TheCorporateCounsel.net

Yesterday, the Supreme Court announced that it would hear an appeal in the case of Loper Bright Enterprises v. Raimondo, which involves a direct challenge to the Chevron doctrine. This case will be considered by the Court in the next term. The outcome of the case could have a significant impact on SEC rulemaking efforts.

As I discussed in the blog last year, in 1984 the Supreme Court decided Chevron v. Natural Resources Defense Council, which created the doctrine that courts normally must defer to a government agency’s reasonable interpretation of a law that it administers when that law’s language is ambiguous. The SEC has argued that Chevron deference should be accorded to its actions over the years, often to the agency’s advantage.

The Chevron doctrine has been viewed as vulnerable since the Supreme Court’s decision last year in in West Virginia v. Environmental Protection Agency, in which the Court considered the “major questions doctrine,” a presumption that when an administrative agency asserts authority over questions of great economic and political significance, it may act only if Congress has clearly authorized it to do so.

In Loper Bright Enterprises v. Raimondo, the relevant question that the Supreme Court agreed to hear is “[w]hether 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.”

The case involves a herring fishing company named Loper Bright Enterprises, which is appealing a ruling that left in effect a National Marine Fisheries Service regulation based on the Chevron doctrine. That regulation requires herring fishing boats to allow a federal observer aboard to oversee operations and to compensate them for their time. Loper Bright Enterprises argues that the regulation significantly impacts its business and that the agency did not have the authority to impose the regulation.

– Dave Lynn