The construction industry and other market watchers continue to assess the potential impacts of the June 28 US Supreme Court ruling Loper Bright decision, but there is a general consensus that the ruling could have a stifling effect on the ability of federal agencies to develop and enforce regulations.
But they differ in their perceptions of the court’s 6-3 ruling, which struck down the law Chevron doctrine that has directed courts to defer to a federal agency’s rulemaking expertise when statutory language is unclear or ambiguous.
Industry experts say the ruling could ensure the agency’s regulations come closer to lawmakers’ intent, while environmental and public health advocates say they anticipate a flurry of legal challenges that could result in fewer environmental and health protections and a possible destabilization of the regulatory environment.
Steve Hall, executive vice president of the American Council of Engineering Cos., describes the ruling as “a double-edged sword.”
He says it could allow groups like ACEC, which represents the interests of design firms, to challenge regulations that go beyond an agency’s legal authority under a given law, but it could also lead to judicial instability and uncertainty and regulations for member companies. “The decision definitely creates for organizations like ACEC a new lane to challenge [regulatory overreach] but we have to be careful how we do it, because it could create a parallel opportunity for instability.”
Sean Donahue, a partner at Donahue, Goldberg & Herzog, who has represented parties from environmental and public health organizations in numerous major environmental and clean energy cases at the Supreme Court and federal appeals courts, said in a press call that although it is not clear how the judiciary will review the cases going forward, “there is no doubt” that the Running Man The decision will encourage “a massive effort by parties that are subject to regulation for their pollution or many other areas of regulation to challenge long-established policies, and how that plays out is really important.”
He added that the ruling “overturned 40 years of precedent based on dozens of Supreme Court decisions, many of them unanimous, and hundreds of thousands of lower court decisions.”
Some groups say the ruling could create more stability for the regulated community, not less. Kristin Swearingen, vice president of legislative and policy affairs for Associated Builders and Contractors, said the decision will make it harder for each new administration to “engage in incessant flip-flopping on issues … leading to unmanageable uncertainty for the business community”.
Leah Pilconis, general counsel for the Associated General Contractors of America, said in a statement that going forward, Congress will likely face more pressure to be specific and clear in writing legislation. “You can simply, [it] “He will be pressured to leave little to be interpreted by federal agencies,” he says. “On the other hand, agencies will have to provide sound legal justifications for their rules and strictly follow the direction of Congress to pass judicial review.”
The full implications are still unknown
A possible test case of the fall of Running Man is currently pending review by the federal appeals court in Washington, DC in a lawsuit filed last month by the US Chamber of Commerce, AGC and the National Waste Recycling Association. It challenges the US Environmental Protection Agency’s designation of two types of PFAS chemicals as hazardous under the nation’s Superfund law, officially the Comprehensive Environmental Liability, Compensation and Response Act (CERCLA).
AGC’s Pilconis says that Running Man the ruling “bodes well” for the case.
The EPA designation “is an interesting rule to evaluate because it is the first time that the EPA has used Section 102 of CERCLA to designate substances as hazardous,” says Jessica Rosell, a partner at Lathrop GPM LLP specializing in litigating PFAS cases,” I think there’s a real opportunity for al Running Man decision to involve how courts that are evaluating these challenges will review the agency’s interpretation of Section 102 … and whether the EPA was correct or reasonable in its assessment. [if] these substances deserved a designation of dangerous substances”.
Environmental lawyer Donahue says Congress could overhaul the Administrative Procedures Act, the law that underpins the operation of government, by adding specific language that provides legal deference to the expertise of federal agencies during judicial review of challenged regulations .
“This may be necessary, especially if this onslaught of challenges proves to be as destabilizing as many of us fear,” he says.
