The Supreme Court Threw Us—And the Chevron Deference—Overboard with Its Fish Ruling
A case about Atlantic herring has resulted in SCOTUS ending a 40-year policy to defer to expert agencies when considering regulations. The effects will likely be felt far beyond fishing
Fresh-caught herring on ice in Portland, Maine.
Susanne Friedrich/Getty Images
The Supreme Court’s decision to end a legal doctrine called Chevron deference was never just about fish—even though, on the surface, the case was about the design of a government program to track the number of fish caught on vessels targeting Atlantic herring.
The Court skipped the fish questions entirely. Instead the 6-3 majority dismantled a 40-year precedent of deferring to science and expertise in interpreting laws intended to protect human health, keep consumers safe and preserve the planet. As a fisheries expert at Ocean Conservancy, I foresee a bleak future of lawsuits that could challenge regulations based on scientific evidence, such as rules about limiting air pollution for lung health, ensuring the safety and efficacy of drug trials, keeping food free of contaminants, and more.
The recent ruling overturned a 1984 Supreme Court case called Chevron v. Natural Resources Defense Council, which established the relationship between the courts, Congress and federal agencies when it came to specific questions of implementing laws that involved technical and scientific expertise. For example, if Congress passed a law that allowed the Environmental Protection Agency or the Food and Drug Administration to set limits on toxins as a broad category, people at those agencies would then use scientific evidence and expertise to determine which toxins should be limited, what the limits should be and what procedures would be best to monitor the toxins, among other things. If an entity challenged those regulations in court, owing to Chevron deference, judges would “defer” to the relevant agency’s reasonable interpretation of the law, allowing it to set those regulations. The benefits were twofold: Congress could leave some ambiguity when it drafted a given law and not get bogged down with every tiny detail. And agencies could adapt to meet new threats, challenges and opportunities that would fall under that law.
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Without Chevron deference, the door is wide open for legal challenges to the clean air and water regulations that erased the nightmares of the past—rivers on fire, waste in unmanaged piles, cancer clusters, and more. Different judges will most likely make different decisions across the U.S., creating a patchwork of loopholes and rollbacks. The courts will no longer defer to experts. Industry-funded studies that appeal to a particular judge might influence their decisions more than the years and decades of research showing why well-regulated systems serve the greater good. Faced with the possibility of endless lawsuits, federal agencies could cease to take on the critical challenges of the present day, such as reducing greenhouse gas emissions to give us a livable future, tackling the challenges of microplastics polluting our ocean and our body or even keeping us safe from the next pandemic.
The inspiring recovery of many fish populations in the ocean is a testament to the benefits of relying on experts in public agencies to develop environmental protections for people and ecosystems. Just a few decades ago major fisheries on the East and West Coasts collapsed because of overfishing. The National Marine Fisheries Service (NMFS), an office within the National Oceanic and Atmospheric Administration, develops and implements regulations in collaboration with fishing communities to count catches, prevent overfishing and rebuild depleted fish populations. For example, agency scientists use data on catches to assess the health of fish stocks and set annual limits on catch that prevent overfishing. While climate change threatens this progress, overfishing is now at an all-time low, and 50 stocks have been rebuilt since 2020. It’s well established that, in pursuit of its task from Congress to sustainably manage fish stocks, NMFS has the authority to collect data and monitor compliance with science-based limits to help prevent overfishing. That’s what the agency was trying to do in the Atlantic herring fishery, which is just one of more than 500 fish stocks managed in the U.S. Each of these stocks needs its own science-based limits and data programs.
Management of fisheries using science-based limits is proven to work, and we need data programs like the one designed for the Atlantic herring fishery to keep catch levels below overfishing limits and to reduce the effect of fishing on other species that may be caught at the same time. Repeatedly, the thing that brought success in fishery management was using science and expertise as the framework to maximize catch while minimizing harmful effects.
This was until law firms backed by special interests used the New England Atlantic herring as a Trojan horse to strike down Chevron deference.
In fisheries, the effects of this could be far-reaching. While these specific herring cases have been sent back to the lower courts for consideration, science-based expert decisions are the foundation of our fishery management system and are now at greater risk of litigation at all levels. From catch limits and protections for turtles, seabirds and marine mammals to rules for preventing habitat damage, and more—our system relies on experts applying the law to specific situations. And right now, with climate change stressing ocean ecosystems, we need to be acting to build resilience for fish populations by setting climate-informed catch levels, restoring habitats and supporting fishing community adaptation. We shouldn’t want our members of Congress to have to think about the fluctuating sea-surface temperature of every estuary and the impact that has on the fish that live there. These sorts of specific, nitty-gritty details are not well suited for congressional legislation or a judge’s decision. The 118th Congress has only enacted 66 new pieces of legislation. The Supreme Court hears less than 100 cases a year. Neither has the expertise nor the time to carefully craft the solutions our ocean needs.
What happens next? It’s widely expected that the courts will be flooded with lawsuits attacking the regulations that conserve our environment and protect people’s health and safety.
The conservation of fish—for the good of the ocean and for people worldwide—is a cause I care deeply about. My heart goes out to the people who have spent their entire careers in public service, working to bring the latest science and their technical expertise to make the world cleaner, safer and fairer. The Supreme Court has just told them that their work no longer matters. Instead judges—the branch of our government that is least accountable to the people—will now decide what is safe for all of us.
This is an opinion and analysis article, and the views expressed by the author or authors are not necessarily those of Scientific American.
