U.S. fisheries could be devastated by Supreme Court’s ending the Chevron doctrine

Loper Bright Enterprises v. Raimondo — the Supreme Court’s late June decision on regulatory agency authority — heralds the much-anticipated end of the 40-year-old Chevron doctrine, which required courts to defer to federal agencies when interpreting laws. No doubt, much will be written in the coming weeks about the impacts of Chevron’s demise on the administrative state. But, at its core, Loper Bright is a case about fisheries. What then are the implications of this decision for both the fishermen and the healthy fisheries of the United States?

This case comes at a critical time for U.S. fisheries. Historically, the U.S. has seen many notable economically and culturally ruinous fisheries collapse — from the Atlantic cod collapse of the 1990s to the current collapse of Pacific salmon. The Magnuson-Stevens Act created the framework for the protection of U.S. fisheries and has been moderately successful since its enactment.

However, worrying trends across the country show increasing warning signs of fishery collapses, from Alaska to Maine to Florida, so it is critical to properly manage these fisheries. One way to do that is by determining how much fish it is safe to catch without depleting fish stocks to unhealthy levels. It is only possible to do this if managers know how many fish there are in the wild and how many of those fish are being caught. This is a surprisingly difficult task because the ocean is vast, making monitoring and enforcement costly and time-consuming.

Perhaps the most tried-and-true approach to monitoring fisheries is by using onboard observers, which is the central issue in Loper Bright. These observers travel on fishing vessels and provide the only way of knowing how much fish are actually being caught by fishing boats. Left to their own devices, fishermen are unlikely to accurately report on these figures, as the incentives to misreport can be very high.

Congress has unequivocally recognized the importance of observers, creating amendments to the Magnuson-Stevens Act not only requiring observers but also requiring that fishermen pay for their costs. Unfortunately, given agency resource constraints, the only way observer costs can be carried is if fishing vessels shoulder some of the burden.

This may seem patently unfair, but it must be viewed in light of the fact that fisheries are fundamentally common-pool resources. A cost of entry, including paying for the observers to monitor the health of the fishery, is expected, and many fishermen have recognized and complied with this. After the Supreme Court’s landmark ruling in Loper Bright, however, agencies may no longer have the authority to require that fishermen contribute to the costs of observers.

Ironically, fishermen themselves recognized the need for observer coverage and for fishing boats to shoulder those costs in the rule challenged by Loper Bright. The decision was not solely made by the much-maligned administrative staff of the National Marine Fisheries Service; instead, it was made by the Regional Fisheries Management Council — a body created by the Magnuson-Stevens Act, composed of fishing industry representatives, government officials, scientists, and other interested parties.

The collaborative process of this group, while flawed in many ways, goes above and beyond what the Administrative Procedure Act requires and forces many parties with starkly conflicting viewpoints to come to a consensus agreement.

The Supreme Court’s new decision takes the power away from these types of groups, giving the judiciary an opportunity to weigh in with their independent judgment to decide what is appropriate in this highly controversial area. It is hard to believe that any one judge, no matter how well-informed or astute, will be better able to decide what is reasonably required for a fishery’s future than the fishermen and scientists on the ground.

This is not the process Congress envisioned. Congress can, and should, act again here to make it clear that the National Marine Fisheries Service rules challenged in Loper Bright were intended and necessary under the Magnuson-Stevens Act. Without this action, Loper Bright may spell the end of observer coverage — something that could be devastating to the future of fisheries management.

In the meantime, the cases will now be remanded to determine whether the National Marine Fisheries Service rule requiring vessels to pay for at-sea monitors can be upheld without agency deference. It is not clear that it will. This would be a major blow to fisheries monitoring, but there is some hope for the future. New technologies are being developed that, one day, may be able to supplement and replace observers. Camera systems, known as electronic monitoring tools, can be placed on vessels to record the types of fish brought onto boats and send that information to regulators.

However, these systems are still in the early phases, with high costs and numerous legal challenges to overcome. Until such systems can be implemented, the observer — which Loper Bright dramatically undermines — is a necessary cornerstone of sustainable fisheries management in the U.S.

Annie Brett is an associate professor of law at University of Florida’s Levin College of Law. She writes and researches on environmental and maritime law, and has written several papers specifically on issues surrounding fisheries data.