We offer below our preliminary impressions of the collective implications of significant decisions released by the U.S. Supreme Court in the closing days of its 2023 term. Please join us on July 23 at 2:00 p.m. Eastern for a webinar, Key Environmental Takeaways from the 2023-2024 U.S. Supreme Court Term, where we will elaborate further on these issues. We anticipate issuing additional written analyses in the coming days.
The final days of the U.S. Supreme Court’s 2023 term saw the release of several decisions that may – or may not, depending on one’s perspective and desired strategy – hold significant implications for administrative law practice as well as the interpretation and enforcement of environmental and natural resource law (among other areas of law). These include Loper Bright Enterprises v. Raimondo, Relentless, Inc. v. Department of Commerce, Securities and Exchange Commission v. Jarkesy, and Corner Post, Inc. v. Board of Governors of the Federal Reserve System, along with Ohio. v. Environmental Protection Agency (in which B&D successfully represented a petitioner in securing stay of the U.S. Environmental Protection Agency’s (EPA) Good Neighbor Rule). Major media outlets have covered each case and its potential ramifications at a high level. B&D provided summaries of these cases earlier this year in our Litigation Look Ahead series.
While each case may hold unique implications on its own, in this overview we highlight some of the potential impacts the cases could have when taken collectively. While the long-term impacts are unknown and may play out in various ways depending on the statute, venue, and case in question, these decisions and others in the 2022 and 2023 Supreme Court terms have continued a trend by the Court towards deregulation at the federal government level and consolidation of authority in the judicial branch to adjudicate regulatory questions. This poses both challenges and opportunities for the regulated community.
Each regulated entity should reevaluate, in a holistic manner, its regulatory and litigation strategy – including active or recently-concluded rulemaking challenges, enforcement actions, and litigation – as these recent cases may present new threats and opportunities. U.S. federal and state regulators – as well as environmental and other NGOS – are no doubt doing the same.
In partnership with our deep air, water, waste, chemical, and natural resource (among other) regulatory practice areas, B&D’s litigators are actively involved in cases in courts nationwide, including the U.S. Supreme Court, where we recently secured a victory for a natural gas pipeline client in Ohio v. EPA relating to the CAA and are preparing to argue a CWA case in the Court’s upcoming fall term for the City and County of San Francisco. B&D regularly assists clients with all manner of state and federal administrative law proceedings, including rulemaking challenges and other litigation.
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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