CSG Law Alert: The Sound of Silence: Does Statutory Silence Trigger Chevron Deference in a Post-Loper Bright & Relentless World?

On January 17, 2024, the Supreme Court of the United States heard oral arguments in Loper Bright Enterprises, Inc. v. Raimondo, a case that has made national headlines for threatening to overturn the cornerstone legal doctrine of Chevron deference. Chevron deference is a legal doctrine of statutory interpretation that provides federal courts must defer to an administrative agency’s interpretation of a statute they administer whenever: 1) the intent of Congress was ambiguous, and 2) the agency’s interpretation is reasonable. The doctrine stems from the 1984 SCOTUS decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). This case is of particular importance because it could change the way courts view federal agency interpretations of statutory authority such as the United States Environmental Protection Agency, among others.

The Petitioners in Loper are four family-owned and family-operated companies that participate in the Atlantic herring fishery. In February 2020, Loper Bright Enterprises, Inc. (“Loper”) filed suit alleging, as relevant here, that the 1976 Magnuson-Stevens Act (“MSA”) did not authorize the National Marine Fishery Service (“NMFS”) to mandate industry-funded monitoring of herring fisheries.  Loper contends the MSA allows the NMFS to require at-sea monitors but prohibits any industry-funded monitoring programs beyond three circumstances explicitly enumerated in the Act. Loper argues that Congress would never intentionally delegate such a controversial power through statutory silence.

The District Court granted summary judgment in favor of NMFS, finding that the MSA unambiguously provides for industry-funded monitoring of the herring fishery, and thus concluded its analysis at the first step of Chevron. The Court acknowledged Loper’s arguments regarding ambiguity in the statutory language but noted that even if these arguments successfully argued for ambiguity in the text, NMFS’s interpretation of the MSA would have been a reasonable reading of the statute.

A divided D.C. Circuit panel affirmed, but the majority did not rest its decision on Chevron step one, as it ultimately found statutory “silence” such that the MSA leaves “unresolved” whether NMFS “may require industry to bear the costs of at-sea monitoring.” The majority explained that “it behooves the court to proceed to Step Two,” where it declared NMFS’ “interpretation” of the MSA “reasonable.” Judge Walker dissented, explaining that “Congress unambiguously did not authorize [NMFS] to make herring fishermen in the Atlantic pay the wages of federal monitors who inspect them at sea.”

It is expected that the Supreme Court will render its decision by the end of its term this summer. The outcome of this case will ultimately determine how much leeway will be given to agencies like USEPA to interpret their operating statutes, particularly older statutes that have not been amended by Congress in many years. For example, the Federal Clean Air Act has not undergone amendment since 1990. Regulations and policies have been enacted since that time which have been questioned as beyond what Congress considered when the CAA was amended. The USEPA has been able to defend many of its policies and regulations promulgated based upon Chevron two-step analysis, but now it is unclear whether the same deference will be given to agencies by the Supreme Court after the court renders a decision.

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