There’s a case before the Supreme Court that could significantly reduce the federal government’s power to interpret laws and issue regulations — including protections for the environment, wildlife and their habitats and how scientists work in a variety of fields.

Complicated and multi-faceted, it’s the kind of dispute that flies under the radar until the ramifications hit the general public. When choosing to follow a court case, most spend their time on ones with more interesting characters, like Lindsay Lohan or O.J. Simpson.

But unless you’re a huge fan of kippered herring, there’s really nothing sexy about Loper Bright Enterprises v. U.S. Secretary of Commerce Gina Raimondo or the related Relentless, Inc. v. U.S. Department of Commerce. The suits, brought by a group of New England fishing companies, will be covered in stuffy law reports rather than gossipy tabloids.

However, if the fishermen and their allies are successful in overturning a 40-year-old precedent known as the “Chevron doctrine,” it could eventually have a direct impact on the lives of Wyomingites. 

The pending cases are part of the debate over the proper role of the “administrative state.” A victory for Loper Bright Enterprises would make it easier for corporations, non-governmental organizations and individuals to challenge the rules issued by federal agencies — potentially influencing everything from the management of grizzly bears and wolves to the regulations placed on oil and gas developers.

Doing the two-step

The Chevron doctrine draws its name from a 1984 decision, in which the Natural Resources Defense Council (NRDC) and other environmental groups challenged the Environmental Protection Agency’s (EPA) decision to relax some regulations related to air pollution. While the rules from President Ronald Reagan’s administration benefited American energy companies like Chevron, the NRDC charged that they deviated from the Clean Air Act. 

The Supreme Court, however, unanimously upheld the EPA rules, ruling that the judicial branch should generally defer to executive branch agencies.

“Judges are not experts in the field,” Justice John Paul Stevens wrote in part.

The high court established a two-part test for evaluating challenges to federal regulations. In essence, it says that if the law underpinning the regulations is “ambiguous” and the agency’s interpretation of the law is “reasonable,” then the courts should leave the regulation alone.

It’s given presidential administrations considerable leeway.

For example, a president might decide to prioritize protections for sage grouse and make mineral leases more difficult to obtain. However, if the next administration wants to “drill baby, drill,” they might push agency experts to interpret the Endangered Species Act in a way that allows for changes in their favor. 

This constant change of course and lack of consistency can create problems for both protected species and energy extraction industries.

During January’s oral arguments in Loper Bright, Justice Brett Kavanaugh said Chevron deference “ushers in shocks to the system every four or eight years whenever a new administration comes in.”

Red (tape) herring

The pending cases before the Supreme Court are being brought by a half-dozen companies that fish for herring just off the Jersey shores.

They’re specifically challenging a National Marine Fisheries Service requirement that those working in the Atlantic fishery host and pay for a federal representative on roughly half their trips to sea.

The on-board observer ensures fishing vessels comply with rules meant to prevent overfishing. However, the companies’ attorneys say reserving space for the additional person is “an enormous imposition,” and “making the fishing vessels foot the bill for that imposition adds insult to injury.”

On many trips, the federally mandated observers are the highest paid person on the boat; they eat into the commercial fishermen’s hard-earned, slim profits.

If you’re thinking the regulation sounds unfair, you’re not the only one.

The herring rule isn’t the best example of “sound federal regulation,” said Sam Kalen, an environmental law expert at University of Wyoming’s College of Law.

“This is not the best test case that could have gone to the Supreme Court on the government’s side urging deference,” said Kalen, who previously served with the Department of the Interior.

Kalen said it might prove to be a strategic error on the federal government’s part to allow the case to make it to the Supreme Court — where the justices’ decision can reach well beyond the pocketbooks of East Coast fishermen and across the 200,000 pages that make up the Code of Federal Regulations.

“This one, I think, is a little bit more problematic than a typical case,” Kalen said. “Having Chevron deference tested under this case is probably one of the easier cases for the court to try to take a look at to narrow Chevron.”

Undermining the precedent

The doctrine has come under increasing scrutiny in recent years, including in cases backed by the State of Wyoming. For example, one recent Supreme Court decision seen as weakening Chevron related to the 2015 Clean Power Plan.

Put forward by the EPA under the Obama administration, the new limits on carbon dioxide emissions at existing coal- and natural-gas-fired power plants were pitched as “an essential step in lessening the impacts of climate change and providing a more certain future for our health, our environment, and future generations.”

However, the plan was effectively scrapped by the Trump administration before being brought back in a new form by the Biden administration.

Ultimately, in 2022, the Supreme Court sided with West Virginia, Wyoming and more than a dozen other states, ruling that the EPA lacked authority under the Clean Air Act to impose the CO2 limits.

Wyoming Gov. Mark Gordon called the decision a “clean win” for the state against “an overzealous federal bureaucracy insulated from practical accountability.”

Last year, Gordon and Wyoming’s congressional delegation similarly cheered the court’s ruling in Sackett v. EPA, which overturned the agency’s “Waters of the United States” regulations. The rules, which were also challenged by the State of Wyoming and others, had broadened the definition of a “navigable body of water” and expanded the EPA’s jurisdiction under the Clean Water Act.

U.S. Rep. Harriet Hageman (R-Wyo.) described the reversal as a victory for private property rights and a blow against “unelected bureaucrats who think they should be able to dictate how we use our land and water.” 

Meanwhile, supporters like the Sierra Club decried the case as “a corporate polluter-backed effort to dismantle the Clear Water Act” and said the ruling “puts the drinking water supplies of millions of Americans at risk.”

Unelected bureaucrats versus unelected judges

Legal observers saw both the West Virginia and Sackett decisions as part of a move away from Chevron deference. And at January’s oral arguments on Loper Bright, “a majority of the justices seemed ready to jettison the doctrine or, at the very least, significantly limit it,” wrote Amy Howe, a lawyer and reporter for the SCOTUSblog.

Kalen personally thinks the majority of the Court will rein in cases of perceived overreaching regulation, but won’t completely do away with Chevron deference.

As for the NRDC, it hopes the doctrine established by its 1984 loss will remain in place.

A repeal “could unleash a torrent of litigation aimed at weakening or eliminating rules and standards we’ve relied on for decades to ensure the efficient functioning of society and protect us all from needless risk,” David Doniger, the NRDC’s senior federal strategist on climate and energy, wrote in January.

Part of the environmental group’s concern is there are roughly 850 judges in the lower courts with very different views.

“As the judicial appointments process has become increasingly partisan, the range of these judges’ views has gotten even wider,” the NRDC wrote in a piece last year. “Ending Chevron deference would be tantamount to throwing a dart at a lower-court dartboard … and hoping for the best.”

Doniger wrote that the Chevron doctrine “allows federal agencies — which are accountable to elected officials and have developed decades of expertise in the tasks that Congress has assigned to them — to do their duty on the public’s behalf, without having their reasonable policy choices second-guessed by unelected judges.”

Another path?

While current case law requires a great deal of deference, courts don’t always go along with the findings of executive level departments.

For example, it was U.S. District Judge Alan Johnson of Cheyenne who cleared the way for Wyoming’s wolf management plan to win federal approval; in 2010, Johnson found the U.S. Fish and Wildlife Service had arbitrarily rejected the state’s plan and ordered the agency to reconsider it.

On the other side of the coin, consider the management of the grizzly bears of the Greater Yellowstone Ecosystem. Under both Democratic and Republican administrations, Fish and Wildlife has deemed the region’s apex predator to be recovered. Yet federal judges overruled the agency in 2009 and 2018 to keep the bears protected under the Endangered Species Act — most recently over concerns that experts hadn’t properly considered genetic diversity issues.

Scrapping the Chevron doctrine could lead to more agency decisions being overturned; rules to protect a species or habitat may be just as likely to come from the judiciary as scientists who’ve spent their lives studying for postgraduate degrees on the very subject in question.

A potential solution — brought to UW Law Professor Temple Stoellinger by a student in her class on the National Environmental Protection Act — is to develop specialty courts, chaired by experts in the fields in question, resurrecting an early 1970s inquiry into the appropriateness of establishing specialized environmental courts, which could hear cases about the efficacy of such decisions as oil and gas leasing decisions in Wyoming, or challenges to decisions involving species protected under the ESA.

“We have separate judges for bankruptcy, because bankruptcy law is really complicated; I’ve heard people say we should have a similar structure for environmental law, because environmental laws are super complicated,” Stoellinger said in a recent interview. “So you’d have judges that are trained experts in subjects like the Endangered Species Act and environmental law. They’re the ones who would hear these types of cases instead of going just, you know, up to general federal district court judges who may or may not be experts.”

An impact on archeology

Although it could have big impacts on his field, Wyoming State Archaeologist Spencer Pelton thinks there may be valid reasons to repeal Chevron.

“For starters, Chevron’s central assumption that federal agencies are staffed with highly qualified experts is, in my experience, less true each year,” Pelton recently wrote on his personal blog “Social Stigma.”

For example, “I don’t think the best cybersecurity experts in the nation are working for the Department of Labor when they could be clearing seven figures at Google,” he said.

Pelton also believes that, because of the difficulty of firing federal employees, agencies tend to foist problem staff into positions of even greater influence.

“This practice has led to what I can only describe as a systematic overrepresentation of insufferable morons at the highest levels of government, the levels where regulations tend to be written,” he wrote, “while many of the government’s most talented and personable staff remain in stable, if lower impact careers in local offices.”

Pelton noted that the work of American archaeologists is heavily influenced by the Code of Federal Regulations. If the Chevron doctrine is scrapped, he thinks the courts may find some of the federal rules protecting historical properties and Native American artifacts have gone too far.

“I think America’s executive branch has grown too powerful and should be [reined] in, but that repeal will be a huge mess and potentially destroy America’s archaeological private sector,” he wrote. “A blessing and curse.”

Pelton ultimately hopes a repeal of Chevron would inspire archaeologists to pay more attention to the laws that underpin the profession’s regulations.

“To archaeologists that began working in the last two or three decades, these regulations have seemed as ancient as the gospels, forgetting that at some point some bureaucrat just … made them up,” he wrote. “If American archaeologists are serious about maintaining a viable future for their discipline, then they should probably start thinking about passing an actual law that mandates it.”

While there’s no specific deadline for the Supreme Court to issue its ruling, opinions are typically handed down by the last day of the court’s term — the day in late June or early July when the court recesses for the summer.