The petitioners in Loper Bright Enterprises, et al. v. Raimondo have filed their merits brief in the U.S. Supreme Court urging the Court to overrule its 1984 decision in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.  That decision produced what became known as the “Chevron framework”–the analysis that courts typically invoke when reviewing a federal agency’s interpretation of a statute.  Under the Chevron framework, a court will typically use a two-step analysis to determine if it must defer to an agency’s interpretation.  In step one, the court looks at whether the statute directly addresses the precise question before the court.  If the statute is silent or ambiguous, the court will proceed to step two and determine whether the agency’s interpretation is reasonable.  If it determines the interpretation is reasonable, the court will ordinarily defer to the agency’s interpretation.

The petitioners are four companies that participate in the Atlantic herring fishery.  The companies filed a lawsuit in federal district court challenging a regulation of the National Marine Fisheries Service (NMFS) that requires vessels that participate in the herring fishery to pay the salaries of the federal observers that they are required to carry.  The Magnuson-Stevens Act (MSA) authorizes the NMFS to require fishing vessels to carry federal observers and sets forth three circumstances in which vessels must pay observers’ salaries.  Those circumstances did not apply to the Atlantic herring fishery. 

Applying Chevron deference, the district court found in favor of NMFS under step one of the Chevron framework, holding that the MSA unambiguously authorizes industry-funded monitoring in the herring fishery.  The district court based its conclusion on language in the MSA stating that fishery management plans can require vessels to carry observers and authorizing such plans to include other “necessary and appropriate” provisions.  While acknowledging that the MSA expressly addressed industry-funded observers in three circumstances, none of which implicated the herring fishery, the court determined that even if this created an ambiguity in the statutory text, NMFS’s interpretation of the MSA was reasonable under step two of Chevron.

A divided D.C. Circuit, also applying the two-step Chevron framework, affirmed the district court.  The majority concluded that under step one of Chevron, the statute was not “wholly unambiguous,” and left “unresolved” the question of whether NMFS can require industry to pay the costs of mandated observers.  Applying step two of Chevron, the majority concluded that NMFS’s interpretation of the MSA was a “reasonable” way of resolving the MSA’s “silence” on the cost issue.  The dissenting judge concluded that Congress had unambiguously not authorized NMFS to require industry to pay the costs of mandated observers other than in the circumstances specified in the MSA.

The Supreme Court granted certiorari to consider the following question:

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.

In their brief, the petitioners argue that the Court should overrule or limit Chevron for the following reasons:

• Because the question presented seeks to overrule Chevron’s interpretative methodology rather than the Court’s interpretation of the Clean Air Act in that case, Chevron is entitled to little, if any, stare decisis effect.  No concrete reliance interests support preserving Chevron because procedural rules do not engender reliance interests and, in reality, Chevron is “a reliance- destroying doctrine [as] [i]t enables agencies to change the import of the U.S. Code and empowers every new administration to change the rules on issues of fundamental importance.”  To the extent anyone has attempted to rely on a substantive ruling in a case decided by application of the Chevron framework, under principles of stare decisis, such substantive precedent “would not necessarily” be disturbed if Chevron is overruled.
• Chevron is “egregiously wrong” because its “rule of judicial deference to the executive’s interpretation of statutes is flatly inconsistent with [the] Constitution, the [Administrative Procedure Act], and centuries of tradition.”  It impermissibly transfers both the Article III judicial power to interpret statutes and Article I legislative power to Article II executive agencies and runs afoul of the Due Process Clause by requiring courts to favor the government which is generally a party in cases in which courts apply Chevron.  While the Supreme Court has traditionally (as a standard principle of textual interpretation rather than a principle of deference) given respect to contemporaneous and longstanding interpretations of legal text, this does not provide a justification for Chevron.  This is because “Chevron and its progeny demand deference to an agency’s non-contemporaneous and inconsistent interpretations of a statute—a rule without any historical pedigree.”  Chevron flouts the language of the APA which provides that “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”  This language should be read to require courts to interpret statutes de novo.
• Chevron has proven to be unworkable, as evidenced by “this Court’s consistent declination to apply it in cases where the lower courts and parties labored extensively to document that they were on this or that side of Chevron’s hazy doctrinal lines.  With the greatest respect, this Court has already voted with its feet…by refusing to apply a test that has proven to be too incoherent or imprecise to serve any function beyond occasionally adding makeweight to a decision reached by other means.” (citations omitted).
• Chevron has undermined how the political process is supposed to operate because it “incentivizes a dynamic where Congress does far less than the Framers anticipated, and the executive branch is left to do far more by deciding controversial issues via regulatory fiat.  Major policy disagreements that should be settled by legislative compromise are instead resolved temporarily by executive actions that change with every administration.”
• If the Court chooses not to discard Chevron entirely, it should at least narrow the doctrine to clarify that it does not apply merely because a statute is silent on a given issue.  Giving deference based on statutory silence “is ultimately a substantive canon of statutory construction: If the statute is silent, the government wins.”  It is a bedrock principle that an agency has no power to act unless and until Congress confers power on it.  A rule that requires a court “to interpret statutory silence as an agency-empowering delegation” stands this principle on its head.  (emphasis included).  “[T]he far more obvious inference from statutory silence is that Congress withheld a power from the agency, rather than handing it a blank check.”

The petitioners conclude their brief by arguing that regardless of whether the Court overrules or limits Chevron, it should “reverse the decision below rather than remand in order to provide an example of what statutory interpretation should look like in a post-Chevron (or Chevron-lite) world.”

As noted above, the petitioners argue that, under principles of stare decisis, substantive precedent established in cases decided by application of the Chevron framework “would not necessarily” be disturbed if Chevron is overruled.  Accordingly, one cannot dismiss the potential for decisions that have relied on Chevron to uphold an agency’s statutory interpretation (including where the result has been favorable to industry) to be revisited should the Supreme Court overrule or limit Chevron. 

Respondents must file their merits brief by September 15, 2023.