“If the statute doesn’t say they can’t regulate, then they’re going to need to lobby Congress to get it to regulate. It will also ensure that agencies are acting within their own statutory authority.”
— Karen Harned President Harned Strategies LLC Director of Litigation and Legal Policy National Association of Wholesaler-Distributors’ (NAW) Legal Policy Center
litigants will be able to challenge those with the new framework and without having to worry about Chevron deference.”
Monaghan points out that deference to agencies hasn’t entirely disappeared, and that there will still be instances where it will be appropriate for a court to give extra weight to an agency’s interpretation of a statute. “Courts will still have to defer to agencies on fact fi ndings, and where Congress plainly leaves room for an agency to exercise some policymaking discretion, courts aren’t going to have a license to second-guess that,” she explains. “In terms of just how far those limitations extend, those details will have to be fl eshed out in the lower courts over the coming years. It’s defi nitely something that we will be watching.”
Limiting Agency Power Charlie Souhrada, vice president,
regulatory and technical affairs, for the North American Association of Food Equipment Manufacturers (NAFEM), says that although it’s too early to determine the specifi c impacts of Loper Bright, the 6-3 decision limits the power of agencies and opens new doors to challenge regulatory overreach. While this is a signifi cant shift for manufacturers and the regulatory landscape, Souhrada says it doesn’t mean regulations on the books get overturned. “Instead, it calls for greater accountability and
20 FEDA News & Views
more legal challenges for agencies like the DOE (Department of Energy), EPA and others, as regulated entities, like NAFEM and other industry stakeholders, push against the agencies more often when the boundaries of their statutory authority are suspect,” Souhrada says. Monaghan says Loper Bright is likely to have an impact in a few general categories. For example, agencies won’t be able to “stretch” their legal authority on proposed or recently released rules that they previously would have only been able to defend under the cover of Chevron deference. Because it extends the timeframe within which certain regulated entities can challenge a rule, Corner Post could lead to a renewed effort to seek judicial review on rules that have been longstanding. “It’s also important to keep in mind that SCOTUS explicitly stated that if the rule was previously upheld under Chevron,” Monaghan explains, “the decision is still entitled to statutory stare decisis. So, there will be some limits on that; we’ll have to see how that all plays out in the lower courts.”
Potential Impacts for Distributors
and Dealers Karen Harned, president of Harned Strategies LLC and director of litigation and legal policy for the National Association of Wholesaler-Distributors’ (NAW) Legal Policy Center, says the
organization’s position is that “less regulation is better” and that Loper Bright will prevent agencies from being “super creative” with statutes. “If the statute doesn’t say they can’t regulate, then they’re going to need to lobby Congress to get it to regulate,” Harned says. “It will also ensure that agencies are acting within their own statutory authority.”
Over the last couple of decades, Harned has witnessed agencies getting increasingly loose with their decisions because they knew they had the thumb on the scale when it came to Chevron deference. “Now with the court saying they don’t have that [power] anymore, [agencies] are going to have to be more careful,” Harned says. “They may try and do things that are questionable, but on [decisions] that they really care about, [agencies] will do a deep dive and ensure they have good justifi cation and that that can tie it to the statute.” Overall, Harned says the
SCOTUS decision is a “very positive development for the dealer and distributor community,” which can expect less fl ip-fl opping on legal decisions. Enterprises that feel they are being treated unfairly will also now have more options to challenge the decisions in court and potentially win.
“In terms of the immediate impact,” Harned says, “dealers can expect to see less unsettlement in the law, and they also won’t have to worry about getting whipsawed on key issues from one administration to the next.”
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