OPINION: Courts should claw back their constitutional authority

It was 1984 when the U.S. Supreme Court heard the Chevron U.S.A. v. Natural Resources Defense Council case and ruled that if Congress passes an ambiguous law, “That courts should defer to a federal agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable.”

For the 39 years that this ruling has been in place, the federal unelected bureaucracies have used the “Chevron deference” to decide which “reasonable interpretation” of an ambiguous statute will be used to administer the law. That ruling severely limits any more substantial judicial review of how the law is administered and instead makes the president of the U.S., through his power to appoint an agency chief, the ultimate decision-maker on what is a “reasonable interpretation.”

The problem is that the president and agency heads do not deal with, or are even aware of, the minutia of the laws that are passed by Congress, which places the interpretation into the whims of whatever department is administering the statute. But that bureaucratic power may very well be restricted or eliminated this next year and the environmental organizations are anything but happy about it.

The Supreme Court has decided to hear Loper Bright Enterprises v. Raimondo, a case where a group of group of New England commercial fishing companies are challenging a rule issued by the National Marine Fisheries Service. The Magnuson-Stevens Act sets catch limits to help prevent over-fishing and requires fishing boats to have a government-appointed inspector on board to monitor compliance. The NMFS has decided that the private companies, instead of the agency or federal government, are responsible for the cost of the monitor. Since the cost of the monitor, which can run as high as $700 per day, has to be paid out of that boat’s daily costs, the fishermen are challenging the NMFS’s authority to impose that cost.

In a June 21 Natural Resources Defense Council article titled “What Happens if the Supreme Court Ends ‘Chevron Deference’ ?”, author Jeff Turrentine employs the “Sky-is-falling” scenario when he argues against the Supreme Court narrowing or overruling the Chevron case. In his article, he states that “the act of policy making has always belonged to the two elected branches.”

By this, he means Congress and the executive branch.

He goes on further to state, “The Supreme Court could seize for itself and lower-court judges a policy making role the Constitution did not intend for them to have. If it does, the court could strip many federal agencies tasked with protecting public health, public safety and the environment — including the U.S. Environmental Protection Agency and the U.S. Food and Drug Administration, to name just two — of their power to interpret the laws they carry out. Instead, federal judges would now call the shots.”

Turrentine quotes David Doniger, who argued the Chevron case on behalf of the NRDC, as saying, “What it comes down to is this: If Congress has left an agency with a policy choice, the agency should get to make it, not the courts.”

The overwhelming irony of those statements is inescapable. For decades now, the environmental organizations that challenge U.S. Forest Service timber sales have gone to the courts and gotten one of their forest biology-ignorant pet judges to overrule the Forest Service’s environmental impact statements and environmental assessments. The most egregious example of judicial overreach was exhibited by former U.S. District Court Judge James Redden, who rejected all the biological assessments for Snake River salmon recovery presented by the Clinton, Bush and Obama administrations. Redden freely admitted on public radio after he retired that, in his opinion, the Snake River dams had to be taken out and, since none of the biological assessments did that, then he felt completely right in rejecting them.

Neither the NRDC nor any other environmental activists have ever complained about the judiciary making policy in those cases. In fact, they often celebrate them.

Here in the Western U.S., with our extensive federal lands, we have to deal with dozens of federal agencies. It’s also a long way to Washington, D.C., and the president’s ear if we have a dispute with one of his executive branch decisions. The courts may be our only solution to a timely resolution.

In the Loper Bright case, the NMFS is essentially imposing a tax on the monitor-staffed fishing vessels. However, the power to tax is reserved to Congress under Article 1, Section 8 of the U.S. Constitution. The NMFS, being an executive branch agency, does not have that power.

If the Supreme Court does not eliminate the “Chevron deference,” then it should at least severely limit its scope. Given the opportunity, all federal agencies, especially at the D.C. level, will try to increase their power, even if it means going beyond what the Constitution allows. It’s time for the court to let them know that a “reasonable interpretation” of a policy choice does not include usurping power from another branch of government or an excessively onerous regulation. It’s also time to let the environmental activists know that the president is not the final arbiter on decisions made by his agencies. That power belongs to the courts, no matter how much they may wish otherwise.

Hassoldt is a field forester who lives in Kendrick.