– Opinion –
In case you missed it, the Supreme Court handed down a series of precedent-busting decisions last week, including one that overturned the 1984 decision in Chevron USA v. Natural Resources Defense Council. The Chevron decision held that federal courts will defer to agency interpretations of the law as long as the interpretation is reasonable. Last Friday’s decision gave federal judges more leeway to question agency decision-making. This decision has important implications for food safety.
To understand why, consider that federal food safety agencies, like federal agencies in general, are not the most dynamic organizations. Risk aversion tends to permeate the organizational culture. Advocates of regulatory reform, whether pro-consumer or pro-business, know that simply disrupting the status quo is often the biggest obstacle to their plans.
Federal agencies often do not take action until extraordinary circumstances, such as the death of a child, require it. In 1994, the families of four children who died in an outbreak of E. coli infections from Jack in the Box hamburgers successfully pressured the USDA Food Safety and Inspection Service (FSIS), led by then-Administrator Michael Taylor, to change beef inspection rules. In the fall of that year, FSIS announced that it would begin testing raw ground beef from federally inspected facilities and retail stores for E. coli O157:H7. If a sample tests positive for the pathogen, FSIS would consider it “adulterated” under the Federal Meat Inspection Act and take whatever administrative action it deems necessary to protect consumers from adulterated products, including withdrawing federal inspectors and shutting down plants.
FSIS had never before attempted to exercise its authority in this way against the beef industry. Not surprisingly, the industry sued. In Texas Food Industry Association v. Espy, the plaintiffs argued, among other things, that beef contaminated with E. coli “is injurious to health only if improperly cooked.” Thus, the plaintiffs argued, FSIS could not lawfully interpret the statute’s “impurity” to include pathogens in raw meat.
The federal judge presiding over the case didn’t spend much time explaining why the industry’s interpretation was wrong. Instead, he wrote in his opinion that “interpretations by any officer or agency charged with enforcing a statute deserve considerable deference” and that “[r]”Whether or not a court would have reached the same interpretation, if an agency’s interpretation is reasonable, the court must defer to it.” In other words, the court may not have interpreted the law’s word “contaminant” to include E. coli as FSIS did, but the court followed FSIS’ interpretation because it was a “reasonable” interpretation. This is the Chevron principle, and it makes sense insofar as it is regulators who work every day to enforce the laws passed by Congress.
By respecting federal agencies’ statutory interpretations when raw beef contained E. coli O157:H7, the policy was a clear success. Illnesses associated with E. coli O157:H7 plummeted from 2.6 cases per 100,000 people in 1996, shortly after the Espy decision paved the way for FSIS to act, to 1.1 cases per 100,000 people in 2012. And despite protests from industry plaintiffs that “testing” for E. coli was cost-prohibitive, no major disruptions to the beef supply occurred. By all accounts, FSIS got it right.
But if the industry filed a similar lawsuit today, federal judges would not have to defer to FSIS’s interpretation of the statute, at least to the same extent. Last Friday, the U.S. Supreme Court explicitly rejected Chevron in its partisan decisions in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce. Those cases hinged on whether another federal agency, the National Marine Fisheries Service, could interpret its authorizing statute to force Atlantic herring fishermen to pay a portion of the costs of boarding federal observers who monitor compliance with regulations. In ruling that the agency could not require these payments, the Supreme Court made clear that federal judges do not have to defer to an agency’s reasonable interpretation of the statute. Writing the majority opinion, Chief Justice John Roberts argued that “Chevron’s presumption is wrong because agencies do not have special authority to resolve ambiguities in statutes. Courts have that authority.”
In other words, federal judges are in a better position than FSIS to determine what “contaminant” means under the Federal Meat Inspection Act and to rule on the myriad questions of legal interpretation that food company lawyers might raise in hopes of saving their clients regulatory compliance costs. This new legal landscape creates more uncertainty for federal agencies. Depending on the judge, even a perfectly “reasonable” interpretation of the law may not be enough. A court loss could force regulators to start over, undoing years of rulemaking work. As a result, many food safety advocates worry that the administration will become even more nervous.
This is bad news for consumers, who are facing a litany of preventable harm in our food system not because federal regulators are making bad policies but because they’re doing nothing at all. By rejecting the Chevron decision, the Court made it easier for industry to fight regulations it doesn’t like. Indeed, this is why conservative legal groups that received millions of dollars from the famously libertarian petrochemical billionaire Koch brothers backed the fishermen in their challenge to Chevron.
Critics of the Chevron principle argue that Congress, not the executive branch, should decide major issues of public policy. They argue that overturning the Chevron principle would force Congress to pay more attention to legislation, perhaps making details such as the definition of “adultery” in food more explicit. However, a study of state legislatures found that the degree to which state courts defer to state agencies’ interpretations of state law does not affect “legislative productivity,” as measured by the number of words in laws passed by state legislatures. Rather, the greater the degree of judicial oversight, the less legislation there seems to be. Thus, reduced judicial deference to federal agencies would likely shift the balance of power to the judiciary rather than the legislature, and democratic accountability would likely decrease as regulators answerable to the president cede power to judges with life tenure.
Fortunately, there may be a ray of hope. Food safety advocates have also challenged agency interpretations of the statute, and lost in the Chevron case. For example, a federal court rejected a challenge to the US Food and Drug Administration’s final rule formalizing the agency’s “secret GRAS” system, whereby the agency interpreted the Federal Food, Drug, and Cosmetic Act’s “generally recognized as safe” (GRAS) exception to allow food companies to self-certify the safety of new chemicals, without requiring disclosure. But it remains to be seen to what extent public interest lawyers will be able to challenge agency inaction of this kind as violating the agency’s only “correct” interpretation of the agency’s authorizing statutes.
In the meantime, industry challenges, or the threat of industry challenges, may deter some agencies from undertaking rulemaking. Food safety regulators should not cave in. Regulations such as the FSIS proposed rule to implement Salmonella product standards in poultry and the FDA final rule on food traceability have broad public support and are critically needed now. In this new and uncertain legal environment, consumers must demand more from federal regulators.
We also need to not expect too much from the CEOs and corporate lawyers who are responsible for obstructing consumer protections. Though their efforts seem misguided today, the people who fought to stop FSIS from eliminating E. coli O157:H7 from our burger meat weren’t evil misanthropes. They were simply trying to fulfill their duty under the law: to vigorously advocate for their customers and, ultimately, their shareholders. Fortunately for us all, they failed. But the Supreme Court’s decision to overturn Chevron creates new opportunities for narrow corporate interests to be prioritized over the broader public interest, including when it comes to food safety.
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