Chevron deference, a bureaucratic battering ram and one of the most frustrating legal doctrines faced by farmers and landowners over the last 40 years, may be on the brink. If it falls, the government will lose one of its most frequently played wild cards in control of private land.
Boosted by Chevron deference, unelected employees of federal agencies both write and interpret rules for farmers and private property owners. The dual, contradictory power is often wielded by EPA, Forest Service, Fish & Wildlife, NRCS, and all other divisions of the administrative state.
In May 2023, the Supreme Court announced its intention to examine questions around Chevron deference. How might Chevron fall? A fisherman helps a farmer.
Got Legs?
Headquartered in Cape May, N.J., Loper Bright Enterprises is a family‐owned fishing company. Loper’s herring boats are subject to National Marine Fisheries Service (NMFS) guidelines, including the mandatory onboard presence of a NMFS representative to enforce federal regulations during every fishing trip. Loper is required to pay for the NMFS employee’s presence to the tune of approximately $700 per day—a massive bite of profit.
Loper sued, arguing NMFS had no legal authority to force payment for the ever-present monitors. The U.S. Court of Appeals for the D.C. Circuit, relying on Chevron deference, agreed with NMFS. However, on May 1, 2023, the Supreme Court agreed to consider Loper Bright Enterprises v. Raimondo—particularly whether the Chevron doctrine still has legs.
Loper v. Raimondo will be heard in fall 2023. In a nutshell, if the Supreme Court strikes down Chevron, the implications will be major for farmers and private landowners, i.e., agencies will no longer possess the sweeping power to both make and translate rules.
Wash. Rinse. Repeat.
Born of an environmentally-related Supreme Court case (Chevron v. NRDC) in 1984, Chevron allows judges to rely on agency interpretation when ambiguity is found in federal law. Simply summarized: When in doubt about a regulation, judges can turn to agency judgment—the same agencies that wrote the regulations.
Therefore, despite lacking consent of the governed, agency officials write the rules, decide on the meaning of the rules, and enforce the rules. The only exception is if the agency interpretation of the statute at issue is “arbitrary and capricious”—a difficult standard to overcome.
The Chevron dynamic reveals deep bureaucratic disfunction, according to Roger McEowen, Professor of Agricultural Law and Taxation at the Washburn University School of Law, and author of the Agricultural Law and Taxation Blog.
Chevron is often the final hurdle faced by farmers when challenging the administrative state, McEowen contends. “It’s part of a problem farmers and ranchers have had with USDA administrative agencies or sub-agencies for years. For example, if you get into a dispute with FSA, and you don’t agree with their decision, who do you appeal to? You appeal to another branch of USDA. You’re forced to appeal to the same administrative body that made the decision against you. You may have three or four layers to that, and other procedural rules, and you can’t get to a court until you exhaust your administrative remedies.”
“The agency that initially made the adverse decision against you very, very rarely overturns itself,” he adds. “Therefore, you must go through a lengthy process before you can get an actual judge’s eyes to see the matter.”
When a landowner contests a government agency action, spends money on attorney fees and court costs, and often waits years for the court doors to open, Chevron deference looms. “The deck is often stacked against a farmer or rancher,” McEowen emphasizes. “The court doesn’t hear your case anew. It looks at the original case and sees if the agency abused its discretion, and that’s a very tough standard for a private citizen to overcome. If the court sees nothing deemed arbitrary or capricious, then it defers to the agency interpretation.”
Only Congress has the power to make federal laws, but Congress allows administrative agencies to pen underlying regulations—sometimes a fill-in-the-blank sweeping power. “Congress writes ambiguous laws, like the Clean Water Act, and EPA or the Corps get to define wetlands or WOTUS-related issues,” McEowen explains. “Suddenly, agency officials not subject to any voter define what the law is. That is the problem. We have a broken system.”
“Whether it’s the Sandhills of Nebraska or the High Plains of west Texas or anywhere else in the country, Congress delegates the writing of regulations to salivating administrative agencies,” McEowen describes. “Essentially, those agencies, composed of career bureaucrats, write the laws that agriculture producers must follow. Just look at the Code of Federal Regulations: We’re talking about 200 volumes. That Code is where we go to see what agencies have said a law means. We have the law and then we have 200 volumes of regulations to interpret the laws—all made by unelected bureaucrats.”
Low Stakes No More
Loper v. Raimondo likely will be decided by the Supreme Court in 2024. “I don’t know what will happen, but if the Supreme Court eliminates Chevron, federal agencies could no longer say, ‘Defer to us because we have all the expertise,’” McEowen notes. “That excuse would be gone and judges would have to examine the statutes based on the Constitution.”
“A judge could then look at a statute and then either void the law as being vague or strike down the agency’s interpretation.’ Overall, the end of Chevron could force Congress to write clearer laws.”
Bottom line, the New Jersey fishing case may make a tremendous impact on American farmers and ranchers. “Loper v. Raimondo was once a low-stakes decision by a federal agency,” McEowen concludes, “but it could become extremely significant for agriculture and a matter of great political controversy.”
For more from Chris Bennett (cbennett@farmjournal.com 662-592-1106) see:
Priceless Pistol Found After Decades Lost in Farmhouse Attic
Cottonmouth Farmer: The Insane Tale of a Buck-Wild Scheme to Corner the Snake Venom Market
Tractorcade: How an Epic Convoy and Legendary Farmer Army Shook Washington, D.C.
Bagging the Tomato King: The Insane Hunt for Agriculture’s Wildest Con Man
Young Farmer uses YouTube and Video Games to Buy $1.8M Land
While America Slept, China Stole the Farm
Bizarre Mystery of Mummified Coon Dog Solved After 40 Years
The Arrowhead whisperer: Stunning Indian Artifact Collection Found on Farmland
Fleecing the Farm: How a Fake Crop Fueled a Bizarre $25 Million Ag Scam
Skeleton In the Walls: Mysterious Arkansas Farmhouse Hides Civil War History
US Farming Loses the King of Combines
Ghost in the House: A Forgotten American Farming Tragedy
Rat Hunting with the Dogs of War, Farming’s Greatest Show on Legs
Evil Grain: The Wild Tale of History’s Biggest Crop Insurance Scam
