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  • Jiun Park

From Cape Bay to the U.S. Capitol

How a New Jersey fishing-company may decide the fate of Environmentalism in America

A deployed fishing boat in Cape Bay

Just off the coast of a small town in New Jersey sits a family-owned fishing company– Loper Bright Enterprises. Earlier this year, the National Marine Fishery Services (NMFS) issued a provision requiring fishing monitors to oversee all deployed ships, as an attempt to deter overfishing. However, with the NMFS’ tight finances, they decreed all expenses –wages and materials for monitors– must be paid out-of-pocket, failing to provide funding for the new provision. As a result, this provision would have Loper Bright shoulder significant financial burdens, slashing their profits by approximately 20% each year. With this looming burden over the company, Loper Bright Enterprises pushed back. Fighting dispute after dispute, Loper throttled their case from Cape Bay, New Jersey to Washington. Now, Loper poses the first real threat to diminish the powers of environmental federal agencies on the hill. Will the family-owned fishing company be successful in creating a historical shift in the future of environmentalism in America?

As the Supreme Court prepares to present the case in January this upcoming year, questions surrounding the validity of a single judicial precedent, The Chevron Deference, are being proposed. Formed as a result of the 1984 Supreme Court case, Chevron v. Natural Resources Defense Council, the Chevron Deference entrusts federal agencies with the authority of molding congressional legislation.

Chevron v. Natural Resources Defense Council rests on one key piece of environmental legislation: the Clean Air Act. Passed in 1963, the Clean Air Act delegated authorities to the EPA to oversee the regulation of industrial “sources” of air pollution, defined as any single unit of machinery within a factory or plant that produces emissions. However, in the 1970s, this language was amended to apply stricter review practices– “sources” now alluding to the entire plant or factory itself, instead of the individual machinery. Although a generalization is necessary to simplify the implementation of the EPA’s stricter review, interest groups –such as the Natural Resources Defense Council (NRDC)– pointed out the potential consequences of the amendment. For example, if they continued to keep their emissions below their cap, companies could now add new air-polluting equipment without undergoing the EPA’s review process. With this loophole, the NRDC argued that the amendment would create challenges in lowering existing carbon emission levels to greener standards, thus failing to uphold the initial purpose of the Clean Air Act. As a result, the NRDC took them to court. However, now facing the possibility of even stricter regulations, companies pushed back against the NRDC, with Chevron Corporations bringing the case all the way to the Supreme Court.

Ultimately, in a 6-0 verdict, the Supreme Court ruled in favor of the EPA’s 1970 definition of “sources” upon the basis that the EPA had the authority to define ambiguous language within congressional bills. As a result, this case further legitimized federal agencies’ expertise around their policy issues, insulating them from external influences and growing their independence.

Encapsulating these notions, the judicial precedent of the Chevron Deference was birthed. In sum, this doctrine gives federal experts the right to mold a piece of legislation when its vagueness hinders the bill’s ability to carry out its intended regulations effectively, as long as this input is deemed “reasonable” by the courts.

In Loper Bright’s case, the NMFS argues their new fishing regulations are supported on the basis of the Chevron Doctrine, whereas Loper argues that they are not supported. Loper persists that Chevron itself is an invalid source of federal authority, putting the legitimacy of the doctrine into question. Now, it is in the hands of the Supreme Court to decide whether the Chevron Doctrine should remain posing huge implications to environmental regulation under the EPA.

For the past 40 years, various agencies have effectively used the broad authorities under Chevron to support their resolutions to various bills. It was through the doctrine that tighter controls on business practices, food and drug administration, and –most importantly– environmental issues were feasible for progressives. Passing resolutions capping carbon emissions in power plants and transitioning the production of vehicle companies to hybrid and electric cars, this judicial precedent allowed for environmentalists to implement milestone regulations targeting crucial environmental causes that would otherwise face longer wait times or be blocked in Congress.

Portraits of Chief Justice John Roberts, Associate Justices Clarence Thomas, Samuel Alito, Associate Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett

While progressive supporters of Chevron have relished in its accomplishments, conservative opposition has only grown in magnitude. One argument is that expanding federal bureaucracy increases government insulation, elitism, and decreases the democratic principles of a citizen government. With Chevron encouraging the expansion of the federal bureaucracy by delegating increased authorities to agencies, opponents of the large federal government can be combative to the doctrine in attempts to limit this trend. However, it is important to note the necessity of a structured federal bureaucracy in providing guidance in implementing congressional bills through their expertise over the subject matter. Thus, Chevron’s expansion of federal agencies can rather be interpreted as providing experts enough jurisdiction over policy to effectively implement and uphold the initial legislative goals of congressional bills.

Another argument claims Chevron was an unconstitutional ruling from the beginning. Many insist the doctrine allows federal agencies to overstep their constitutional authority –restricted to solely overseeing the implementation of laws– by interpreting and thus changing laws as they please. However, opposers to this view bring up valid counters. They highlight that agencies truly acting under Chevron do not pose interpretations outside the scope of federal legislation, but rather policy clarifications under the defined limitations of the congressional bills. Thus, Chevron, again, can be seen delegating enough authority to agencies to ensure the effective implementation of bills to carry out its initial policy goals.

However, the overturning of Chevron is more imminent than ever, considering the current supreme court majority reiterates these same strict constitutional interpretations. Justice Clarence Thomas and Associate Justice Neil Gorsuch –two out of the nine judiciaries serving on the Supreme Court– have outwardly condemned Chevron, utilizing the constitutionality argument. Further, the supreme court has showcased their plans on limiting federal agencies, especially in relation to the EPA. Two court hearingsSackett v. EPA and West Virginia v. EPA– have limited the scope of the Clean Water Act under EPA jurisdiction. These verdicts nod to a potential trend in decreasing the powers of federal agencies, thus limiting their regulatory authorities and the effectiveness of environmental legislation.

Now, with the debates of Loper falling into the jurisdiction of the conservative court, the Chevron doctrine is met with tangible threats of being overturned, posing huge implications for environmental regulation in America.

So, what could the future of environmentalism look like?

In a court without Chevron, the balance of powers on the hill would effectively be tipped in favor of the judiciary, diminishing executive influences. For example, the EPA’s regulatory powers may undergo intense cutbacks, which could render some environmental regulations virtually powerless. At the same time, the overturn would hand the primary responsibility of handling disputes over ambiguous language in congressional bills away from the expert to the courts, ultimately creating inefficiency in processing these disagreements.

As Andrew Mergen, director of Harvard Law School’s Emmett Environmental Law and Policy Clinic, states, “judges are busy, busy people and the [Chevron] doctrine allows them to focus on [only] one aspect of the rulemaking: whether it's reasonable. And if you get rid of the doctrine, then you're asking them to… start from first principles in terms of mastering the expertise”.By delegating this responsibility to the courts, court justices may inevitably find themselves overwhelmed by the sheer number of bills they are required to oversee and acquire new expertise in. Thus, not only can the overturning of Chevron diminish the power of regulations by taking away authorities directly from federal agencies, but can also slow down the implementation of environmental policies because of the egregious amount of time it now would take to process any legal disputes within congressional bills.

With the consequences of climate change –such as rising temperatures, food and water shortages, and increased health adversities– exponentially climbing to an all-time high, environmental regulation has never been more crucial. By effectively wiping federal agencies’ authority of regulation, huge barriers to environmental reforms would ensue when we need it the most. Thus, the case of Loper Bright Enterprises now poses dramatic limitations on the future of environmentalism in America.


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