by Tim Casey
In Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), the U.S. Supreme Court overruled its foundational decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—which required courts to “defer” to “permissible” interpretations by federal agencies of the statutes they administer when those statutes were “silent or ambiguous” as to the question at hand, id. at 843—concluding that Chevron is irreconcilable with the federal Administrative Procedure Act (APA). The decision raises the question whether Massachusetts state courts will follow the Supreme Court and abandon the deference our courts have traditionally given to state executive-branch agencies when they interpret the state statutes they administer.
This Article predicts that our courts are unlikely to follow Loper Bright, and thus state agencies will probably continue to receive substantial deference in their interpretation of the state statutes they implement. After summarizing the Supreme Court’s decision, this Article identifies four reasons why our state courts are unlikely to follow it. First, the differences in language between the federal APA and our cognate state law—particularly G.L. c. 30A, § 14—are significant, with the latter calling for more deference than the former. Second, our state courts have not followed prior efforts by the Supreme Court to reduce the power of executive-branch agencies, but instead have a long tradition of granting substantial deference to state-agency action, which is not dependent on Chevron as the basis for the practice. Third, to the extent Loper Bright can be read as being based, in part, on federal constitutional considerations, our Supreme Judicial Court (SJC) has repeatedly signaled its willingness to part ways with the U.S. Supreme Court when the SJC is interpreting the Massachusetts Constitution. And fourth, our courts are likely to agree with the reasons identified by the dissent in Loper Bright as sound bases for continuing to defer to state-agency action.
Summary of Loper Bright
Loper Bright concerned a federal regulation promulgated by the National Marine Fisheries Service (NMFS) under the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. § 1801 et seq., which governs commercial fishing in federal waters. The MSA specifies certain circumstances in which “observers” may be required to be on board a domestic fishing vessel, at the vessel owner’s expense, to gather data necessary for the conservation of species within the fishery. See id. § 1853(b)(8); Loper Bright, 144 S. Ct. at 2255. But the statute is silent as to whether Atlantic herring fishers may be required to cover the cost of these observers. So NMFS promulgated a regulation requiring herring fishers to sometimes pay for the observers, at a cost of up to $710 per day. See Magnuson-Stevens Fishery Conservation and Management Act Provisions, 85 Fed. Reg. 7414, 7428 (Feb. 7, 2020) (codified at 50 C.F.R. pt. 648).
Two groups of Atlantic herring fishers challenged the NMFS rule in different courts, arguing that it was inconsistent with the MSA. The D.C. and First Circuit Courts of Appeals both upheld the rule under Chevron, but on different grounds. The Supreme Court granted certiorari, limited to the question whether Chevron should be overruled.
In an opinion by Chief Justice Roberts, the Court overruled Chevron. The Court first rehearsed Chevron’s two-step framework, under which courts must, at step one, assess whether Congress has spoken with clarity on the question at hand; “[i]f, and only if, congressional intent is ‘clear,’ that is the end of the matter,” and courts apply the statute as written. Loper Bright, 144 S. Ct. at 2254 (quoting Chevron, 467 U.S. at 842). But if the statute is “silent or ambiguous” on the relevant question, then courts must, at step two, “defer” to a “permissible” construction of the statute by the agency charged with its administration. Id. (quoting Chevron, 467 U.S. at 843).
The Court then highlighted the Federal Constitution’s Article III grant of power to courts to decide “Cases” and “Controversies,” and Chief Justice’s Marshall’s declaration in Marbury v. Madison, 5 U.S. 137 (1803), that “[i]t is emphatically the province and duty of the judicial department to say what the law is,” id. at 177. While the Court acknowledged having given “great respect” to agency statutory interpretations over time, respect was “just that”; agency constructions could “inform” a court’s interpretation of a statute, but not “supersede” it. Loper Bright, 144 S. Ct. at 2257-58.
The Court next turned to the APA, enacted by Congress in 1946 as the “fundamental charter of the administrative state.” Id. at 2261 (citation omitted). The Court focused on Section 706 of the APA, which states that, during judicial review of agency action, the reviewing court shall “decide all relevant questions of law” and “interpret constitutional and statutory provisions.” The Court found Chevron irreconcilable with this statutory command because the decision required courts to give “binding deference to agency interpretations,” including those that have been “inconsistent over time” and even where a “pre-existing judicial precedent holds that the statute means something else.” Id. at 2265 (emphasis in original). The Court also objected to Chevron’s requirement that courts defer to a “permissible” agency interpretation of a statute. In any case involving a statute, a court must determine the single best meaning of statutory language, using every tool of construction at its disposal. Id. at 2266. It therefore made “no sense” to talk about deferring to a “permissible” construction of a statute that differs from the one a court concludes is best. “In the business of statutory construction, if it is not the best, it is not permissible.” Id.
The Court rejected the common justifications for Chevron deference, including that agencies have subject-matter expertise courts lack, and that statutory construction often involves policymaking that should be performed by politically accountable branches rather than courts. Regarding expertise, the Court observed that courts routinely interpret statutes in complex or technical areas, aided by the parties, amici curiae, and (in cases involving agencies) the agencies that administer the statute. Id. at 2267. “Perhaps most fundamentally,” Chevron was “misguided” because “agencies have no special competence in resolving statutory ambiguities. Courts do.” Id. at 2266. Regarding policymaking, the Court pointedly rejected the view that statutory construction involves policymaking, calling it a “profound misconception of the judicial role.” Id. at 2268. By preventing courts from interpreting statutes in cases where agencies are involved, “Chevron does not prevent judges from making policy. It prevents them from judging.” Id.
Finally, the Court considered the stare decisis factors for whether Chevron should be overruled—including “the quality of the precedent’s reasoning, the workability of the rule it established, and reliance on the decision.” Id. at 2270 (cleaned up). As noted, the Court found Chevron’s reasoning to be incompatible with the APA. Id. In terms of workability, the Court criticized the “defining feature” of Chevron’s framework: the requirement of “statutory ambiguity.” Id. To the Court, “we are no closer to an answer” to the question whether a statute is sufficiently ambiguous to trigger Chevron deference “than we were four decades ago.” Id. And because the original two-step test was “indeterminate and sweeping,” the Court has had to create multiple preconditions, limitations, and exceptions, “transforming the original two-step into a dizzying breakdance.” Id. at 2271. As for reliance, the Court stated that, in light of its constant tinkering with and eventual turning away from Chevron—the Court had not applied it since 2016—and lower courts’ inconsistent application of it, it is “hard to see how anyone—Congress included—could reasonably expect a court to rely on Chevron in any particular case.” Id. at 2272.
In overruling Chevron, the Court emphasized that prior decisions relying upon Chevron to uphold agency interpretations of statutes remain good law, and that the overruling of Chevron was not, without more, a basis to overrule those decisions. Id. at 2273. In place of Chevron, courts must exercise “independent judgment in determining whether an agency has acted within its statutory authority, as the APA requires.” Id. Courts should still give “[c]areful attention” to the views of executive-branch agencies to “inform” courts’ judgment. But courts may no longer defer to federal agencies’ interpretation of the law “simply because the statute is ambiguous.” Id.
Reasons Why Massachusetts Courts Are Unlikely to Follow Loper Bright
Loper Bright is a watershed decision. It certainly will impact Massachusetts insofar as federal agencies will no longer receive deference from courts in interpreting federal statutes they administer. Massachusetts citizens will be affected when federal agency regulations that further define what constitutes discrimination under the Americans with Disabilities Act; or explain when a drug may be approved under the Food, Drug, and Cosmetic Act; or set acceptable limits for various pollutants under our federal environmental laws, are suddenly more vulnerable to judicial nullification.
But the decision also raises the question whether our state courts will follow the Supreme Court and cease deferring to state-agency interpretations of ambiguous state statutes. For several reasons, the answer to this question is likely no.
First, the Court’s decision was based on the federal APA, and the differences in language between the federal APA and our state analogue are significant, with the latter calling for more deference to agencies than the former. Although our state version of the APA, G.L. c. 30A, was enacted after the APA (in 1954) and patterned after it in some respects, it is far from an exact replica.[i]
Consider in particular the judicial review provisions of the federal APA, 5 U.S.C. § 706, and G.L. c. 30A, § 14. The Court in Loper Bright based its decision, in large part, on the language in Section 706 stating that the reviewing court “shall decide all relevant questions of law” and “interpret … statutory provisions.” 144 S. Ct. at 2260-66, 2272-73. That formulation does not appear in c. 30A, § 14. While Section 14 empowers state courts to set aside, modify, or remand a state-agency decision if it is “[i]n violation of constitutional provisions,” “[i]n excess of the statutory authority or jurisdiction of the agency,” or “[b]ased upon an error of law,” the provision also requires courts, in conducting this review, to give “due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” G.L. c. 30A, § 14(7).[ii] No such express directive appears in Section 706.
Given that our state courts usually attribute significance to differences in language between federal statutes and the state laws that are patterned after them,[iii] and given that the central basis for the Court’s decision in Loper Bright was language in the federal APA that appears nowhere in our state analogue, it seems unlikely that our courts will follow that decision.
Second, our state courts have not followed prior efforts by the Supreme Court to limit the power of executive-branch agencies, but instead have a long tradition of granting substantial deference to state-agency action, which is not strictly dependent on Chevron as the basis for the practice. For example, the Supreme Court has declined to defer to agency interpretations of statutory language on so-called “major questions” of economic or political significance, absent clear indication in the statute that that is what Congress intended.[iv] The SJC has not adopted a similar limiting doctrine, despite having recently decided several questions of comparable significance involving agency interpretations of state statutes.[v] As another example, the Supreme Court had largely limited Chevron deference to agency notice-and-comment rulemaking and formal adjudication. Loper Bright, 144 S. Ct. at 2268 (citing United States v. Mead Corp., 533 U.S. 218, 226-27, 230 (2001)). Our courts have not imposed a similar limitation.[vi] As a final example in a slightly different context, the Supreme Court has sharply limited the deference it gives to federal agencies’ interpretations of their own regulations, deferring only where the regulation is “genuinely ambiguous” after exhausting all tools of construction, and then only when certain other conditions are met.[vii] The SJC has explicitly noted that its deference in this sphere is less circumscribed, and more generous, than the Supreme Court’s.[viii]
Instead of following the Supreme Court down the path of limiting deference to agencies in various ways, the SJC has continued to adhere to its long tradition of deferring to agency action, in ways that are not strictly dependent on Chevron for the practice.[ix] Our courts tend not to defer to agencies as rigidly as Chevron and its progeny directed, with its various preconditions, formal two-step framework, and many exceptions. See Loper Bright, 144 S. Ct. at 2268-69, 2271-72. Instead, our courts tend to give substantial deference to reasonable agency interpretations of the statutes they administer, while reserving ultimate authority to invalidate agency action that is irreconcilable with the statute.[x] It seems unlikely that the SJC will depart from this practice, rooted as it is in longstanding precedent that does not depend on Chevron.
Third, to the extent some might argue that Loper Bright is partly based on constitutional considerations—in particular the separation of powers and the role of Article III federal courts to decide “Cases” or “Controversies”[xi]—the SJC has repeatedly signaled its willingness to part ways with the Supreme Court when interpreting the State Constitution. While the SJC is, of course, bound by the Supreme Court’s decisions on matters of federal constitutional law,[xii] decisions regarding the structural elements of the Federal Constitution do not bind state courts in interpreting analogous elements of their own constitutions, such as state constitutional separation-of-powers provisions.[xiii] Even if Loper Bright could be read to reflect constitutional considerations, our courts are unlikely to follow it, since they may chart their own course in interpreting the separation-of-powers principles in our State Constitution, and the caselaw regarding Article 30 of our constitution cannot be read to bar deference to agency interpretations of statutes.[xiv]
Fourth, our courts are likely to find the reasoning offered by the dissent in Loper Bright to be persuasive, since it aligns with Massachusetts’s current approach. See 144 S. Ct. at 2295-2310 (Kagan, J., dissenting). Justice Kagan’s dissent recognized that Chevron rested upon a presumption about congressional intent—that Congress would want executive-branch agencies, rather than courts, to resolve ambiguities or fill in gaps in the statutes the agencies administer because of their subject-matter expertise and accountability to the President, who answers to the public. Id. at 2294-95. Presumptions of this kind are common in interpreting statutes—such as the presumptions against retroactivity and implied repeal of earlier statutes, the rule of lenity for criminal statutes, and the canon of constitutional avoidance. Id. at 2297 n.1, 2308-09.
And, the public-accountability rationale for judicial deference is even stronger in Massachusetts. In contrast to the federal government’s unitary executive, where only the President is elected by the people, our State Constitution divides executive authority among five separate constitutional officers—the Governor, Attorney General, Secretary of State, State Treasurer, and State Auditor—all of whom are directly accountable to the people through popular election, and all of whom oversee agencies, boards, or divisions that engage in rulemaking and/or adjudication which is subject to judicial review. This means that, in Massachusetts, the people have an even greater say in the selection of the officials who take administrative action, and more opportunity to express their disagreement with such action at the ballot box.
Finally, Justice Kagan invoked stare decisis, noting that Chevron had proven quite workable, with empirical evidence suggesting that Chevron (as compared to de novo review) actually fosters agreement among judges and has a “powerful constraining effect on partisanship in judicial decisionmaking.” Id. at 2309 (citation omitted). Also, the reliance interest in Chevron was strong, since the Court had applied it to uphold agency interpretations of statutes in over 70 decisions, and lower federal courts had cited Chevron in over 18,000 cases; overruling Chevron will cause a “jolt to the legal system,” because Congress, federal agencies, courts, and regulated parties have ordered their affairs around Chevron for 40 years. Id. at 2307-08, 2310. And Chevron’s demise will prompt a wave of litigation challenging agency regulations and adjudications. Id. at 2310. These rationales from the dissenting opinion in Loper Bright are compelling, and many of them align with how Massachusetts courts have long granted substantial deference to state-agency action.
Conclusion
Ultimately, judicial deference to agency action in Massachusetts is so robust, and so longstanding, that our courts are unlikely to follow the Supreme Court’s decision in Loper Bright. Instead, our courts are likely to remain on their current path, continuing to defer to agency action, while reserving for the judiciary the power to vacate agency action that plainly exceeds legislative authority.
Tim Casey is the Chief of the Constitutional & Administrative Law Division of the Massachusetts Attorney General’s Office. This article represents the opinions and legal conclusions of its author and not necessarily those of the Attorney General’s Office. The author would like to thank Thomas A. Barnico, Robert L. Quinan, Jr., Kimberly Parr, John R. Hitt, and Richard Harper for their invaluable feedback on and editorial assistance with this article.
I. See, e.g., Palmer v. Rent Control Bd. of Brookline, 7 Mass. App. Ct. 110, 115 (1979) (citing William J. Curran & Albert M. Sacks, The Massachusetts Administrative Procedure Act, 37 B.U. L. Rev. 70, 76 (1957)).
II. The provision for judicial review of regulations, G.L. c. 30A, § 7, does not contain similar express language mandating deference—instead it merely cross-references our declaratory judgment statute, G.L. c. 231A—but the caselaw regarding that provision makes clear that judicial review of regulations is extremely deferential to agencies. See, e.g., Massachusetts Fed’n of Teachers v. Board of Educ., 436 Mass. 763, 771 (2002) (properly promulgated regulation “has the force of law” and “must be accorded all the deference due a statute”; party challenging regulation must establish “the absence of any conceivable grounds upon which the rule may be upheld”; court applies “all rational presumptions in favor of the validity of the administrative action and not declare it void unless its provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate”) (cleaned up).
III. See, e.g., Commonwealth v. Resende, 474 Mass. 455, 466 (2016) (“Differences in language between a State statute and a previously enacted, analogous Federal statute ‘reflect a conscious decision by the Legislature to deviate from the standard embodied in the Federal statute.’” (quoting Globe Newspaper Co. v. Boston Retirement Bd.,388 Mass. 427, 433 (1983))). In contrast, where a state statute “largely replicates” a federal law, our courts consider federal courts’ interpretation of the federal statute “highly persuasive” in interpreting the state statute. Commonwealth v. Braune, 481 Mass. 304, 308 (2019) (citation omitted). Here, Section 14(7) does not “largely replicate” Section 706, but instead differs materially as to judicial review.
IV. West Virginia v. EPA, 597 U.S. 697, 720-24 (2022); King v. Burwell, 576 U.S. 473, 486 (2015).
V. See, e.g., Robinhood Fin. LLC v. Secretary of the Commonwealth, 492 Mass. 696, 707-14 (2023) (upholding regulation imposing fiduciary duty on broker-dealers); Zoning Bd. of Appeals of Milton v. HD/MW Randolph Ave., LLC, 490 Mass. 257, 262, 264-67 (2022) (upholding agency adjudicatory rule for when a local zoning board’s conditions on an affordable-housing project impermissibly render the project “significantly more uneconomic”).
VI. See, e.g., Fairhaven Hous. Auth. v. Commonwealth, 493 Mass. 27, 31-33 (2023)(upholding agency sub-regulatory guidelines imposing limits on compensation for executive directors of local housing authorities); Genworth Life Ins. Co. v. Commissioner of Ins., 95 Mass. App. Ct. 392, 396-97 (2019) (upholding agency bulletin as a reasonable interpretation of agency’s statutory authority).
VII. Kisor v. Wilkie, 588 U.S. 558, 573-79 (2019).
VIII. DeCosmo v. Blue Tarp Redev., LLC, 487 Mass. 690, 700 n.22 (2021).
IX. Even after Loper Bright, the SJC has reiterated that it gives substantial deference to an agency’s reasonable interpretation of a statute it administers. Hartnett v. Contributory Retirement Appeals Bd., 494 Mass. 612, 616 (2024); S&H Indep. Premium Brands E., LLC v. Alcoholic Beverages Control Comm’n, 494 Mass. 464, 467 (2024). And one SJC Justice commented at a recent oral argument that, notwithstanding Loper Bright, deference to agency interpretations of statutes is “still alive and well here in the Commonwealth.” Garcia v. Executive Office of Hous. & Livable Communities, No. SJC-13513,webcast of oral argument at 11:15 (Mass. Sept. 9, 2024) (question by Georges, J.).
X. See, e.g., Craft Beer Guild, LLC v. Alcoholic Beverages Control Comm’n, 481 Mass. 506, 511-12, 519-23 (2019) (acknowledging deference to agency interpretations, but stating that “deference does not suggest abdication,” and “an incorrect interpretation of a statute is not entitled to deference”); Souza v. Registrar of Motor Vehicles, 462 Mass. 227, 228-30 (2012) (noting substantial deference and identifying circumstances where it is particularly warranted, while also stating that “the duty of statutory interpretation rests ultimately with the courts” (citation omitted)); Box Pond Ass’n v. Energy Facilities Siting Bd., 435 Mass. 408, 416 (2001) (“An agency’s interpretation of its own regulation and statutory mandate will be disturbed only ‘if the interpretation is patently wrong, unreasonable, arbitrary, whimsical, or capricious.’” (citation omitted)); Manning v. Boston Redev. Auth., 400 Mass. 444, 453 (1987) (“We give substantial deference to the construction placed on a statute or an ordinance by the agency charged with its administration.” (citing Amherst-Pelham Regional Sch. Comm. v. Department of Educ., 376 Mass. 480, 491-92 (1978))). This has led some to suggest that Massachusetts is not a “Chevron” state at all. SeeLuke Phillips, Chevron in the States? Not So Much, 89 Miss. L.J. 313, 338 & nn.93-97 (2020). That is not quite accurate—the SJC applied Chevron’s two-step framework in Goldberg v. Board of Health of Granby, 444 Mass. 627 (2005), and has applied it occasionally since then, see Craft Beer Guild, 481 Mass. at 519-23—but it does suggest that our courts apply a different form of deference that is not strictly dependent on Chevron. When the SJC has vacated agency action, it has generally been because the agency’s approach was irreconcilable with the statute’s plain language, e.g., In Re Estate of Mason, 493 Mass. 148, 151-66 (2023); DiMasi v. Secretary of the Commonwealth, 491 Mass. 186, 191-99 (2023), or because the agency failed to observe the requisite procedural formalities in taking the challenged action, e.g., Carey v. Commissioner of Correction, 479 Mass. 367, 371-74 (2018).
XI. To be sure, the crux of Loper Brightis that Chevron is inconsistent with the federal APA. 144 S. Ct. at 2260-66, 2272-73. Only Justice Thomas’s concurring opinion asserted that Chevron also violates the constitution. Id. at 2274-75 (Thomas, J., concurring). And Justice Gorsuch’s concurring opinion, which focused on why stare decisis should not stop the Court from overruling Chevron, noted constitutional concerns with the decision. Id. at 2283-86 (Gorsuch, J., concurring).
XII. E.g., 1A Auto, Inc. v. Director of the Office of Campaign & Political Fin., 480 Mass. 423, 428 (2018).
XIII. See generally Scott L. Kafker, State Constitutional Law Declares Its Independence: Double Protecting Rights During a Time of Federal Constitutional Upheaval, 49 Hastings Const. L.Q. 115, 128-29 (2022) (suggesting, before Loper Bright, that state courts need not follow the Supreme Court if it overrules Chevron, since any such decision might be based on the structural elements of the federal constitution, to which state courts are not bound in interpreting their own constitutions).
XIV. It is difficult to imagine that our SJC would find deference to agency interpretations of statutes to violate Article 30, given its longstanding application of such deference as a matter of state law, and its recognition that “some overlap [of the legislative, executive, and judicial functions] is inevitable, and ‘absolute division of the three general types of functions is neither possible nor always desirable.’” Gray v. Commissioner of Revenue, 422 Mass. 666, 671 (1996) (citation omitted).
