In recent years, a string of cases has been brought before the Supreme Court of the United States (“SCOTUS”) challenging the Chevron doctrine, which states that courts should defer to a federal agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable. Despite the numerous cases that have come before SCOTUS, the Court has never taken the step to overturn the landmark decision in Chevron v. Natural Resources Defense Council. This approach could change this year with already one case set to be heard in the fall term, as well as another petition for certiorari pending before the Court.

On May 1, 2023, in Loper Bright Enterprises et al. v. Gina Raimondo et al., No. 22-451, SCOTUS granted certiorari to a group of commercial fishing companies who claim the National Marine Fisheries Service (“NOAA Fisheries”) lacks authority to require them to fund the costs required to carry observers aboard their ships to ensure compliance with federal regulations. The United States District Court for the District of Columbia, relying on Chevron, found that even though there was ambiguity in the statute, NOAA Fisheries’ interpretation was reasonable. On appeal, the D.C. Circuit upheld the lower court’s decision. SCOTUS granted certiorari on the question of

Whether the court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.

This question is the broader of the two questions raised in the petition and directly takes on Chevron.

Additionally, on June 14, 2023, in EEI v. FERC, on appeal from the D.C. Circuit, the Edison Electric Institute and NorthWestern Energy (the “utilities”) petitioned SCOTUS to reverse a ruling in which the Federal Energy Regulatory Commission (“FERC”) interpreted the Public Utility Regulatory Policies Act (“PURPA”). The utilities have presented two questions to the high court, including:

Whether this Court should reconsider how and when Chevron should apply, or at least clarify that courts must exhaust normal statutory-interpretation tools before concluding that a statute is “ambiguous” at Chevron step one.

The utilities have requested that SCOTUS, at minimum, hold their petition pending disposition of Loper Bright. The Loper Bright case will likely be argued later this year and a decision could be issued in early 2024. Depending on the decision in Loper Bright, either the utilities’ petition could be another opportunity for SCOTUS to review the doctrine or the decision could directly bear on thecentral issue in the utilities’ case.

Certain factors suggest that the Chevron doctrine may be in a precarious state. First, several of the conservative justices have been very vocal in their criticism of Chevron and desire to narrow the breadth of the doctrine.[1] Additionally, Justice Ketanji Brown Jackson, in her previous role as D.C. Circuit Court of Appeals judge, was on the panel that initially considered the appeal in Loper Bright. Therefore, Judge Jackson has recused herself from the SCOTUS appeal, which means that that is one less justice who would potentially support Chevron. There are broad implications if SCOTUS ultimately overturns or limits the meaning of “ambiguity” in the 40-year-old doctrine, which could potentially increase the success of businesses or individuals in challenging administrative actions.

[1]  Baldwin v. United States, 140 S. Ct. 690 (2020) (Thomas, J., concurring) (“Chevron also gives federal agencies unconstitutional power”); Michigan v. EPA, 135 S. Ct. 2699, 2715 (2015) (Thomas, J., concurring) (“Chevron deference raises serious separation-of-powers questions”); Buffington v. McDonough, 143 S. Ct. 14, 18–19 (2022) (Gorsuch, J., dissenting) (criticizing Chevron in stating that “[r]ather than provide individuals with the best understanding of their rights and duties under law a neutral magistrate can muster, we outsource our interpretive responsibilities. Rather than say what the law is, we tell those who come before us to go ask a bureaucrat.”).