By Mark Dunckel | Staff Editor

February 27, 2024

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Imagine you’re working in an office and a supervisor asks you to copy a report. You have expertise when it comes to this type of job and are specifically trained to perform tasks such as this. Your expertise is to the point that no one else in the entire office is capable of doing this. Even your supervisor is completely oblivious when it comes to copying. Like most people you would likely take the report, go to the copying machine, and make the photocopy. Sounds easy enough, right? Imagine next that a third party comes in and says you’re not allowed to use that machine. This individual has never used a copying machine, doesn’t have the expertise you have, and has never stepped foot in your office building until now. You are told that you can’t use the copier because your supervisor didn’t explicitly tell you to use it, or any specific method to make the copy. Or worse, someone said all copies should be done by hand thirty years ago, so you must follow that. You look to your supervisor for permission but they’re too busy handling other issues to do anything. Your supervisor trusted you to use the method you felt was best to make the copy, but now that this third party is here you are left feeling unable to do your job in the best way.

The above scenario sounds extreme, right? It certainly doesn’t sound like an efficient workplace. Now imagine that instead of making a copy, your job is to develop a management plan for herring-fishing operations in the Northeast United States. That seems a bit more complicated. This is what NOAA and the New England Fishery Management Council face before the Supreme Court, and what could become a common occurrence for agencies in the environmental field.

For the second time in American history, the Supreme Court may limit agency authority over the protection of a fish.[1] In two disputes involving a management plan in the Atlantic Herring Fishery, the Court considers whether to overrule the longstanding Chevron doctrine.[2] In a secondary question, the Court considers how to treat agency authority that is derived from statutory silence.[3] Assuming the Court upholds Chevron, the Court may take this opportunity to limit agency authority, specifically by stating silence cannot constitute a grant of authority.

Beginning in the New-Deal Era, Congress entered a new area of “public interest” legislation tackling new challenges facing the country in highly complex fields.[4] As Congress realized the issues in these fields could not be solved by legislation alone, it began to delegate more authority to agencies causing the “administrative state” to grow.[5] Arguably the most complex field of law Congress entered during the New Deal was environmental protection. In 1970, Congress created the EPA to be an agency designed to protect human health and the environment.[6]

Environmental issues have characteristics which make them more difficult for Congress to solve, increasing the reliance on agency enforcement.[7] Because of this, Congress created a system involving broad delegations of authority to agencies such as the EPA. Congress also enacts legislation allowing agencies to further their expertise and develop on-the-ground solutions to these environmental problems.[8] Arguably the most important thing Congress does to allow this is remain silent on specific issues in a statute, allowing an agency to further its expertise and find the best method to implement a regulatory scheme.

Agency authority stemming from silence formed the basis of the Court’s holding in Chevron.[9] Despite this fact, opponents of Chevron and agency-based problem solving see authority based in silence as a formula for agency aggrandizement.[10] This fails to recognize the importance of—and actual use of authority in silence—specifically in the environmental field. Congress relies on authority in silence, and a total failure to recognize authority in these cases would have detrimental effects on environmental law and agencies’ ability to solve environmental problems.

The Court can draw from various sources to develop a method to recognize agency authority in statutory silence. By considering past precedent[11] and writings by former and current justices[12], the Court can employ workable tests to recognize this authority without upsetting constitutional principles. Doing this would allow Congress to continue its use of silence in environmental legislation so agencies––such as the EPA––can further expertise and remain flexible in the environmental field. The Court should adopt a method to allow this, avoiding the detrimental impacts to the environment that would result if it invalidated the prevalent use of agency authority in silence.

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[1] See Tenn. Valley Auth. v. Hill, 436 U.S. 153 (1978) (strengthening the Endangered Species Act and preventing a project by the TVA to protect the snail darter).

[2] Chevron, U.S.A., Inc. v. Nat. Res. Def. Couns., Inc., 467 U.S. 837 (1984).

[3] E.g., Loper Bright Enters., Inc. v. Raimondo, 143 S. Ct. 2429 (2023).

[4] Id.

[5] Id.; Columbian College of Arts & Sciences Regulatory Studies Center, Reg Stats, Geo. Wash. Univ., https://regulatorystudies.columbian.gwu.edu/reg-stats (last visited Jan. 20, 2024) (showing a chart of the growth of the Code of Federal Regulations from 1950 to 2021).

[6] EPA History, EPA, https://www.epa.gov/history (last visited Feb. 16, 2024).

[7] Richard J. Lazarus, Restoring What’s Environmental About Environmental Law in the Supreme Court, 47 UCLA L. Rev. 703, 747 (2000).

[8] Jody Freeman & David B. Spence, Old Statutes, New Problems, 163 U. Pa. L. Rev. 1, 81 (2014).

[9] Chevron, supra note 2, at 843.

[10] See Thomas W. Merrill, Re-reading Chevron, 70 Duke L.J. 1152, 1192–93 (2021).

[11] Edwards’ Lessee v. Darby, 25 U.S. (1 Wheat.) 206 (1827); Kisor v. Wilkie, 139 S. Ct. 2400 (2019).

[12] Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363–72 (1986); Brett M. Kavanaugh, Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev 1907 (2017); Antonin Scalia, Judicial Deference to Administrative Interpretation of Law, 1989 Duke L.J. 511 (1989).