An optimist’s view of the end of the Chevron deference
My name is David Goethel. I am a commercial fisherman for over 55 years, a research biologist, and a former fisheries manager. As the author of Endangered Species/ Chronicles of A New England Fisherman, I discuss these issues and a lawsuit I filed in 2015 with the legal group Cause of Action over the legal concept of Chevron Deference.
Most people believe that Congress writes laws, the executive branch carries out those laws, and the judicial branch interprets those laws and determines whether certain aspects of those laws are constitutional and properly applied. It turns out that, under a doctrine called “Chevron Deference,” the regulatory bureaucracy can find a law unclear or ambiguous and issue any regulation the agency deems necessary to perform its bureaucratic function.
Until last Friday, courts deem regulators “recognized experts,” even though that requires no evidence and does not apply an ambiguity test. The Supreme Court on Friday overturned Chevron’s decision, saying they had “put a tombstone on their grave.” Fishermen, including myself, had sued, arguing that unelected regulators should not have such enormous power over our lives.
Our case involved paying $700 to $900 per day for monitors at sea, even though the governing law, the Magnusson-Stevens Act, lists only two fisheries in the Pacific Northwest that must pay for monitors and then strictly limits reimbursement to 3 to 4 percent of the value of the catch. NOAA Fisheries, citing Chevron, ruled that all herring and groundfish vessels in the Northeast and Mid-Atlantic must pay for 100 percent monitor coverage, regardless of cost.
In my case, the costs often exceeded the value of the catch. On Friday, I was vindicated; if the law does not provide that regulators can do something, the courts will enforce the law as written. A victory for democracy and the rule of law.
So if this is a victory for the rule of law, why are the gossips being pushed out of circulation to such an extent?
Well, each group has their own reasons, but most fall into several broad categories.
Some members of Congress are upset because they officially have to do their jobs. Many members of Congress have a vested interest in keeping legislation vague so that the bureaucracy is pressured and Congress can be re-elected. The key word here is elected. The power of election allows us to replace members of Congress. The bureaucracy is unelected and, under civil service rules, is virtually untouchable.
The second major group are people who operate in secret, often through the bureaucratic back door to do things that cannot be done through the front door of the public process. This includes a whole alphabet soup of nonprofits that use the “sue and settle” tactic. They sue a government agency because their cause is not publicly accepted, then settle with the agency that enforces the law under the guise of Chevron (and pay the group’s legal fees as part of the settlement with your tax dollars). Now that option is gone. You will have to deal with the dreaded “C” word. Anything that forces compromise in a public process promotes a civil society that values and respects all opinions. A win for everyone, not just certain special interests driven by their own interests.
And finally, the bureaucracy must be angry. It will once again work for and be accountable to the American people. I have worked with many regulators in the fishing sector in my career. In person, almost all of them were reasonable people trying to do their jobs. But collectively, the agencies they work for are returning to what the framers of the Constitution were most concerned about. Absolute power corrupts absolutely, and people who spend other people’s money do not apply a means test or spend said money as if it were their own. You can no longer hide behind Chevron and pass the costs on to those being regulated. Spending must now be justified and reviewed by Congress, the only legal taxing authority. Hopefully life will soon be easier and less expensive.
Some may disagree with my views, and some may say I’m a hopeless optimist. But I do know this: the pundits who say democracy will end without Chevron are just a modern version of Chicken Little. They’ve been there my whole life, and we’re all still here. The world hasn’t ended yet. We can agree on this: I’m an optimist, I’m a fisherman.
David Goethel of Hampton is a retired commercial fisherman.
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