Kean Miller is closely following the recent challenges to the Chevron Deference standard established by the Supreme Court in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). As applied by federal courts for the last four decades, the Chevron Deference standard first requires that a court determine whether a statute is ambiguous. If the statute is ambiguous, the federal court defers to the agency’s interpretation of the statute. If the statute is not ambiguous, the federal court applies the clear intent of Congress under the principles of statutory interpretation. In recent years, plaintiffs and public interest groups have increasingly called for the Supreme Court to overturn Chevron.

As previously reported, a group of plaintiffs, in the Loper Bright Enterprises v. Raimondo, directly challenged the Chevron Deference standard arising out of an agency’s interpretation of certain provisions in the Magnuson-Stevens Act. Within the last month, the Supreme Court granted writ to hear a second case, Relentless Inc. v. U.S. Department of Commerce, which challenges Chevron Deference on the same grounds as Loper. The Loper and Relentless cases both seek reversal of Chevron and abandonment of agency deference.

As background, the Loper and Relentless cases arise out of the National Marine Fisheries Service’s interpretation of the Magnuson-Stevens Act and the apparent statutory silence related to the funding of regulatory compliance monitors. The agency’s interpretation of a statutory rule would require fishermen to pay part of the costs for maintaining federal compliance monitors on their ships. The Plaintiffs have appealed (i) the agency decision and interpretation of the statute; and (ii) the deference given to the agency’s interpretation under Chevron. The Plaintiffs request the Court abandon Chevron and clarify the statutory rule at issue.

With Chevron Deference directly before the Supreme Court, multiple advocacy groups, including former state supreme court justices, Advancing American Freedom, Buckeye Institute, New England Fishermen, Southeastern Legal Foundation, and Ohio Chamber of Commerce, have filed amicus briefs arguing for the departure and/or overruling of Chevron Deference. Within these briefs, the groups strenuously argue for the reversal of Chevron in order to hand statutory interpretation back to the federal courts without any deference to agency decisions or interpretations of federal statutes.

The brief filed by former state supreme court justices argues for a more workable standard that would allow judges to interpret statutes based on general principals of law without giving unbridled deference to the agency. The judges further argue that Chevron Deference undermines the Constitution’s structure and scheme to preserve liberty and guard against federal abuse of power by improperly expanding agencies regulatory authority. The former state supreme court justices highlight that the type of deference Chevron provides ultimately leads to inconsistent findings among the federal judiciary.

The Advancing American Freedom, New England Fishermen, Buckeye Institute, and Southeast Legal Foundation groups echo the former state supreme court justices’ arguments claiming that Chevron Deference is unconstitutional and unworkable. Specifically, the New England Fishermen and Southeast Legal Foundation argue that Chevron requires lower courts to accept an agency’s determination and shrink the court’s duty to interpret statutory text.

Although Chevron has come under scrutiny in more recent years and is ripe for consideration, many of the criticisms fail to consider that Chevron has a failsafe to avoid the impacts of an agency’s unreasonable statutory interpretation. Even in the face of the deference given to agency interpretation of ambiguous statutory text, a reviewing court can still overturn an agency’s unreasonable interpretation.

Importantly, the Chevron standard recognized that agencies have specialized knowledge and experience regarding how to implement and interpret ambiguous policies, rules, and statutory text. Do agencies always get it right? No; however, an agency is in a better position to interpret and apply an ambiguous statute based on its expertise and specialized knowledge – expertise and specialization that courts may not possess. Chevron Deference considers an agency’s expertise and provides adequate deference to the agency’s decisions. Nonetheless, providing deference does not give an agency unbridled authority or allow a federal court to rubber stamp an agency’s interpretation that is completely unreasonable and unworkable.

Although many theorize the Court will overrule Chevron, it is equally possible the Court will sidestep the issue, as the Court has done in the past, and maintain Chevron Deference while finding the agency’s interpretation unreasonable. Kean Miller will continue to follow the Loper and Relentless cases which will be set for oral argument in January 2024.