Nebraska, South Dakota, Iowa join fight against legal doctrine on federal regulatory authority

LINCOLN — Nebraska Attorney General Mike Hilgers recently joined counterparts in 26 other states in urging the U.S. Supreme Court to overturn or clarify a legal precedent that could have major implications for federal regulatory authority.

Nebraska, South Dakota and Iowa are among the 27 states that joined a July 24 filing to the Supreme Court regarding the deference that should be afforded to federal agencies when interpreting ambiguous or silent language passed by Congress. Known as the Chevron deference, the legal doctrine requires courts to defer to reasonable agency interpretation when regulatory authority is ambiguous.

The joint brief argues that Chevron has been “abused and manipulated,” allowing federal agencies to “run amok,” and contends the court should overrule or at least clarify Chevron when it decides Loper Bright Enterprises v. Raimondo (named after Secretary of Commerce Gina Raimondo), in its next term. Justice Ketanji Brown Jackson recused herself from the case.

The case deals with the National Marine Fisheries Service and a regulation that requires fishing companies to have an additional person on fishing boats to track regulatory compliance. Companies must pay the monitor’s salary.

Hilgers, in a July 25 statement, said the U.S. Constitution lays out three branches of government, not four, and leaves legislative power to elected representatives, “not unelected and unaccountable bureaucrats.”

“Overturning Chevron is a critical step to restoring the Constitution’s protection against the unaccountable use of power and will help save Nebraskans from an endless number of regulations and burdens,” Hilgers said.

Former Nebraska Attorney General Doug Peterson was among 18 state attorneys general last December asking the high court to review the Loper Bright case.

Changes could ‘hamstring agencies’

Eric Berger, Earl Dunlap Distinguished Professor of Law at the University of Nebraska College of Law, said the Chevron doctrine is a two-part test:

• First, is the statute clear? If so, the agency is obliged to follow the statutory language.
• Second, if the statute is ambiguous, did the agency reasonably interpret the language for the rule or regulation at issue? If so, the court defers to an agency’s interpretation.

Berger said statutes can be ambiguous for multiple reasons, such as when congressional leaders lack subject matter expertise in drafting laws or disagreeing on policy, so legislation becomes a work of compromise that is not always “crystal clear.”

Sometimes, Berger added, Congress knows future problems will arise but does not know what they will look like, so officials offer broad authority and allow agencies to respond as they see fit.

Berger added that Chevron-adjacent cases regularly come up at the Supreme Court, and even more so at lower federal courts, though a change to Chevron could “hamstring agencies.”

“The Supreme Court can’t be everywhere at once,” Berger said. “But it would be a strong signal that agencies are not to get the kind of deference that they’re used to in statutory interpretation.”

Doctrine benefits Republicans and Democrats

Some view Chevron as a liberal decision that helps progressives, Berger said, as they tend to believe more in regulation nowadays as a solution to societal problems. However, both Republican and Democratic administrations have used Chevron to their benefit.

For example, Chevron takes its name from the 1984 decision in Chevron v. Natural Resources Defense Council, where the court ruled in favor of an EPA policy during the Reagan administration.

That EPA regulation interpreted a definition in the Clean Air Act so a group of industrial, pollution-emitting devices in a “bubble” counted together as a “major stationary source” rather than individually. The court ruled the definition was reasonable.

Berger said enough of the Supreme Court’s conservative justices have voiced displeasure with Chevron, and the court has signaled it is far more skeptical of the administrative state “really than any Supreme Court has been since the mid-1930s.”

“I would be surprised if they kept it [Chevron] exactly the same,” Berger said. “But exactly how aggressive they are in displacing it, I think it’s hard to predict.”