Katherine B. Savage, Esq. Hinckley Allen Providence
"This suggests that Rhode Island's independent body of law developed before Chevron was decided and that Rhode Island has never adopted Chevron into that body of law."
On June 28, 2024, the United States Supreme Court overruled its holding in Chevron U.S.A, v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) in a 6-2 decision. For 40 years, Chevron stood for the proposition that, where Congress has delegated power to an agency through statute, but the statute itself is silent or ambiguous with respect to a specific issue, reviewing courts should defer to the agency's statutory interpretation so long as it is based on a permissible construction of that statute.[1] In the consolidated cases of Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Dep't of Commerce ("Loper Bright"), the Court held that the Administrative Procedures Act, 5 U.S.C. § 551 et seq. (the "federal APA"), prohibits courts from deferring to agency interpretations on any question of law. It found that "Chevron defies the APA's command that the reviewing court—not the agency whose action it reviews—is to decide all relevant questions of law and interpret...statutory provisions."[2]
This article analyzes the Loper Bright decision and explains why it is unlikely to change the practice of administrative law in Rhode Island.
I. Loper Bright and Relentless
The Petitioners in both Loper Bright and Relentless challenged the National Marine Fisheries Service's ("NMFS") adoption of a new rule requiring certain vessels to pay for third-party observers to accompany them on fishing trips to collect data about the health of herring fisheries. Relying on Chevron, the federal district courts granted summary judgment in favor of the NMFS, finding that its interpretation of the statute was reasonable. On appeal, the D.C. and First Circuit Courts affirmed, finding that the statute was silent on the question of who should pay for the monitoring costs and noting that NMFS's interpretation was reasonable because, when an agency establishes regulatory requirements, regulated parties generally bear the costs of compliance.
The Supreme Court granted the petitions for certiorari, but expressly declined to hear arguments about the facts underlying these disputes. Instead, the Court asked the parties to brief a single question: "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!'[3]
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A. The Chevron Two-Step
In Chevron v. Natural Resources Defense Council, Inc., the United States Supreme Court articulated a two-step process for determining whether to uphold or reverse an agency's interpretation of its own statute. First, the court must determine whether Congress has directly and unambiguously spoken to the precise question at issue. If so, then "that is the end of the matter," and the agency as well as the court must give effect to the unambiguously expressed intent of Congress.[4] If not, however, then the Court must decide whether the agency's interpretation is based on a permissible construction of the statute. If it is, then the court must defer to the agency's interpretation because the decision as to the meaning or reach of the statute involves reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation depends upon specialized knowledge about the regulated subject matter.[5]
B. Majority Opinion
In Loper Bright, the Court overruled the "interpretive methodology" articulated in Chevron, but expressly preserved the holdings of all the cases that have already been decided using the Chevron two-step.
Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and. under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.[6]
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As indicated by the emphases, the Court's holding is based on its analysis of the specific language in the federal APA. Section 706(2)(A) of the federal APA states, in pertinent part:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The Court found that this provision codified the "unremarkable, yet elemental proposition" that "courts decide legal questions by applying their own judgment."[7]
To bolster its interpretation, the Court contrasted subsection (2)(A), cited above, against a later subsection (2)(E), which "mandate[s] that judicial review of agency policymaking and fact-finding be deferential."[8] According to the Court:
In a statute designed to 'serve as the fundamental charter of the administrative state,'...Congress surely would have articulated a similarly deferential standard applicable to questions of law had it intended to depart from the settled pre-APA understanding that deciding such questions was 'exclusively a judicial function.'[9]
The Court found that the "default" level of judicial review at the time the federal APA was enacted in 1946 was de novo review for questions of law and deferential for questions of fact. (The majority does not consider what standard of review applies to mixed questions of law and fact).
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"The financial support from the IOLTA grant program to the Rhode Island Bar Association's Pro Bono Project reinforces and strengthens the Bar's mission of extending and increasing access to justice for our neediest Rhode Islanders. With this support and the continued dedication and commitment of volunteer attorneys, many more of our lowest income individuals and families can have the opportunity to be fairly represented when facing a legal crisis."
— Susan Fontaine, public services director
The Court appears to be returning to Skidmore deference, noting that while judges may not defer to agency interpretations on question of law, they may consult agency interpretations as "a body of experience and informed judgment to which courts and litigants may properly resort for guidance.'"[10] Because judges can seek guidance from agency interpretations—which are premised on their unique knowledge as experts in the field—the majority argues that "delegating ultimate interpretive authority to agencies is simply not necessary to ensure that the resolution of statutory ambiguities is well informed by subject matter expertise."[11]
The majority also states that, if overturning Chevron is a mistake, then Congress and the Executive Branch "are of course always free to act by revising the statute."[12] That argument loses integrity when, a few pages later, the majority argues that there is no reason the Court must "wait helplessly for Congress to correct our mistake" in Chevron[13] Other than this one sentence, the Court does not acknowledge the arguments that Congress, by living with Chevron for over forty years, ratified its "interpretive mythology" and legislated against that backdrop.
On the issue of stare decisis, the Court found that Chevron "undermined the very 'rule of law' values that stare decisis exists to secure" while also preserving all prior holdings that relied on the Chevron framework. The Court justifies this double-speak by arguing that "[m]ere reliance on Chevron...is not enough to justify overruling a statutory precedent."[14]
Justices Thomas and Gorsuch wrote separate concurrences, both of which (1) focused on the issue of stare decisis and (2) argued that Chevron violated the separation of powers doctrine. There are two key takeaways from these concurrences. First, both justices would have made the Loper Bright decision a...
