The U.S. Supreme Court is weighing what could be one of the most important decisions it makes this term: whether to uphold a 1984 legal precedent known as Chevron, which states that federal courts must defer to regulatory agencies when a law is ambiguous.
But a lawsuit filed by three commercial fishermen at the Jersey Shore could sink Chevron.
Environmentalists fear that would greatly curtail the power of federal regulators such as the Environmental Protection Agency, as well as a broader spectrum of agencies handling public health and safety.
In short, the fishermen are objecting to a regulation that requires them to pay observers to ensure their vessels comply with federal regulation while at sea. Cape May, New Jersey-based commercial fishing operations, run by Bill Bright, Wayne Reichle, and Stefan Axelsson, filed a suit, Loper Bright Enterprises v. Raimondo, which is backed by conservative groups seeking to overturn Chevron.
“This case has nothing to do with politics and everything to do with protecting the livelihoods of my family and crew,” Bright said in a statement forwarded to The Inquirer by August, a public relations firm. “There are substantial costs for every fishing trip we take, and if we catch nothing or the catch is small, we can actually lose money. Monitors are paid regardless of the catch, and under this rule they would make more than me and my crew on many trips, which isn’t financially feasible or fair.”
Bright has said a single observer costs him $700 a day.
What’s facing the Supreme Court?
Last week, the justices heard arguments in Loper Bright Enterprises v. Raimondo. The justices are deciding whether to uphold or overrule the four-decades-old Chevron v. Natural Resources Defense Council decision.
The justices heard three-and-a-half hours of oral arguments. Multiple media outlets reported the justices asked questions indicating that the Chevron doctrine is unlikely to remain fully intact. A majority of the justices appeared to lean toward scrapping it altogether or limiting its scope.
If the justices do scrap Chevron, the opinion could impact multiple agencies that count on using their own experts to interpret and enforce federal laws.
Why are the Cape May anglers suing?
The fishermen are challenging the National Marine Fisheries Service for requiring the herring industry to take on the cost of paying observers.
The Fisheries Service is allowed under the Magnuson-Stevens Fishery Conservation and Management Act (MSA) to require an observer on board a vessel to make sure an area isn’t overfished. However, fishermen say that requiring them to pay observers salaries is an extraordinary step. They say that the Fisheries Service, citing ambiguity in the statute, began declaring that herring fishery vessels would have to cede upward of 20% of their returns to pay the salaries.
A lower court upheld the policy, citing Chevron. The fishermen appealed to the Supreme Court.
What is the precedent?
Chevron created a two-step method used to examine whether a federal agency’s interpretation of a statute is lawful. First, a court needs to decide whether a law’s language is clear. A second step is required if the court finds a law “silent or ambiguous.”
That second step mandates that a court defer to the agency involved. The court reasoned decades ago that made sense because some laws need highly-trained staffs to interpret and enforce them. Congress does not have such experts on staff.
Who is supporting the fisherman and why?
But conservative groups backing the fishermen aren’t just asking for relief from the pay-for-observers rule — they want the court to overturn Chevron altogether. The fishermen are represented by the Cause of Action Institute and New Civil Liberties Alliance. Both groups have deep ties to other conservative groups, including those funded by billionaire Charles Koch, the New York Times has reported.
Groups such as the Cato Institute, Christian Employers Alliance, and members of Congress such as Sen. Ted Cruz and Speaker of the House Mike Johnson have filed briefs in support of the fishermen.
The gist of their argument: Congress never granted the executive branch the authority to create a rule that mandates the fishermen pay for an observer, and that the Chevron doctrine gives agencies too broad a power to define laws. Only Congress should be making such laws, and the courts should be empowered to interpret them, they say.
What’s the implication?
The National Resources Defense Council (NRDC), a large environmental nonprofit, warns that overturning Chevron would upend decades of precedent agencies rely on to function smoothly. It cautions that Congress can’t “micromanage” all the legislation that it passes and must rely on federal agencies, which fall under the president, to carry out laws and policies.
Jeff Turrentine wrote a commentary on the NRDC website, warning that “the Supreme Court could seize for itself and lower-court judges a policy-making role the Constitution did not intend for them to have.” Turrentine said overturning Chevron would strip many federal agencies of power to interpret laws they have to carry out. That role, he wrote, would be turned over to federal judges.
Who are the Cape May fishermen involved in the case?
Bill Bright, who has been fishing for 40 years and is based in Cape May, owns two vessels, Retriever and Defiance, that run along the Atlantic Coast. His wife, two sons, and two daughters help run the operation, according to a website set up for the case. Bright also owns and operates Hooked Up Seafood, a restaurant on Rio Grande Avenue in Wildwood.
One of his sons is training to be a ship and fishing equipment engineer, and the other works alongside him as a fisherman on the Retriever. Meanwhile, his wife and daughters manage the restaurant, which serves seafood caught from his vessels and other local boats. Other than herring, Bright fishes for tuna, swordfish, mahi-mahi, and tilefish that are also sold in the restaurant.
Wayne Reichle, a third-generation fisherman, is president of Cape May-based Lund’s Fisheries, which has more than 200 employees. He purchased Lund’s in the early ‘90s and his father serves as the company’s chairman.
Reichle’s operation has workers on both the East and West coasts and 19 vessels using 34 ports. Six of his vessels are licensed and outfitted for Atlantic herring fishing. Those include the Jersey Cape, Eva Marie, Golden Nugget, Enterprise, Anya Jo, and Nancy Elizabeth.
Stefan Axelsson, is a third-generation commercial fisherman and was born and raised in Cape May. His grandfather came to Cape May from Sweden in 1954 to start the family-owned fishing operation. Axelsson owns the herring boat Dyrsten, and his daughter accompanies him on fishing trips.
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