The U.S. Supreme Court will hear a case from New Jersey commercial fishermen next term that could significantly constrain federal agencies’ rulemaking, the court said Monday.
The order announcing the court would hear the case, an appeal from the D.C. Circuit Court of Appeals initially brought by New Jersey fishing operations that objected to paying for federal observers, said the justices would consider overruling a 1984 case that established a principle giving federal agencies wide latitude in establishing rules and regulations.
The conservative-dominated court would hear the case during its term that runs from fall 2023 to spring 2024.
The 1984 case, Chevron v. Natural Resources Defense Council, set a standard now known as “Chevron deference” that holds courts should allow an agency interpretation of law to stand if the statute is ambiguous and the interpretation is reasonable.
The fishing companies asked the justices to overrule that case, or at least narrow it.
Cape May fishing companies
A group of fishing companies, based in Cape May, New Jersey, sued the National Oceanic and Atmospheric Administration in February 2020, challenging a rule the agency published that month that herring fishermen on the Eastern Seaboard say would require them to pay around $710 per day for federal monitors.
The Magnuson-Stevens Act that governs fishery management in federal waters requires fishing vessels to pay the salaries of observers from NOAA’s fisheries division, called the National Marine Fisheries Service or NOAA Fisheries, who occasionally join fishing expeditions to monitor for violations of a host of federal regulations.
But the law itself limits the circumstances in which fishing vessels must pay those salaries, and caps the cost at 2 to 3% of a vessel’s haul, according to the companies’ Supreme Court petition in November 2022.
The 2020 rule would raise that cost to around 20% of a vessel’s haul, the companies said in the petition.
Such a radical departure from the status quo, especially when it is not prescribed in federal law, should not be allowed, the fishing companies said.
But a three-judge panel on a federal appeals court in D.C., disagreed, citing the Chevron decision and saying NOAA Fisheries should be allowed wide discretion on rulemaking that is ambiguous under the law.
“That is either a fundamental overreading of Chevron or a powerful argument for its overruling,” the fishing companies told the Supreme Court.
The fishing companies asked the Supreme Court to examine two questions.
The first was whether the Chevron standard provided the agency the power to issue its February 2020 rule.
The second question, which the justices said Monday was the only one they would consider, was whether the court should overrule Chevron entirely, or at least narrow it.
The fishing companies say the deference to agency rulemaking is especially unjust in their case because the federal law at issue specifically cites the circumstances under which fishing vessels must pay for federal monitors, and the agency claimed that power beyond those circumstances. If the court does not overturn Chevron, it could rule it was misapplied in cases like this one.
Justice Ketanji Brown Jackson did not participate in the decision to take the case, the court said.
Jackson, President Joe Biden’s appointee, was on the panel of D.C. Circuit Court judges who heard the case in 2021 but was replaced by the time the court issued an opinion in August 2022.
If she continues to be absent from the case, it would give the court’s 6-3 conservative majority an even greater advantage.