Jason Velligan

Associate Editor

Loyola University School of Law, JD 2024

Regulatory and legal professionals who understand and work to influence government agency rulemaking are most likely familiar with  the Chevron deference. The statute gives an agency the authority or power to engage in rulemaking by issuing regulations. Rule and regulation are often used interchangeably when discussing agency rulemaking. Regulations carry the force of law by mandating compliance under threat of penalties such as fines and, in some instances, imprisonment. Government agencies must determine how to execute their mission within a reasonable interpretation of the statutory framework. The agency is the expert and best positioned to interpret a statutory provision’s ambiguity. When a statute is silent on a provision, the courts give deference to the agency’s reasonable interpretation of the statute. However, the United States Supreme Court could change this dynamic when it decides whether the Court should overrule Chevron in, Loper Bright Enterprises v. Raimondo, this term.

Chevron deference

In Chevron v. NRDC, 1984, the Regan administration defended its position asserting its interpretation of an environmental statute was reasonable. Chevron deference presents a judicial doctrine wherein courts defer to reasonable agency interpretations of ambiguous statutes. The agency was to “fill any gap left, implicitly or explicitly, by Congress.” A court undergoes two steps in a Chevron analysis of a challenged regulation. First, it assumes that the legislative purpose is expressed through the ordinary meaning of the statutory language; second, it assesses whether the agency’s interpretation is reasonable. When an agency supplies a permissible interpretation of a statute, courts are not permitted to substitute their own interpretation.  In City of Arlington v. FCC, (2013) Justice Scalia in referring to Chevron, noted that “where Congress has established a clear line, the agency cannot go beyond it; and where Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow.”

Loper Bright Enterprises v. Raimondo

For many years, a shift and hostility toward Chevron emerged on the Supreme Court. In the 2023-2024 Supreme Court term, the court will hear arguments and decide whether Chevron should be overruled. The group squaring off against the government in Loper, consists of family-owned corporations that own boats that fish for Herring in the Atlantic. The fisheries contend that the National Marine Fisheries Service (NMFS) lacks the statutory authority to charge the regulated party for the cost of covering a federal observer to monitor their herring catches. The fisheries claim that Chevron should not apply and should be overruled. Conversely, the government contends that Chevron gives appropriate weight to the expertise, often scientific or technical, that federal agencies bring to bear in interpreting federal statutes, thereby granting them the power to promulgate regulations requiring herring fishing boats to pay the salaries of government-mandated observers.

Overturning Chevron v. NRDC

In 1984, the Reagan administration saw Chevron as a victory. Both Republican and Democratic presidential administrations have used Chevron to achieve their agendas since. For many years, Chevron has allowed the Executive Branch leeway as to how they interpret the statute and administrate an agency or promulgate regulations. Although Congress could have overruled Chevron by statute within the last forty years, it has not done so. Chevron has been cited over 40,000 times by the federal courts. Nonetheless, Justices on the current Supreme Court are hostile toward Chevron despite the late Justice Antonin Scalia’s support for the decision. Overruling a 40-year-old Supreme Court precedent will present issues, some not yet contemplated.

Congress typically drafts legislation broadly and allows agencies to decide on the technical or granular details of policy implementation. Annually, the Federal Register publishes anywhere from 3,000 to 4,500 final rules. All agencies within the federal government would have to review their final regulations to identify those involving statutory interpretation to confirm the agency had the authority to issue the regulation. Thousands of federal district court decisions also relied on Chevron, and overruling it in 2024 could lead to agencies litigating long-settled issues. How will agencies operate if Chevron is overruled? Is a judge in a better position to determine how to administrate or promulgate regulations for the Nuclear Regulatory Commission when an energy company disagrees with a regulation and it is challenged in court? Overruling Chevron would have consequences for the agencies, judiciary, and those that have contact with the agencies.