A recent U.S. Supreme Court decision could have important implications for fisheries in Alaska.
Last month, the Supreme Court overturned a legal principle called Chevron deference, named after the case that established it. For 40 years, that principle gave federal agencies wide authority to interpret the gray area in laws passed by Congress. Now, more of that authority will go to judges.
The decision came after a legal battle over who should pay for bycatch monitors on trawl boats. The potential effects extend to all federally regulated industries — including fisheries.
Many trawl boats are required to have bycatch observers onboard. And in Alaska, the North Pacific Fisheries Management Council can have trawl boats pay for those observers. That’s the law. It’s spelled out in the Magnuson-Stevens Act, which governs commercial fishing.
But that act is not clear on who should pay for bycatch observers elsewhere. In the Atlantic, a federal agency created a similar funding program and a trawling business sued.
“And so (the National Marine Fisheries Service) used its agency authority to interpret the statute and fill in the gap and say, ‘Well, you know, we’re going to do what we do in the North Pacific region here in the Atlantic region.’ And the court said, ‘Nope, you can’t do that,’” said Anna Crary, an environmental lawyer at the firm Landye Bennett Blumstein LLP in Anchorage. She’s been watching that court case.
That Supreme Court decision, in a case known as Loper Bright, was a reversal of policy the Court formed in a 1984 environmental lawsuit called Chevron vs. Natural Resources Defense Council.
That doctrine said that when federal laws are vague, federal agencies should fill in the gaps, and courts should defer to the expertise of those agencies. Crary said that understanding of agency power has become a baseline assumption.
“Administrative law, unbeknownst to many people, really forms the backbone of what we perceive as our everyday life, as modern society. But the extent to which this decision destabilizes that, I think is quite profound,” Crary said.
Now, legal analysts say it will be easier to challenge federal agency decisions — and to win. Crary said that challenges could play out in the agencies that set safety standards for everything from drugs to airplanes. It could also make regulations by the North Pacific Fisheries Management Council or the National Marine Fisheries Service easier to challenge.
Crary is also watching for challenges to decisions by the Federal Subsistence Board, which carries out subsistence fishing rules under ANILCA. And, she thinks the ruling could give a boost to lawsuits that challenge the very existence of that board, since it was created by agency regulation and not by law.
“It’s not just the time, place and manner regulations, but it’s the actual regulations creating the Federal Subsistence Board itself. I think we will probably see a challenge to those regulations that follows the blueprint of what the Supreme Court laid out here in Loper Bright,” Crary said.
Crary said the impact of losing Chevron deference will depend on the context.
“Chevron was, you could use it as a sword, you could use it as a shield,” Crary said.
In Alaska, questions about how much power federal agencies have are important for all sorts of projects that could impact salmon habitat. Siobhan McIntire is a lawyer at Trustees for Alaska, whose work includes lawsuits opposing Pebble Mine, which many Bristol Bay fishermen see as a threat to salmon.
“If we’re, for example, in a plaintiff’s posture and holding agencies accountable, the overturning of deference to agencies could be positive for our clients. On the other hand, if we’re in defensive posture, seeking to uphold an agency action, then the opposite could be true,” McIntire said.
McIntire said it’s too soon to say what impact last month’s Supreme Court ruling will have on Pebble Mine or in other lawsuits.
“This decision really cuts both ways, and we can’t project into the future as to what that will look like from here,” McIntire said.
Under the Dunleavy administration, the State of Alaska has been fighting a number of federal agency decisions, including a decision by the Environmental Protection Agency to block Pebble Mine.
Commissioner John Boyle, a Dunleavy appointee, leads the Alaska Department of Natural Resources. He said staff are starting to look at what the ruling could mean for a variety of legal challenges.
“We can really look at that in the context of looking at environmental laws that have been passed, the Endangered Species Protection Act, the Clean Water Act, the Clean Air Act, etc. The onus is really now on Congress to be more specific in what they want the agencies to do,” Boyle said.
Boyle said Loper Bright might reinvigorate the state’s effort to limit which streams and lakes are subject to federal wetland protection under the Clean Water Act. That’s the law that the EPA used to block Pebble Mine.
“What may or may not constitute a water of the United States becomes a very big deal again, because it can be the difference between being able to see a successful development project move forward or not. So the state has been very interested to better define and narrowly tailor what constitutes a water of the United States to remove as much federal entanglement as we possibly can,” Boyle said.
The Loper Bright decision will also require judges to decide more highly specific and technical questions. Boyle said maybe that’s a good thing.
“So it will cause uncertainty, there’s no question about it. And I’m sure there’s going to be all kinds of new litigation and all kinds of new case law that’s going to feed into to what extent does a court defer to a federal agency but I don’t think reining in the powers of federal agencies in particular is necessarily a bad thing at this juncture,” Boyle said.
Loper Bright is not the only recent Supreme Court case to limit federal agency power. In 2022, West Virginia v. Environmental Protection Agency also limited how agencies could interpret laws in a way that echoes the reversal of Chevron deference. Another ruling this summer, Corner Post v. Federal Reserve, makes it possible to challenge federal agency decisions for longer. Both of those rulings may also impact fisheries.
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