What’s happening: On January 17, the Supreme Court will hear oral arguments in a pair of cases: Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce.  Both started as cases about fisheries management but are now cases that could put a bullseye on rules that agencies such as the EPA issue to protect our health and environment.

Why it matters: Congress passes laws, and federal agencies carry them out. Under a long-settled legal rule called the Chevron deference doctrine, when a law is ambiguous and the agency charged with administering it has interpreted it in a reasonable way, judges are supposed to defer to the agency. This allows professional and politically accountable staff at administrative agencies to apply their expertise to craft effective policies.

In Loper Bright, a small group of fishers have asked the Supreme Court to overturn this doctrine in the context of a challenge to local fishing regulations. These fishers are receiving free legal services from a law firm backed by powerful corporate interests. If the Court grants their request, these and other industries will take advantage of the changed landscape to challenge regulations they don’t like before judges who will be empowered and emboldened to second-guess federal agencies.

Earthjustice has filed an amicus brief in Loper Bright on behalf of groups dedicated to protecting our oceans and sustaining our fisheries. The brief urges the Court not to strike down the fisheries management policy at the heart of this case.

What’s the policy at the heart of Loper Bright?

• The facts of the matter: Fishers that operate in New England challenged a monitoring program supervised by the National Marine Fisheries Service (NMFS), which is the federal agency responsible for managing and protecting marine resources.
• An essential function: The program requires the biggest ships that catch the most fish in the fishery to cover the costs of monitors who accompany them on fishing trips.  Those independent monitors collect data that is critical to making sure the fish populations that sustain the community around the fishery (including the companies) do not collapse. The government pays for its share of the costs of running this program, such as training observers and managing the data collected.
• Authorized by Congress: This program is firmly rooted in the Magnuson-Stevens Act, a longstanding federal law that requires NMFS to produce fisheries management plans that prevent overfishing, requires that those plans reflect “the best scientific information available,” and also states that management plans may “require that one or more observers be carried on board” operating fishing vessels.

What’s the legal fight about?

• Dodging the check: The fishers argue that NMFS can’t require them to pay for observers, because the Magnuson-Stevens Act doesn’t explicitly say who bears the cost of observers.
• A loss and an appeal: The fishers lost in the lower courts after those judges deferred to NMFS’ reasonable interpretation of the law. The fishers then asked the Supreme Court to take up their cases in order to overturn the Chevron deference doctrine, and the Supreme Court agreed. The fishers have received amicus support from many industries that are eager to challenge federal regulations: hedge funds, the firearms industry, big agriculture, and more.
• Earthjustice’s view: We filed an amicus brief that defends the NMFS program and urges the Court to leave it in place. “The observer program being challenged in this case relies on a decades-old interpretation of the Magnuson-Stevens Act and rests on the commonsense idea that when Congress enacted a statute that requires reliable data to work, it did not hamper the implementing agencies’ ability to obtain that data,” says Earthjustice Director of Strategic Legal Advocacy Kirti Datla.

Why is the Chevron doctrine important?

• Defer to the experts: The Chevron deference doctrine recognizes that administrative agencies tasked with implementing complex, often scientific, statutes have insights and experience interpreting those statutes that generalist judges lack.  It also recognizes that when Congress writes these statutes and directs agencies to carry them out, it understands that agencies will have to fill in some gaps and empowers them to do so.
• Playing the long game: The industries and lawyers behind this case filed it as part of a decades-long campaign to shift policymaking power towards courts that they think will be more open to their deregulatory agenda.
• Earthjustice’s view: “The Justices should leave statutory decisions that require policy judgments to politically accountable legislators and executive branch agencies,” says Datla.

How does Loper Bright fit into broader trends at the Supreme Court?

• The big picture: The Court’s six-justice conservative majority is aggressively pursuing an anti-environment, anti-regulatory agenda.
• Hostile to federal agencies: In recent cases like Sackett v. EPA and West Virginia v. EPA, this Court has struck down environmental protections. In these decisions, the justices expressed skepticism about the scope of Congress’ authority to regulate private activity and the extent to which Congress can delegate that authority to federal agencies.
• Not just the environment: The Court is questioning assumptions about federal regulatory power across many areas of government, not just in the environmental context. The arguments challengers are offering in other cases on the docket this term, such as Securities and Exchange Commission v. Jarkesy and CFPB v. CFSA, would dramatically reshape how our government works.

How is Earthjustice responding to this changing legal landscape?

• We are choosing cases and arguments carefully to avoid facing the most hostile courts or creating bad precedent. 
• We fight in many venues besides the Supreme Court. Ninety-nine percent of federal cases are resolved in lower federal courts, and that is where most of Earthjustice’s cases are resolved as well. We also currently have cases in about two dozen state court systems, and we litigate in state administrative venues like public utility commissions.
• We have proven that we can win under hostile conditions. For example, we built an incredible record of success defending environmental protections against the Trump administration. Earthjustice won 85% of the cases we brought against that administration.