How a Supreme Court case about herring fishermen could upend federal regulation, on land and sea

At a glance, the case before the U.S. Supreme Court Tuesday was about a federal rule requiring Atlantic herring fishermen to pay to have observers onboard. But the goal of the fishermen and their allies is far larger: to loosen federal regulation of all industries, coast to coast.

Fish were barely mentioned as lawyers and the justices debated the case, Relentless vs. Department of Commerce. The word they could hardly stop saying was the name of an oil company: Chevron.

“Chevron deference” is a standard the court established in a 1984 case, and overturning it is the true aim of the herring case. Chevron deference stands for the principle that if it’s not clear what Congress meant when it passed a particular law, judges should defer to the government agency’s view, as long as that view is reasonable.

The Chevron case is the backbone of modern federal regulation, whether it’s an agency enforcing an environmental restriction, an aviation rule or policing any of the other industries the feds regulate.

Attorney Roman Martinez, representing the Atlantic herring fishermen, said Chevron deference means legal challenges are always tilted to favor the government. He says it takes away the authority of a judge to decide who has the best interpretation of a law.

“I think deference becomes problematic when it requires a judge to say that ‘the law means X’ when really the judge thinks the law means Y,” he said.

Justice Neil Gorsuch seemed to be on the same page. He said it’s a question of who decides which interpretation of law is best. Should a judge decide, based on the strength of each side’s argument, Gorsuch asked.

“Or does the judge abdicate that responsibility and say, automatically, whatever the agency says wins?” he asked, rhetorically.

Justice Elena Kagan said that’s not how Chevron deference works. She said a judge uses all tools available to glean congressional intent —the letter of the law, the context, the legislative history — and if there’s still ambiguity, Kagan said it only makes sense for courts to defer to the agency because they’re subject-matter experts. She said agency personnel know the facts on the ground and, unlike judges, agencies are at least accountable to an elected president. Kagan wondered about the next frontier of court cases, like those about artificial intelligence.

“Will courts be able to decide these issues as to things they know nothing about?” she asked. “Courts that are completely disconnected from the policy process, from the political process? And you know, that just don’t have any expertise and experience in an area? Or are people in agencies going to do that? That’s what this case is about.”

Sitka-based fisherman Linda Behnken is director of the Alaska Longline Fishermen’s Association, which represents small-boat commercial harvesters of halibut and other federally regulated species. She said the fishermen she knows have their own gripes about the observer program, primarily that there should be relatively more scrutiny of large trawlers.

But Behnken’s emphasis is on sustainable fisheries, and she does not feel aligned with the Atlantic herring fishermen who brought the case to dump the Chevron doctrine.

“It sounds like there’s a pretty deliberate attempt to dismantle federal agencies and their authority to manage resources,” she said. “And yes, that causes me some concern.”

A roster of conservatives and anti-regulation advocates wrote “friend of the court” briefs arguing to end Chevron deference. They include the Goldwater Institute, Gun Owners of America, the vaping industry, and 18 states, including Alaska, through state Attorney General Treg Taylor.

Those who weighed in to support regulation include the American Cancer Society, the Environmental Defense Fund and a quartet of Democratic senators.

A decision in Relentless Inc vs. Department Commerce — and a companion case called Loper Bright Enterprises v. Raimondo — is expected by early July.