Notice & Comment

Loper Bright Enterprises v. Raimondo – Perhaps Not the Best Vessel to Help Clarify Application of Chevron, by Tyler Scandalios

Putting aside for the moment the possibility of the Supreme Court overruling Chevron U.S.A., Inc. v Natural Resources Defense Council, 467 U.S. 837 (1984) (“Chevron”), in the coming term the Supreme Court will hear argument on and consider, in the case of Loper Bright Enterprises v. Raimondo (“Loper”), whether the Court should “clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency [under Chevron]”.[1]

As most readers of this blog are likely aware, Chevron stands for the principle that where an agency charged by Congress with administering a statute reasonably interprets (through notice-and-comment rulemaking, formal adjudication, or similar) an ambiguity in that statute, courts should not substitute their own construction of the ambiguous statutory provision for that of the agency’s.  Chevron rests on the Court’s acceptance that “[s]ometimes legislative delegation to an agency on a particular question is implicit rather than explicit”.[2]

Chevron does not, however, stand for the principle that courts must accept the premise that Congress implicitly delegated authority to an agency on a particular question, or that Congress did so to the degree claimed by the agency, if such a finding of implicit delegation would be unreasonable.  Although this is not explicitly stated in the original Chevron decision, the Chevron Court did limit application of Chevron’s holding to “statutory scheme[s] [the agency] is entrusted [by Congress] to administer”,[3] indicated that an agency should not receive deference if the agency’s interpretation of the statutory ambiguity is not reasonable “in the context of th[e] particular program”,[4] and indicated that Chevron deference is only relevant when an agency is acting “within the limits of [Congress’s] delegation [of policymaking responsibilities to the agency]”[5]

Supreme Court decisions after Chevron have further indicated that this is how Chevron should be applied.  In particular, U.S. v. Mead Corp., 533 U.S. 218 (2001) (“Mead”) and the Court’s “major questions doctrine” (a principle established by a series of Supreme Court decisions addressing Chevron deference) both appear to be premised on the principle, consistent with Chevron, that a court need not presume Congress implicitly delegated authority to an agency on a particular question, or that Congress did so to the degree claimed by the agency, if upholding such a presumption in that case would be unreasonable.  As background, in Mead the Court held that Chevron deference does not apply if Congress did not delegate authority to an agency generally to make rules carrying the force of law or if the agency interpretation claiming deference was not promulgated in the exercise of such authority, and the Court’s major questions doctrine provides that Chevron deference does not apply where the agency’s underlying claim of authority concerns an issue of vast economic and political significance and Congress has not clearly empowered the agency with authority over the issue.  Importantly, the Court in Mead found there were “[no] circumstances reasonably suggesting that Congress ever thought of [the agency] rulings [at issue] as deserving [Chevron] deference”[6] and the Court in West Virginia v. EPA, 142 S. Ct. 2587 (2022) (a recent major questions doctrine case) discussed how the major questions doctrine address[es] the issue of “agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”[7]  Similarly, in a case that some have deemed to be the first major questions doctrine case,[8] MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218 (1994), the Court held that the agency’s interpretation was “not entitled to deference [because] it goes beyond the meaning that the statute can bear”[9] and that it was “highly unlikely”[10] that Congress had implicitly granted the agency discretionary authority to the degree claimed by the agency.

Which brings this discussion back to Loper, in which the petitioner asks the Court to (as an alternative to overruling Chevron) clarify that, as a general rule, statutory silence concerning controversial powers expressly but narrowly granted elsewhere in a statute does not constitute an ambiguity that warrants application of Chevron.  However, unlike the Mead case and the major questions doctrine, it is not necessarily clear that such a rule would be consistent with Chevron or would be helpful in lower courts’ application of Chevron.  

I have not conducted an analysis of the statutes and other factors and circumstances at issue in Loper, but even if it is the case that Chevron deference does not apply to the National Marine Fisheries Service (“NMFS”) rule at issue in Loper on the basis that there are no indications that could reasonably uphold a presumption that Congress implicitly delegated authority to the NMFS to require fishing vessels to pay for the cost (and perhaps also considering the amount of the cost to be assessed) of having a government-mandated compliance monitor on their vessel, it does not necessarily follow that this would be the case because the power is expressly but narrowly granted elsewhere in the statute.  On the contrary, relative to total silence, granting of a power to an agency elsewhere in a statute administered by an agency might, in theory, go towards supporting a presumption (depending on the statutory text and any other relevant and applicable factors and circumstances) that Congress implicitly authorized the agency to exercise the power in other similar programs administered by the agency.  

Ultimately, the Loper case seems most amenable to a case-specific application of Chevron rather than to the establishment of a generally applicable rule about how Chevron should be applied.[11]  The Court, however, declined to grant certiorari on that former question[12] (i.e., the question of “[w]hether, under a proper application of Chevron, the [statute at issue] implicitly grants NMFS the power to force domestic vessels to pay the salaries of the monitors they must carry”) which is unfortunate because a case-specific application of Chevron by the Court to the Loper case may have established precedent helpful to lower courts’ application of Chevron.

That all being said, ultimately the more consequential question presented to and accepted by the Court, and the question the Justices granting certiorari may be more interested in tackling, is “[w]hether the Court should overrule Chevron”.[13]

Tyler Scandalios is an attorney at the law firm of Arnold & Porter, and previously served as a regulatory counsel at the U.S. Food and Drug Administration.  The views and opinions expressed herein do not necessarily reflect those of Arnold & Porter, Arnold & Porter’s clients, or the U.S. Food and Drug Administration. 

[1] Loper Petition for Writ of Certiorari (Nov. 10, 2022) at pp. i-ii.  The full question presented (and it is one of two questions presented) is “Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”

[2] Chevron at 844.

[3] Id.

[4] Chevron at 845.

[5] Chevron at 837.

[6] Mead at 231.

[7] West Virginia v. EPA at 2609.

[8] For example, the Congressional Research Service (“CRS”) lists MCI Telecommunications Corp. v. American Telephone & Telegraph Co. as the first major questions doctrine case in a November 2022 CRS report discussing the major questions doctrine. 

[9] MCI Telecommunications Corp., 512 U.S. at 229.

[10] Id. at 231.

[11] Notably, the Loper petition for a writ of certiorari also asks the Court to potentially distinguish between “controversial” and non-controversial powers, which seems like distinction that would be difficult to delineate as a generally applicable rule–and which may, so to speak, unnecessarily open up a whole new can of worms.

[12] See Loper Grant of Certiorari (May 1, 2023).

[13] This author’s personal opinion is that Chevron should not be overruled.  For readers who are interested, please see Tyler Scandalios, “In Defense of Chevron Deference,”, Feb. 2019 (self-published). 

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