Chevron in Memoriam: Regulating in a "Post-Deference World"

• Pages: 10-11
• Date: 01 April 2025
• Published date: 01 April 2025
• Author: C. Michael Judd
• Subject Matter: Civil Law

Chevron in Memoriam: Regulating in a “Post-

Deference World”

or four decades, courts

tasked with applying fed-

eral statutes have applied

“Chevron deference” by

deferring to interpretations oered

by federal agencies. That long-

f‌ixed approach made Loper Bright

Enterprises v. Raimondo among the

most anticipated cases in the U.S.

Supreme Court’s 2023 term, as many

court watchers believed the Loper

Bright opinion would put an end to

Chevron deference.

It did. In a 6–3 decision, the Court

overruled Chevron, calling the deci-

sion “fundamentally misguided.” The

dissent, noting that lower courts “have

applied the Chevron framework on

thousands upon thousands of occa-

sions,” warned that agency interpre-

tations that were “never challenged

under Chevron now will be.”

It may be time to ask whether either

set of Loper Bright predictions has

proven right. Has overruling Chevron

eliminated “unwarranted instability in

the law,” as the majority suggested? Or

has it done the opposite, by allowing

“expectations formed around [earlier]

constructions” to be upset?

ABA Litigation Section leaders say

that even one year in, it remains too

soon to tell. And because agencies and

courts will make their own post-Chev-

ron adjustments, we may never be able

to def‌initively measure the full eect of

Loper Bright. But a few takeaways are

already clear. Forum always mattered,

and now it matters more. And with

Chevron gone, thoughtful practitioners

are scrambling to identify a “new mode

of deference” that may take Chevron’s

place.

A Fish Fight Spawn s a Direct

Challenge to Chevron

In 1976, Congress passed the Magnuson–

Stevens Fishery Conservation and

Management Act (MSA), a law intended

to promote “sound management of

f‌ishing resources.” Under delegated

authority, the National Marine Fisheries

BY C. MICHAE L JUDD, LITIGATION NEWS ASSOCIATE EDITOR

Service (NMFS) promulgates “f‌ishery

management plans” that contain rules

intended to prevent overf‌ishing. Among

those rules is a requirement that f‌ishing

vessels carry observers who gather data

meant to support conservation eorts.

That particular requirement poses

an important question: Who pays that

observer to accompany the vessel’s

crew? For nearly 40 years, NMFS “fully

funded the observer coverage” for New

England’s Atlantic herring f‌ishery. But

in 2013, plan amendments left open the

door that f‌ishermen may be required

“to pay for observers if federal funding

became unavailable.” Those payments

would cut prof‌its: by one estimate, pay-

ing an observer could slash “annual

returns to the vessel owner by up to 20

percent.”

A number of f‌ishermen–plain-

tis, including an entity called Loper

Bright Enterprises, challenged that

rule, arguing that the governing stat-

ute—the MSA—“does not authorize

NMFS to mandate that they pay for

observers.” But by the time their dis-

pute reached the U.S. Supreme Court,

those cases had grown into a heavier

swell. The Court granted certiorari on

a single question: The lower courts

used Chevron deference to grant sum-

mary judgment to the government. Was

Chevron itself due to be overruled or

clarif‌ied?

The Sun Sets on Chevron

Chevron’s demise had been widely

anticipated. Justice Scalia suggested

in 2015 that Chevron be “uprooted.”

That same year, Justice Thomas faulted

Chevron for causing “unconstitutional

delegations.” In 2018, Justice Kennedy

proposed that the Court “reconsider ...

the premises that underlie Chevron.”

And in 2019, Justice Gorsuch oered

the road map that Chief Justice Roberts

eventually followed in Loper Bright,

questioning whether Chevron “comports

with the APA and the Constitution.”

It shocked no one, then, when

Chief Justice Roberts, writing for the

conservative majority, announced

that the Court had turned away from

Chevron for good. As the Court saw

it, the seeds of Chevron’s destruction

had been sown as early as Marbury v.

Madison, when “Chief Justice Marshall

famously declared that ‘[i]t is emphati-

cally the province and duty of the

judicial department to say what the

law is.’” When Congress passed the

Administrative Procedures Act (APA)

in 1946, then, it was only codifying “the

unremarkable, yet elemental proposi-

tion ref‌lected by judicial practice dat-

ing back to Marbury: that courts decide

legal questions by applying their own

judgment.” Even the pull of stare deci-

sis was not enough to save Chevron: in

the majority’s view, poor legal reason-

ing, an unworkable set of rules, and

patchwork reliance on Chevron “all

weigh in favor of letting Chevron go.”

When it came to predicting the

eect of that holding, the majority and

the dissent were diametrically opposed.

With Chevron gone, the major-

ity insisted, the law would no longer

“change erratically,” but would instead

“develop in a principled and intelli-

gible fashion.” Justice Kagan, writing

for the dissent, envisioned the oppo-

site: overruling Chevron would increase

“partisanship in decisionmaking” and

increase case-by-case inconsistency.

Loper Bright, Six Months In

Even in heavily regulated industries—

industries touched by environmental

or f‌inancial regulations, for example—it

is hard to tell whether Loper Bright

will make landfall as a ripple or a tsu-

nami. “The truth is, there’s potential

for Loper Bright to be signif‌icant, if

not monumental. But to date, in prac-

tice, we’ve seen very little that bears

that out,” says Sarah Peterman Bell,

San Francisco, CA, Co-Chair of the

Litigation Section’s Environmental &

Energy Litigation Committee. “Will we

see impacts? One hundred percent. But

do we have a clear sense of what those

impacts are? No,” she says.

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