Chevron deference has been a staple of American federal jurisprudence since its implementation in 1984.  The case, Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, arose from EPA’s adoption of a rule defining a “stationary source” of air pollution to variously allow for “bubbles” of individual discharge points—rather than requiring each individual discharge point to be treated as a “stationary source” subject to individualized discharge limitations for protection of air quality.  The Natural Resources Defense Council, among others, litigated to challenge the rulemaking, arguing that EPA’s definition of “stationary source” was contrary to the statutory requirements of the Clean Air Act.

The Chevron Court—comprised of six justices with Marshall, Rehnquist, and O’Connor taking no part in the decision—not only determined that EPA’s definitional rule complied with the Clean Air Act, but also that EPA was entitled to significant deference in rulemaking on this issue.  The Court first employed the ordinary rules of statutory construction to evaluate “whether Congress has directly spoken to the precise question at issue[,]” 467 U.S. at 842, because if Congress has so spoken the Court and EPA “must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43.  However, where the relevant statute is silent or ambiguous on the issue, the Court determined that the federal courts’ only concern would be “whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843.  Indeed, in Chevron itself, the Court determined that EPA’s definition of “stationary source” was “a permissible construction of the statute . . . .” Id. at 866.

Chevron has since suffered from much criticism, despite its position as a keystone doctrine of federal administrative law.  The Congressional Research Service has collected instances where sitting justices Alito, Gorsuch, Thomas, and Roberts have, in various degrees, criticized the doctrine or flagged a forthcoming end, alongside three 2022 Supreme Court decisions concerning agency interpretations of federal statutes with no mention of Chevron.[1]  Simultaneously, a “major questions doctrine” has appeared in the federal appellate courts, found its pinnacle in the 2022 Supreme Court opinion in West Virginia vs. EPA, and required clear expression of Congressional authority in those “‘extraordinary cases’ when the ‘history and breadth’ and ‘economic and political significance’ of the action at issue” gives a court “‘reason to hesitate before concluding that Congress meant to confer such authority” on the agency.  North Carolina Coastal Fisheries Reform Group v. Capt. Gaston LLC, 2023 WL 5009246 at *2 (2023) (quoting West Virginia, 142 S.Ct. at 2608).

Today, Loper Bright Enterprises v. Raimondo, No. 22-451, sits with the Supreme Court and represents a full-fledged attack on Chevron deference.  Raimondo arises from a fisheries regulation under the 1976 Magnuson-Stevens Act empowering the Secretary of Commerce (who delegated to the National Marine Fisheries Service) to adopt fishery management plans that can require a commercial fishing vessel to quarter federal observers and, in some cases, require the vessel to pay the salaries of those observers.  In contexts outlined in the enabling statute, the statute caps salary payments at 2 or 3 percent of the vessel’s haul.  The Raimondo petitioners complained of the Secretary of Commerce’s incorrect application of the enabling statute resulting in approximate losses of 20% to affected vessel owners rather than this 2 or 3 percent cap, according to Commerce’s own environmental analyses. Petr. Br. pp. 12-13.  With reference to Chevron, the federal District Court and Court of Appeals affirmed the agency action; at the Supreme Court, the Raimondo petitioners asked the court to “jettison Chevron altogether—or at least narrow its scope.” Petr. Br. p. 2.

Former U.S. Solicitor General Paul Clement is among counsel to the Raimondo petitioners and opens with a clear attack on Chevron’s legitimacy.  He opens with noting that Chevron itself was decided by “a six-justice court—the bare minimum for a quorum[,]” Petr. Br. 1., and that “[e]ver since, judges, litigants, and scholars have struggled not only to apply Chevron, but to reconcile it with the Constitution, the Administrative Procedure Act (APA), and the historical record.” Id.  The question presented by the petitioner is clear in its aim: “Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” Petr. Br. at i.

Under Chevron such deference is broadly required.  Even where Congressional authority to an agency to regulate is deemed implicit rather than explicit, a court applying Chevron cannot “substitute its own construction of a statutory provision for a reasonable interpretation” by an agency. Chevron at 844.  Whether this broad deference will survive the coming summer remains to be seen.  Perhaps Mr. Clement’s nod to “controversial powers” will trigger a “major questions” doctrine treatment that allows Chevron to remain as a background principle; perhaps Chevron is jettisoned altogether in favor of the traditional rules of statutory construction employed by a reviewing court in evaluating whether an agency has appropriately interpreted a statute.  Perhaps some degree of deference remains—perhaps a Skidmore deference—allowing the special knowledge and political acumen of federal agencies to enjoy deference where they persuasively come to their interpretive conclusions. In any event, we can all anticipate, many eagerly, that administrative deference under Chevron will have a watershed moment before the Supreme Court’s next term is out.

[1] Congressional Research Service, Chevron Deference: A Primer at pp. 17-19.