WASHINGTON (CN) — The Supreme Court added a second layer to its examination of the inner workings of the federal government on Friday, agreeing to hear another challenge to a decades-old precedent governing agency power.
A Friday afternoon orders list from the court revealed the justices would be reviewing another challenge to Chevron USA v. Natural Resources Defense Council. The court already agreed to hear a challenge to the precedent, but Justice Ketanji Brown Jackson was recused from the case.
The newly granted case is very similar to its predecessor, challenging the authority of the National Marine Fisheries Service to place federal observers on fishing vessels.
Citing the Declaration of Independence in their petition, the fisheries say they suffer similar grievances to those living under English rule.
“The people of New England famously rebelled against George III because he ‘erected’ ‘New Offices and sent hither swarms of Officers to harass’ them ‘and eat out their substance,’” John Vecchione, an attorney with the New Civil Liberties Alliance representing the fisheries, wrote. “Respondents have revived cause for similar grievance by promulgating a regulation that requires at-sea monitors (“ASMs”) to be paid for by the very fishing vessels forced to carry them.”
Like other commercial fishing companies, the fisheries say they harvest Atlantic herring, a small schooling fish, squid, and mackerel, but in ways others do not. Relentless and Huntress operate freezer trawlers that use unique at-sea freezing techniques that allow them to stay at sea longer than other ships — seven to 14 days versus the average of two to three. The unique nature of the ships allows them to fish for herring, squid, and mackerel all during one trip.
Under the Magnuson-Stevens Act, the National Marine Fisheries Service requires fishing vessels to carry a federal observer to oversee operations and ensure companies are complying with federal regulations. Because the freezer trawlers can stay out at sea for longer, Relentless and Huntress say the rule leaves them with higher costs than the rest of the fishing fleet.
“This regulatory inequity threatens petitioners’ use of the flexible style of fishing they have developed and even the use of their vessels with enormous sunk costs,” Vecchione wrote. “The final rule could result in some fishing trips losing rather than making money.”
The companies filed a complaint against the government challenging the rule. A federal judge ruled in favor of the government, citing the Chevron precedent.
For over four decades, Chevron has given government agencies deference in interpreting statutes. The precedent has gained the ire of the conservative legal movement, which believes it gives unelected bureaucrats too much influence.
In 2022, the Supreme Court handed those opposed to Chevron a major win in West Virginia v. EPA. The conservative supermajority formally recognized the major questions doctrine — a carveout of the precedent that says any major government action not explicitly in the law must be authorized by Congress.
The conservative supermajority then exercised this new power the following year to throw out President Joe Biden’s student loan forgiveness plan. According to the justices, Biden did not have explicit authorization from lawmakers to enact such a costly program.
The major questions doctrine marked a huge blow to agency deference, and the justices could take the final shot this term by overturning Chevron altogether.
Although the government notes the similarities in the questions this case asks to the prior fishing battle the justices already agreed to hear, it claims the lower courts have already rejected attempts to combine the challenges.
“To the extent petitioners seek plenary review of the same question that the court has agreed to address in Loper Bright that request should be rejected,” U.S. Solicitor General Elizabeth Prelogar wrote. “The issues concerning Chevron will be fully briefed in Loper Bright, and there accordingly is no reason to grant plenary review in this case as well.”
The court said it would take up both challenges to Chevron together during the January oral argument sitting.
The second challenge to Chevron was one of four cases the court granted on Friday. A case brought by a Texas councilwoman will have the court reviewing retaliation claims. The court will also review a bankruptcy case involving a construction company that manufactured materials with asbestos and if state escrow-interest laws can supersede the National Bank Act.
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