officials charged with administering ambiguous federal laws.

But as the court has moved to the right in recent years, the conservative majority has been less likely to invoke that ruling, which outside groups have long seen as giving unaccountable bureaucrats too much power.

Now the high court is reviewing a pair of challenges to federal rules requiring commercial fishermen to pay for at-sea monitors — cases that could lead to the demise of Chevron, much as the 2022 Dobbs ruling overturned the historic Roe v. Wade ruling and eliminated the nationwide right to abortion.

The cases brought by Atlantic herring fishermen in New Jersey and Rhode Island will be argued Wednesday before a court remade by the addition of three justices nominated by President Donald Trump, whose administration put a premium on judges skeptical of federal government power.

Both lawsuits are backed by conservative legal organizations — the Cause of Action Institute and New Civil Liberties Alliance — that have received millions of dollars from the Koch network, founded by billionaire industrialist Charles Koch and his late brother, David Koch.

The framework, known as “Chevron deference,” may sound like a boring academic exercise, says William & Mary law professor Allison Orr Larsen, who specializes in administrative law. But the question of how much flexibility to give federal agencies to implement laws passed by Congress has enormous implications.

“There’s a lot of money and practical consequences attached to those legal ambiguities,” Larsen said. “It’s ultimately a question about who decides. Is it an agency who decides or a court?”

Supporters of Chevron, including environmental groups, labor and civil rights organizations and the Biden administration, say Congress often writes broad statutes to give government experts the leeway to address emerging complex problems. Overturning or scaling back the legal precedent, they say, will hamstring federal agencies and shift power to the courts and Congress.

Solicitor General Elizabeth B. Prelogar, who is defending the precedent, told the justices in court filings that overruling Chevron “would be a convulsive shock to the legal system.”

David Doniger, senior strategic director of the Natural Resources Defense Council, called the effort to undo Chevron a “brazen attempt by the right to hobble modern government and destroy its capacity to address the modern world’s problems at the scale, speed and number they come at us.” The government, he said, will be paralyzed if Congress is forced to make technical, scientific policy decisions.

Opponents of Chevron, in contrast, say the framework unfairly tips the scales in favor of government agencies in litigation challenging burdensome regulations.

Philip Hamburger, a Columbia Law School professor and founder of the alliance representing the Rhode Island fisherman, called it “scandalous” and…