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Evaluation Video

On Demand

Diminishing Judicial Deference to Federal Agency Decision-Making: The Upsides and Downsides for Your Clients

Wednesday, July 24, 2024
CLE: 1.0 Credit Hours
The Supreme Court and other courts have recently issued several opinions diminishing judicial deference to federal agencies – e.g., West Virginia v. EPA (S.Ct.) (the “major questions doctrine” case); Alliance for Hippocratic Medicine v. FDA (5th Cir.) (the “abortion pill” case). And in the 2023-24 term (which will end a few weeks before the 2024 Annual Meeting), the Court is expected to overrule its most significant administrative law decision, Chevron v. NRDC (holding that courts should defer to an agency’s “reasonable” construction of an ambiguous statute even if the agency’s construction is not the best one). On the one hand, diminishing judicial deference to agency decision-making may benefit corporate clients by evening the playing field when they challenge agency decisions that adversely affect them. On the other hand, such diminishing judicial deference may also benefit public advocacy organizations in challenging agency decisions that benefit corporate clients (e.g., product and permit approvals).

This program will (1) analyze recent decisions affecting judicial deference to agencies; and (2) discuss ways in which corporate clients can navigate the potential upsides and downsides of these decisions.

Learning Objectives:

  • Federal agencies are not omnipotent. Regulated parties can (and often do) successfully challenge federal regulations and other federal agency actions in court.
  • When public advocacy groups challenge a federal agency action that directly benefits a specific corporation, that corporation may intervene in the case to defend the agency action.
  • Judicial review of agency action is generally limited to the record on which the agency based its decision. So it is important for regulated parties to create the best possible record at the agency when they anticipate that they may have to challenge an agency action.