On June 30, 2023, Craig Gilley, Jay Johnson, Laura Rich, and Fred Wagner were quoted in TR Daily regarding potential Chevron doctrine deference changes.
According to the article, the Supreme Court’s decision to grant certiorari in a case challenging a decision by the National Marine Fisheries Service to require a herring fishing company to pay for fishery management monitors on its boats (Loper Bright Enterprises et al. v. Gina Raimondo, case 22-451) could have broad implication on the Chevron doctrine, under which courts defer to federal agencies' reasonable interpretations of statutes.
While it is possible the Supreme Court could rule in the case in a way that upholds the Chevron doctrine, several justices have indicated their general skepticism about the appropriateness of that deference, and the fact that the Supreme Court decided to consider the case means that "there's likely to be some change in the Chevron regime," said Johnson.
Among the avenues the Supreme Court could take, he said, is to rule that courts should not defer to agencies in cases where a law is silent on a particular matter. Another possibility is that the justices could rule that the Chevron doctrine has been proven not to work and leads to, among other things, agencies saying there is ambiguity in laws where there is none in order to achieve particular policy outcomes, Johnson said.
Some of the current Supreme Court justices are "uncomfortable" with the courts generally deferring to "expert" agencies and are using the Loper case as "an opportunity to reimagine Chevron," said Gilley.
Justice Clarence Thomas and others have "been looking for the opportunity to deal with" limiting or eliminating Chevron deference and that the Loper case "appears to be that opportunity," said Wagner.
If the Supreme Court eliminates Chevron deference, it likely will result in, among other things, agencies taking longer to issue decisions. In turn, said Rich, "I think there's a possibility of states stepping in, depending on their political interests, into the gaps that may be forming" while federal agencies complete rulemakings. Another outcome, she and others suggested, is that lawmakers may start providing more specificity in legislation to clearly state their intentions so that federal agencies have "sufficiently robust, clear, and explicit" guidance regarding what they are allowed or expected to do. In addition, she speculated, that could lead to more compromise and collaborations between lawmakers-both across the aisle and within the same parties-to provide more specificity to agencies.