Government
A Supreme Court ruling on fishing for herring could sharply curb federal regulatory power
An important but controversial legal doctrine, known as Chevron deference, is at issue in two fishing cases. The outcome could affect many sectors across…
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Fisheries regulation might seem to be unusual grounds for the U.S. Supreme Court to shift power away from federal agencies. But that is what the court seems poised to do in the combined cases of Loper Bright Enterprises vs. Raimondo and Relentless Inc. vs. Department of Commerce. The cases are scheduled for oral argument in tandem on Jan. 17, 2024.
The question at the core of both cases is whether the secretary of commerce, acting through the National Marine Fisheries Service and following the Magnuson-Stevens Fishery Conservation and Management Act, can require commercial fishers to pay for onboard observers whom they are required to take on some fishing voyages. In both cases, the plaintiffs assert that the Commerce Department has exceeded its legal authority. That claim turns on how much deference the court should give the agency’s interpretation of the Magnuson-Stevens Act.
Specifically, plaintiffs are challenging a nearly 40-year-old doctrine of federal administrative law, known as Chevron deference for the 1984 case in which it was set forth. This tenet provides that when a federal statute is silent or ambiguous about a particular regulatory issue, courts defer to the implementing agency’s reasonable interpretation of the law.
In other words, if the agency and federal courts disagree about the “best” interpretation of a federal law, the courts cannot force the agency to accept their version of what the statute means or allows, so long as the agency’s own interpretation is reasonable.
Who pays for fishing monitors?
Under the Magnuson-Stevens Act, eight regional Fishery Management Councils regulate fisheries in federal waters that lie more than 3 nautical miles from shore. When these fisheries are overharvested or in danger of becoming so, these councils create management plans that are designed to end overfishing and bring the stock back to health. The National Marine Fisheries Service reviews the plans and publishes regulations to carry out those that it approves.
The law makes clear that these plans can require fishing boats to carry observers who monitor their catch. These trained biological technicians collect data on what the vessel catches, what it throws back and how its fishing affects protected species such as marine mammals and sea turtles.
However, the law does not state whether federal regulators can require the fishing industry to pay for these observers. The general background presumption in federal regulatory law is that regulated entities pay their own compliance costs. As an example, since 1990 the North Pacific Fishery Management Council has required the industry to partially fund its fishery observer program for groundfish and halibut through fees.
Targeting Chevron deference
Loper Bright and Relentless Inc. are fishing boat owners who are challenging 2020 regulations that require Atlantic herring fishers to pay some costs for observers on their boats. The Atlantic herring monitoring program seeks to put observers on 50% of fishing trips, with the National Marine Fisheries Service paying part of the cost and fishers paying the rest.
The companies complain that observers can cost up to $710 per day and reduce owners’ profits by up to 20%. The challengers in the Relentless Inc. case have fish-freezing equipment onboard their boats that enables them to stay longer at sea. Longer voyages mean they must pay more for the required herring monitors, even though on many days they will not be fishing for herring. Federal courts of appeals ruled in favor of the National Marine Fisheries Service in both cases.
The companies originally challenged multiple aspects of the 2020 regulations. However, the Supreme Court agreed to address only one question that each petition raised: whether the court should overrule the Chevron decision, or at least clarify that when a law is silent about an agency’s powers, federal agencies receive no deference from the courts when they interpret the scope of their own regulatory authority.
Who decides what the law means?
The Supreme Court created Chevron deference in a 1984 air pollution case, Chevron USA Inc. vs. Natural Resources Defense Council Inc. The case centered on the U.S. Environmental Protection Agency’s interpretation of the term “stationary source” in the Clean Air Act.
The EPA had decided that a “source” could be a facility that contained many individual sources of air pollutant emissions. This meant, for example, that a factory with several smokestacks could be treated as a single source for regulatory purposes, as if it were enclosed in an imaginary bubble.
This approach benefited industry: A facility could reduce emissions from the sources that were cheapest to upgrade and let its expensive-to-fix sources keep polluting, so long as its overall emissions under the “bubble” met the Clean Air Act’s requirements. Environmentalists sued, arguing that every individual smokestack or pollution source needed to be regulated.
In upholding the EPA’s decision, the court created a two-step test for deciding whether to defer to a federal agency’s interpretation of a statute that it administers. In Step 1, the court asks whether Congress directly addressed the issue in the statute. If so, then both the court and the agency have to do what Congress directs.
In Step 2, however, if Congress is silent or unclear, then the court should defer to the agency’s interpretation if it is reasonable, because agency staff are presumed to be experts on the issue. Justice John Paul Stevens reportedly told his colleagues, “When I am so confused, I go with the agency.”
Curbing the administrative state
Chevron deference has given federal agencies considerable flexibility to use statutes to address new and emerging problems that Congress did not anticipate.
For example, the U.S. Fish and Wildlife Service now lists species for protection under the federal Endangered Species Act based on “foreseeable” risks to the species from climate change, even if most actual impacts are decades or even a century away. Similarly, courts deferred to the Department of Labor during the COVID-19 pandemic when it protected workers from mass layoffs without warning.
However, some members of the current Supreme Court – as well as some federal appellate judges – have criticized Chevron deference for two key reasons.
First, the doctrine gives executive branch agencies authority to interpret federal law. However, since the Supreme Court’s 1803 decision in Marbury vs. Madison, it has been the duty of courts – not federal agencies – to say what the law is. Justices Neil Gorsuch, Clarence Thomas, Samuel Alito and Brett Kavanaugh have all indicated that they think Chevron deference allows federal agencies to usurp this core judiciary function.
Second, Chevron deference also arguably allows federal agencies to grab more regulatory authority than Congress intended them to have, usurping the legislative branch’s responsibility to make law and delegate authority. The current Supreme Court is particularly interested in policing these alleged power grabs.
Justices have stated this concern most obviously in the recently articulated “major questions doctrine,” which holds that agencies may not regulate on questions of “vast economic or political significance” without clear directions from Congress. This doctrine effectively limits the situations to which Chevron deference applies: The agency gets zero deference if it is trying to do something really new or disruptive without express authorization from Congress.
Litigation under the Magnuson-Stevens Act is relatively rare, and the Supreme Court has never before decided a case under this law. The fact that it chose to take these cases suggests to me that Chevron deference is about to die, or at least be substantially modified.
If that happens – especially with a gridlocked Congress – federal agencies’ authority will increasingly be limited to powers that Congress explicitly gave them, sometimes decades ago, and to whatever courts consider the “plain meaning” of the words Congress used. Such a result would reduce agencies’ abilities to deal effectively with contemporary needs and problems in areas ranging from health care to environmental protection, workplace safety and artificial intelligence.
Robin Kundis Craig does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
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Government
Low Iron Levels In Blood Could Trigger Long COVID: Study
Low Iron Levels In Blood Could Trigger Long COVID: Study
Authored by Amie Dahnke via The Epoch Times (emphasis ours),
People with inadequate…
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Authored by Amie Dahnke via The Epoch Times (emphasis ours),
People with inadequate iron levels in their blood due to a COVID-19 infection could be at greater risk of long COVID.
A new study indicates that problems with iron levels in the bloodstream likely trigger chronic inflammation and other conditions associated with the post-COVID phenomenon. The findings, published on March 1 in Nature Immunology, could offer new ways to treat or prevent the condition.
Long COVID Patients Have Low Iron Levels
Researchers at the University of Cambridge pinpointed low iron as a potential link to long-COVID symptoms thanks to a study they initiated shortly after the start of the pandemic. They recruited people who tested positive for the virus to provide blood samples for analysis over a year, which allowed the researchers to look for post-infection changes in the blood. The researchers looked at 214 samples and found that 45 percent of patients reported symptoms of long COVID that lasted between three and 10 months.
In analyzing the blood samples, the research team noticed that people experiencing long COVID had low iron levels, contributing to anemia and low red blood cell production, just two weeks after they were diagnosed with COVID-19. This was true for patients regardless of age, sex, or the initial severity of their infection.
According to one of the study co-authors, the removal of iron from the bloodstream is a natural process and defense mechanism of the body.
But it can jeopardize a person’s recovery.
“When the body has an infection, it responds by removing iron from the bloodstream. This protects us from potentially lethal bacteria that capture the iron in the bloodstream and grow rapidly. It’s an evolutionary response that redistributes iron in the body, and the blood plasma becomes an iron desert,” University of Oxford professor Hal Drakesmith said in a press release. “However, if this goes on for a long time, there is less iron for red blood cells, so oxygen is transported less efficiently affecting metabolism and energy production, and for white blood cells, which need iron to work properly. The protective mechanism ends up becoming a problem.”
The research team believes that consistently low iron levels could explain why individuals with long COVID continue to experience fatigue and difficulty exercising. As such, the researchers suggested iron supplementation to help regulate and prevent the often debilitating symptoms associated with long COVID.
“It isn’t necessarily the case that individuals don’t have enough iron in their body, it’s just that it’s trapped in the wrong place,” Aimee Hanson, a postdoctoral researcher at the University of Cambridge who worked on the study, said in the press release. “What we need is a way to remobilize the iron and pull it back into the bloodstream, where it becomes more useful to the red blood cells.”
The research team pointed out that iron supplementation isn’t always straightforward. Achieving the right level of iron varies from person to person. Too much iron can cause stomach issues, ranging from constipation, nausea, and abdominal pain to gastritis and gastric lesions.
1 in 5 Still Affected by Long COVID
COVID-19 has affected nearly 40 percent of Americans, with one in five of those still suffering from symptoms of long COVID, according to the U.S. Centers for Disease Control and Prevention (CDC). Long COVID is marked by health issues that continue at least four weeks after an individual was initially diagnosed with COVID-19. Symptoms can last for days, weeks, months, or years and may include fatigue, cough or chest pain, headache, brain fog, depression or anxiety, digestive issues, and joint or muscle pain.
Government
Walmart joins Costco in sharing key pricing news
The massive retailers have both shared information that some retailers keep very close to the vest.
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As we head toward a presidential election, the presumed candidates for both parties will look for issues that rally undecided voters.
The economy will be a key issue, with Democrats pointing to job creation and lowering prices while Republicans will cite the layoffs at Big Tech companies, high housing prices, and of course, sticky inflation.
The covid pandemic created a perfect storm for inflation and higher prices. It became harder to get many items because people getting sick slowed down, or even stopped, production at some factories.
Related: Popular mall retailer shuts down abruptly after bankruptcy filing
It was also a period where demand increased while shipping, trucking and delivery systems were all strained or thrown out of whack. The combination led to product shortages and higher prices.
You might have gone to the grocery store and not been able to buy your favorite paper towel brand or find toilet paper at all. That happened partly because of the supply chain and partly due to increased demand, but at the end of the day, it led to higher prices, which some consumers blamed on President Joe Biden's administration.
Biden, of course, was blamed for the price increases, but as inflation has dropped and grocery prices have fallen, few companies have been up front about it. That's probably not a political choice in most cases. Instead, some companies have chosen to lower prices more slowly than they raised them.
However, two major retailers, Walmart (WMT) and Costco, have been very honest about inflation. Walmart Chief Executive Doug McMillon's most recent comments validate what Biden's administration has been saying about the state of the economy. And they contrast with the economic picture being painted by Republicans who support their presumptive nominee, Donald Trump.
Image source: Joe Raedle/Getty Images
Walmart sees lower prices
McMillon does not talk about lower prices to make a political statement. He's communicating with customers and potential customers through the analysts who cover the company's quarterly-earnings calls.
During Walmart's fiscal-fourth-quarter-earnings call, McMillon was clear that prices are going down.
"I'm excited about the omnichannel net promoter score trends the team is driving. Across countries, we continue to see a customer that's resilient but looking for value. As always, we're working hard to deliver that for them, including through our rollbacks on food pricing in Walmart U.S. Those were up significantly in Q4 versus last year, following a big increase in Q3," he said.
He was specific about where the chain has seen prices go down.
"Our general merchandise prices are lower than a year ago and even two years ago in some categories, which means our customers are finding value in areas like apparel and hard lines," he said. "In food, prices are lower than a year ago in places like eggs, apples, and deli snacks, but higher in other places like asparagus and blackberries."
McMillon said that in other areas prices were still up but have been falling.
"Dry grocery and consumables categories like paper goods and cleaning supplies are up mid-single digits versus last year and high teens versus two years ago. Private-brand penetration is up in many of the countries where we operate, including the United States," he said.
Costco sees almost no inflation impact
McMillon avoided the word inflation in his comments. Costco (COST) Chief Financial Officer Richard Galanti, who steps down on March 15, has been very transparent on the topic.
The CFO commented on inflation during his company's fiscal-first-quarter-earnings call.
"Most recently, in the last fourth-quarter discussion, we had estimated that year-over-year inflation was in the 1% to 2% range. Our estimate for the quarter just ended, that inflation was in the 0% to 1% range," he said.
Galanti made clear that inflation (and even deflation) varied by category.
"A bigger deflation in some big and bulky items like furniture sets due to lower freight costs year over year, as well as on things like domestics, bulky lower-priced items, again, where the freight cost is significant. Some deflationary items were as much as 20% to 30% and, again, mostly freight-related," he added.
bankruptcy pandemic trumpGovernment
Walmart has really good news for shoppers (and Joe Biden)
The giant retailer joins Costco in making a statement that has political overtones, even if that’s not the intent.
Share this:
As we head toward a presidential election, the presumed candidates for both parties will look for issues that rally undecided voters.
The economy will be a key issue, with Democrats pointing to job creation and lowering prices while Republicans will cite the layoffs at Big Tech companies, high housing prices, and of course, sticky inflation.
The covid pandemic created a perfect storm for inflation and higher prices. It became harder to get many items because people getting sick slowed down, or even stopped, production at some factories.
Related: Popular mall retailer shuts down abruptly after bankruptcy filing
It was also a period where demand increased while shipping, trucking and delivery systems were all strained or thrown out of whack. The combination led to product shortages and higher prices.
You might have gone to the grocery store and not been able to buy your favorite paper towel brand or find toilet paper at all. That happened partly because of the supply chain and partly due to increased demand, but at the end of the day, it led to higher prices, which some consumers blamed on President Joe Biden's administration.
Biden, of course, was blamed for the price increases, but as inflation has dropped and grocery prices have fallen, few companies have been up front about it. That's probably not a political choice in most cases. Instead, some companies have chosen to lower prices more slowly than they raised them.
However, two major retailers, Walmart (WMT) and Costco, have been very honest about inflation. Walmart Chief Executive Doug McMillon's most recent comments validate what Biden's administration has been saying about the state of the economy. And they contrast with the economic picture being painted by Republicans who support their presumptive nominee, Donald Trump.
Image source: Joe Raedle/Getty Images
Walmart sees lower prices
McMillon does not talk about lower prices to make a political statement. He's communicating with customers and potential customers through the analysts who cover the company's quarterly-earnings calls.
During Walmart's fiscal-fourth-quarter-earnings call, McMillon was clear that prices are going down.
"I'm excited about the omnichannel net promoter score trends the team is driving. Across countries, we continue to see a customer that's resilient but looking for value. As always, we're working hard to deliver that for them, including through our rollbacks on food pricing in Walmart U.S. Those were up significantly in Q4 versus last year, following a big increase in Q3," he said.
He was specific about where the chain has seen prices go down.
"Our general merchandise prices are lower than a year ago and even two years ago in some categories, which means our customers are finding value in areas like apparel and hard lines," he said. "In food, prices are lower than a year ago in places like eggs, apples, and deli snacks, but higher in other places like asparagus and blackberries."
McMillon said that in other areas prices were still up but have been falling.
"Dry grocery and consumables categories like paper goods and cleaning supplies are up mid-single digits versus last year and high teens versus two years ago. Private-brand penetration is up in many of the countries where we operate, including the United States," he said.
Costco sees almost no inflation impact
McMillon avoided the word inflation in his comments. Costco (COST) Chief Financial Officer Richard Galanti, who steps down on March 15, has been very transparent on the topic.
The CFO commented on inflation during his company's fiscal-first-quarter-earnings call.
"Most recently, in the last fourth-quarter discussion, we had estimated that year-over-year inflation was in the 1% to 2% range. Our estimate for the quarter just ended, that inflation was in the 0% to 1% range," he said.
Galanti made clear that inflation (and even deflation) varied by category.
"A bigger deflation in some big and bulky items like furniture sets due to lower freight costs year over year, as well as on things like domestics, bulky lower-priced items, again, where the freight cost is significant. Some deflationary items were as much as 20% to 30% and, again, mostly freight-related," he added.
bankruptcy pandemic trump
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Low Iron Levels In Blood Could Trigger Long COVID: Study
Walmart has really good news for shoppers (and Joe Biden)
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