A Supreme Court Case That Protects The Environment, Health Care, And Food Safety Is At Risk

JUANA SUMMERS, PRESIDENT:

Northeast herring fishermen don't want to be forced to pay for professional observers on their boats. They went to court and the matter is now before the Supreme Court. Protesters gathered today and fishermen asked judges to uphold the opposite precedent.

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UNIDENTIFIED PROTESTER: We oppose this ruthless government. Let me hear it one more time. We do not agree.

UNIDENTIFIED MUSICIANS: We are protesting.

UDAC: But it’s not about the fish; this has a significant impact on the environment, health and the financial sector. NPR's Carrie Johnson watched from the courthouse today and is here in the studio. Hi Kerry.

KERRY JOHNSON, BYLINE: Hi, Juana.

SOMMERS: So, Kerry, enlighten me if you can. If we're not talking about fish, then what?

JOHNSON: You know, it took almost half an hour to get the fish issue to court, and that too by the way. This case is really about federal regulation: what happens after Congress passes a law, a law that isn't clear. Question: Who decides? Are they experts from federal agencies like the Environmental Protection Agency or Health and Human Services, or are they federal judges? And under a system that has been in place for nearly 40 years, it is now federal agencies that make these decisions. But big business groups want the court to overturn that precedent, known as Chevron deference.

SUMMER: Okay. And, Kerry, what are the arguments for reversing precedent?

JOHNSON: The fishermen's lawyers say the situation is now truly out of control. They say the agencies have too much power that should belong to Congress or federal judges who must interpret the laws, and they do it all the time. This is Roman Martinez, the fishermen's lawyer.

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ROMAN MARTINEZ: We respectfully suggest that the solution here is to recognize that the main problem is Chevron itself. The right of interpretation belongs to the courts.

JOHNSON: He says the Supreme Court abandoned the Chevron precedent and there's no way to resolve the problem. He says it will take several decoders to figure out how to properly apply the law here. And he said to these judges: stop. Don't fix it.

SOMMERS: Okay, then. Kerry, this is an argument for removing this sequence. Tell me, what about the previous one?

JOHNSON: Justice Elena Kagan actually disagreed with the fishermen's lawyer. He asked her some very difficult hypothetical questions. There is a new product that claims to help maintain healthy cholesterol levels. Will it be a food supplement or a medication? And then I asked him a lot of questions about artificial intelligence. Essentially, he argued, these decisions should be made by agency experts, not judges. Here's another from Justice Kagan.

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Alena Kagan: It is better to contact competent people who have many years of experience in the field and have seen thousands of similar situations. And you know, judges have to know what they don't know.

JOHNSON: The Biden administration also favors maintaining Chevron's structure. The attorney general says this is a fundamental piece of administrative law that has been cited thousands of times over the years. He says if the Supreme Court overturns another major precedent, as it did with abortion, there will be thousands of cases, cases that will end up before the courts and the Justice Department.

SOMMERS: Kerry, I know it's always difficult to predict what the Supreme Court will decide based on arguments alone, so I'm not going to ask you to pull out a crystal ball here. But didn't the judges hint at what we might see?

JOHNSON: Yes, most conservatives on the ground seem very skeptical that Chevron can be saved. Justice Neil Gorsuch, who wrote that this precedent deserves a tombstone, made clear today that he wants it to be tossed out again. This also applies to Justices Brett Kavanaugh, Samuel Alito and Clarence Thomas. But Amy Coney Barrett, another Trump appointee, seemed genuinely concerned that if she overturned precedent, it could open the door to more lawsuits. I haven't heard five votes to end this 40-year-old case, but it's possible. We will know more by summer if the judges are willing to rule, and a decision is expected at that time.

SUMMER: NPR's Kerry Johnson. Kerry, thank you.

JOHNSON: With pleasure. Transcript provided by NPR, Copyright NPR.

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