In the summer of 2024, the Supreme Court issued one of its most important administrative law decisions: Loper Bright Enterprises v. Raimondo.1 That decision has since been lauded by certain parties and groups who want to develop public lands, graze federal allotments, fish federal waters, and the like, while minimizing environmental review, including review under the Endangered Species Act (ESA). These parties or groups with deregulatory interests hold up Loper Bright as a universal cure for their perceived regulatory ailments. Some have taken their view of the case to the courts, but so far, courts have not read Loper Bright to write off administrative law wholesale.
At its most basic, administrative law refers to the rules for how agencies work. Congress enacts laws and agencies implement those laws by issuing and enforcing regulations. Via the Administrative Procedure Act and decades’ worth of case law, administrative law governs how agencies make regulations and administer their authorizing statutes, and how federal courts review agency actions. While administrative law can be conceptually dry, it is the foundation of most environmental and endangered species cases. Many cases have been won or lost on the minutiae of administrative law entirely independent of the important conservation and wildlife interests at play. One of these critical details is how much weight a court gives an agency’s interpretation of an ambiguous statute when reviewing an agency’s regulations.
For 40 years, courts answered that question by applying the “Chevron doctrine,” established in the 1984 Supreme Court case Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.2 In Chevron, the court faced the question of whether the Environmental Protection Agency’s (EPA) regulatory interpretation of the term “stationary source” in the Clean Air Act was lawful. In answering that question, the court developed a two-step framework with implications well beyond the specific question at issue in that case.
Under the Chevron framework, the reviewing court started by interpreting the statute. If it found that the statute was clear and unambiguous (Chevron Step 1), it declared the rule lawful or unlawful as consistent or inconsistent with that plain meaning. Only if it determined the statute was unclear or ambiguous did it proceed to evaluate the reasonableness of the agency’s interpretation and defer to any reasonable interpretation or set aside an unreasonable interpretation (Chevron Step 2).
The Supreme Court further developed the Chevron doctrine in United States v. Mead Corporation,3 where it introduced a Step 0. In Mead, the Supreme Court recognized that the assumption underlying Chevron deference, that agency expertise should be respected, only applied to areas where an agency has expertise because Congress delegated it authority to implement a statute. Chevron Step 0 required a court to ask whether Congress intended this agency to interpret this statute. If a case does not meet Step 0, the Chevron framework never entered the equation.
Against this background, deregulatory interests long railed against the Chevron doctrine when attempting to minimize their responsibilities to comply with environmental and wildlife protections. For example, Congress charged the Fish and Wildlife Service and National Marine Fisheries Service (NMFS) with implementing the ESA and Marine Mammal Protection Act (MMPA). When conservation-focused administrations issued protective rules under the ESA and MMPA and deregulatory interests challenged those rules, courts were bound to uphold the agency’s interpretation of the ESA so long as that interpretation met the Chevron test.
Of course, the Chevron doctrine mandated deference to agency interpretations in Step 2 regardless of which administration protected a rule and shielded rules favoring less protection as often as rules favoring more protection. Yet, as deregulatory interests chafed under more protective rules, they often pointed to Chevron as the reason they could not defeat the rules in court.
After decades of advocacy from deregulatory interests decrying the Chevron doctrine, the Supreme Court revisited the doctrine in Loper Bright. After a lengthy justification, it threw out the Chevron doctrine as having been wrongly decided. Instead, the Court stated that courts’ role in our system of government is always to use their own, independent judgment to decide the “best” interpretation of statute. A court could find an agency’s interpretation persuasive in doing so, but is not bound by that interpretation. It is also possible that the court, using its own judgment, could decide the “best” interpretation is that the statute meant to give room for the agency to use its own judgment in a given area. Deregulatory interests celebrated the Loper Bright decision, viewing it as the key to success in challenges to regulations protecting the health and welfare of people and the environment.
But Loper Bright is not the panacea that deregulatory interests hoped for. Under the prior Chevron framework, a court conducted its own statutory analysis. If the challenged agency statutory interpretation failed either Step 0 or Step 1, the analysis ended on the court’s interpretation. In those instances, courts never reached the stage of deferring to agency interpretations. Loper Bright does not mark a significant change in approach for those cases.
This critical distinction between the analytical statutory interpretation steps courts still undertake versus the defunct Chevron analysis was central to a case we recently litigated as part of our longstanding efforts to protect the endangered North Atlantic right whale from fishing gear entanglements.
The right whale lives off the eastern seaboard of the U.S. and Canada and numbers only 370 individuals. Traditional lobster fishing uses ropes that stretch from lobster traps on the ocean floor to buoys at the surface. These ropes inadvertently entangle right whales, injuring and sometimes killing them. Entanglements and vessel strikes are the two threats driving the right whale towards extinction.
In 2021, NMFS implemented new regulations expanding protections for right whales by implementing new seasonal closures to lobster fishing gear in areas and times where the whales and dense aggregations of lobster gear overlap. Unfortunately, it inadvertently left a small “wedge” area in federal waters between state and federal seasonal closed areas open to fishing gear when right whale migration and feeding in the vicinity is at its highest levels. NMFS closed this wedge by emergency rules in 2022 and 2023. In 2023, Defenders supported NMFS’ proposal to close the wedge every year. NMFS finalized the rule in 2024.
The Massachusetts Lobstermen’s Association (MALA) opposed closing the area for three months each year, because some of its members benefited from the open wedge by storing gear during the abutting seasonal closures, despite creating an entanglement risk hot spot. MALA challenged the 2024 final rule based on language in a rider to the FY 2023 Consolidated Appropriations Act. The rider temporarily excused NMFS from having to take additional steps to protect right whales from entanglements as the ESA and MMPA require, but contained an exception for emergency rules “in place” at the time the Appropriations Act was enacted in December 2022. MALA argued that because the 2022 emergency seasonal closure was not in operative effect in December 2022 when the Appropriations Act passed, it could not be “in place” such that NMFS was authorized to implement the 2024 closure rule.
MALA cited Loper Bright as one of the reasons the court should reject NMFS’s regulation. A major problem with that argument was that neither NMFS nor Defenders believed that the Chevron doctrine applied in the first place. Prior to Loper Bright, NMFS would have received Chevron deference for regulations interpreting ambiguous terms from statutes it administers, such as the ESA and MMPA. But it would never have received that deference in interpreting the Appropriations Act, because Congress did not delegate authority to NMFS to implement that law in the first place.
The district court squarely agreed, stating “Deference to the agency’s interpretation plays no part when dealing with a clear congressional command.” On appeal, the First Circuit also summarily rejected MALA’s argument, simply stating that its decision “involve[d] no deference to the NMFS’s construction” of the Consolidated Appropriations Act. Reversing the district court, it upheld NMFS’s wedge closure rule. MALA tried to play Loper Bright as a trump card and lost.
Although the Chevron doctrine took on almost mythical status in the deregulatory agenda, the truth is the doctrine never applied universally. The right whale/wedge litigation is just one of many cases where the change from Chevron to Loper Bright is irrelevant to adjudicating an agency’s action. Going forward, deregulatory interests cannot count on invoking Loper Bright for an automatic win. Courts are bound to follow the reality of the law, not myth, just like the First Circuit did here.
1 22-451 Loper Bright Enterprises v. Raimondo (06/28/2024)
2 Chevron U.S.A., Inc. v. NRDC | 467 U.S. 837 (1984) | Justia U.S. Supreme Court Center
3 United States v. Mead Corp. | 533 U.S. 218 (2001) | Justia U.S. Supreme Court Center
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