Does US Climate Policy Have a Herring Problem?

Image courtesy of Jet Kim and Unsplash

· Introduction

It is nearly impossible to conceive of any significant environmental regulation over the past four decades that has not involved the application of the “Chevron deference.” It’s one reason conservatives and others, e.g., the fossil fuel industry, are now rooting for the US Supreme Court (SCOTUS) to strike down the deference — in the name of the separation of powers set out by the US Constitution.

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The instruments of the deference’s possible destruction will be the high court’s decisions in two cases involving herring fishing. The cases, Loper Bright Enterprises v. Raimondo and Relentless Inc. v. US Department of Commerce could be to administrative law what Dobbs v. Jackson Women’s Health has been to as a woman’s right to an abortion. A decision is expected this summer.

The Supreme Court agreed to hear the cases, but the only question it will be addressing is whether to reverse or refine the decision in the 1984 case of Chevron v. NRDC that gave rise to the doctrine named for it. It will not be deciding whether the $700 daily charge to herring fishing boat owners to cover the cost of inspectors is reasonable.