A true story, but ever so fishy…

By Don “Doc” Sanders

You may have heard of Chevron, the huge oil and gas company and probably one of the biggest oil producers in the world. But you may not have not heard of the “Chevron deference” justified by congressional agencies. This became an unspoken government policy some 40 years ago.

Here is the unspoken protocol. Congress would legislate a new, ambiguous bill to “fix” an issue. The enacted law was then passed to one of the agencies such as the FDA, EPA, USDA, or if there wasn’t a specific agency, a new one was formed. The purpose was to formulate government policy using the new law.

An example is when President Jimmy Carter formed the Department of Energy in 1977. Reportedly it was to plan strategies to conserve energy and develop alternative energy sources. I will let readers form their own opinions in this time of shifting energy strategies. Yet 40 some years later, it almost all falls back on using fossil fuels. Let’s face it. Windmills and solar panels aren’t the long-term solution.

The “Chevron deference” was Congress’ passing the buck to a government entity so they could skip their legislative responsibilities having often passed a poorly thought-out political hot potato to regulate a business, agricultural or public entity. In essence, legislation often had not been spelled out adequately or it was passed to satisfy a Congressional constituency.

Sometimes the proposed law might be 1,000 pages long. As Nancy Pelosi in 2010 famously said “Let’s get this bill passed so we can read what is in it!”

At this point the bill that passed into law was sent to a federal agency to define the legal parameters. The enacted law was interpreted by the agency and given wide authority to establish the parameters of enforcement. This was known as the “Chevron Doctrine.”

Now here is the fish story. In 2020 the National Oceanic and Atmospheric Administration (NOAA) decreed that government inspectors periodically sail with herring fishermen. The NOAA mission was to ascertain that herring fishermen follow herring harvest protocols and did not exceed their catch limit each day. Sounds reasonable, but it wasn’t. The NOAA required the fishermen pay the wages of the NOAA inspectors. Even our tightly regulated dairy industry does not pay the salaries of the state and federal inspectors.

The fishermen were following herring fishing protocols and weren’t angry about being monitored, but they were really ticked at having to pay the inspectors’ wages. To them this was like having a fox guarding the hen house.

The fishermen didn’t just follow NOAA herring fishing protocols and complain about it at the coffee shop. They filed litigation. They carried their case all the way to the Supreme Court. The Court ruled in favor of the fishermen (Looper Bright Enterprises v. Raimon – June 2024).

Many agricultural organizations are celebrating this decision as a clear victory over the rough shod methods used by regulatory agencies which utilize the Chevron Doctrine. According to the National Pork Producers Council: “Chevron deference has been the foundation of the dramatic growth in federal regulations and the transfer of nearly unlimited power to unelected federal bureaucrats that has taken place over the last 40 years.”

NPPC and the other groups including National Cattleman’s Beef Association, and the American Farm Bureau Federation argued that the “Chevron deference” rule allows lawmakers and courts to avoid doing their job, instead giving federal agencies free rein. In the meantime, the bureaucrats are screaming like Chicken Little that, “the sky is falling.”

While celebrating the win this summer, agricultural groups recognize they haven’t heard the end of the fishy business of federal regulation.