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The state’s largest environmental group is sounding the alarm about the potential harm to Connecticut’s waterways if the U.S. Supreme Court overturns or curtails a 40-year-old legal principle giving deference to federal agencies.
The regional nonprofit Save the Sound joined other environmental groups in filing an amicus brief in the case of Loper Bright Enterprises v. Raimondo, which was argued before the Supreme Court last month.
In Loper Bright, the court agreed to reexamine the Chevron doctrine, a 40-year-old Supreme Court principle under which courts defer to a federal agency’s reasonable interpretation of an ambiguous statute that Congress has authorized the agency to administer.
The lawsuit, brought by commercial fishing groups, challenges a federal regulation that requires herring boat fishing operators to pay for third-party, private observers to conduct federally required compliance checks.
The fishing companies argue that the regulation is invalid because the statute doesn’t explicitly state that the private businesses have to pay for monitors in this circumstance.
Applying the Chevron doctrine, the lower courts upheld the regulation, finding it a reasonable interpretation of the statute and, thus, entitled to deference.
But the conservative-leaning Supreme Court appears poised to limit or overturn Chevron — an outcome that, according to Save the Sound’s senior legal director Roger Reynolds, would have a significant impact on Connecticut’s coastal waters.
“It would really restrict the ability of the government to keep the Sound clean and protect critical fish populations,” he said.
Reynolds underscored how the state waterways have benefitted from the federal Clean Water Act, which requires fishable and swimmable water that is safe for humans and aquatic life, and expressed concern that federal environmental agencies would become “paralyzed” without the deference afforded by Chevron.
“Federal law is the real backbone,” he said. “That’s what cleaned up Long Island Sound. The Naugatuck River would turn different colors. Our waters are substantially cleaner now. If agencies don’t make that call, who does?”
The Chevron doctrine gets its name from Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., a case decided in 1984. Chevron deference is rooted in the recognition that agencies, not the courts, have the subject-matter expertise necessary to implement federal law.
But critics have blasted the courts’ use of the Chevron doctrine as undemocratic in that it grants expansive power to unelected bureaucracies that are not directly accountable to voters. According to the Cato Institute, a right-leaning libertarian think tank, Congress passed 81 laws in 2021, compared to 3,257 regulations issued by the Biden administration with the full force of law during that same one-year period.
Advocates of overturning or limiting the Chevron doctrine point to the growth of the administrative state as evidence of the need to curb its reach. The Federal Register, which publishes federal agency rules and notices, has grown from 16,000 pages in 1950 to over 188,000 pages in 2021. According to the Competitive Enterprise Institute, a right-leaning libertarian think tank, those pages represent almost $1.9 trillion in annual regulatory costs imposed on businesses and individuals by federal agencies.
But Bill Lucey, Save the Sound’s Long Island Soundkeeper, said the large commercial fisheries involved in the Loper Bright case can afford the cost of at-sea observers to gather data about Atlantic herring populations.
“It’s irritating to me that the boats had a problem paying for these monitors,” he said.
He said good data from observers is critical to understanding and addressing the precipitous drop in Long Island Sound river herring, and he remains concerned that eliminating deference to environmental agencies could further harm Atlantic herring populations by “slowing down everything.”
But Norm Bloom, owner of Copps Island Oysters in Norwalk, said he isn’t concerned about the Loper Bright case affecting his shellfish farm because his industry is predominantly regulated by state and local agencies.
Connecticut’s Bureau of Agriculture monitors his catch and, unlike the case before the Supreme Court, pays for the monitoring box he’s required to keep on his boats. By guaranteeing the safe consumption and good health of Copps Island oysters, the state “provides a valuable service, without a doubt,” he said.
Bloom said he supports the efforts by the federal government and regional nonprofits to protect coastal waters and, in turn, the sustainability of his oyster populations.
“We’re big into it. We just want clean water and we do everything to keep it,” he said.
Bloom agreed that decades of federal oversight has improved water quality along Connecticut’s coast.
“The Sound is way cleaner than when I was a kid in the ’70s,” he said. “You didn’t see past your ankles then.”
A decision in Loper Bright is expected by summer.