Chevron deference is squarely in the U.S. Supreme Court’s crosshairs. The Court has had on its October docket an appeal in Loper Bright Enterprises v. Raimondo, which challenges the long-standing doctrine. First established by the Court in the 1984 Chevron v. NRDC case, the doctrine imposes a two-part test when courts determine whether to defer to an agency’s interpretation of a statute that it administers.  First, lower courts determine whether the statute clearly addresses the question at issue, in which case no deference is afforded to the agency’s interpretation.  If the statute is ambiguous, however, Chevron then instructs lower courts to defer to the agency’s reasonable construction of the statute.

Loper Bright involves the National Marine Fisheries’ interpretation of the Magnuson-Stevens Fishery Conservation and Management Act of 1976 to require commercial fishermen to fund at-sea monitoring programs and a challenge to the agency’s interpretation of the Act as it applies to the fishing companies. The case also squarely frames the question of whether the Court should overrule or clarify Chevron deference.  Because Justice Ketanji Brown Jackson heard arguments in Loper Bright while on the D.C. Circuit, the Court’s newest member recused herself from the appeal.

Likely in order to avoid the risk of a 4-4 tie in what could be a landmark ruling on Chevron deference, on October 13 the Court granted a petition to review Relentless Inc. v. Department of Commerce. The appeal, brought by Seafreeze Fleet LLC, involves a challenge to a similar rule under the National Oceanic and Atmospheric Administration requiring vessel operators to pay for federal observers on their ships. The Seafreeze appeal poses an identical question as to whether the Court should overrule or clarify Chevron.  The Court’s grant of certiorari will allow Justice Jackson to participate in arguments and weigh in on a case that could have substantial implications for administrative law.

A special briefing schedule will allow both cases to be heard in the January 2024 session.