The End of Chevron Deference: A New Chapter in Public Participation

Iota Intel Analysis

November 1, 2024

A Shift in Power – The Way It Was Meant to Be

The U.S. Constitution establishes a separation of powers: Congress makes the laws, the executive branch implements and enforces them, and the judiciary interprets them. Yet, these roles often blur, raising important questions:

1. What happens when statutes are silent or vague on broad, impactful matters?

   
   

2. Who decides what Congress intended if the law could not foresee modern challenges?

   
   

3. How do we ensure agencies implement the law without overstepping into making it?

   
   

4. How can we guarantee a fair and transparent regulatory process?

For forty years, the Chevron doctrine empowered agencies to interpret vague laws they enforced, as courts deferred to agency expertise on ambiguous statutes. This deference created a regulatory framework where agencies often had the final word on a law’s meaning, allowing them to fill gaps Congress left open. Supporters of Chevron argue it enabled responsive, adaptive governance, essential in fields like technology, healthcare, and environmental protection. For instance, Chevron allowed the FCC to regulate emerging technologies like broadband, while the EPA could address greenhouse gases under the Clean Air Act, even though Congress had not anticipated climate change when drafting the law. This flexibility lets agencies bridge the gaps left by legislative ambiguity, often applying technical knowledge that courts or Congress lacked.

However, critics argue that Chevron deference led to unchecked agency power. Opponents further contend that agencies may lack a complete understanding of the practical challenges that regulated parties and the public face in implementing complex regulations, often resulting in rules that are difficult or costly to follow. By deferring to agencies, courts allowed unelected officials to craft rules with binding authority, sometimes in ways Congress may not have fully intended. This overreach, they claim, undermines the constitutional principle that only Congress should make laws, eroding accountability and public trust. By enabling agencies – rather than Congress or the courts – to define the meaning of laws, Chevron created a regulatory environment where broad social and economic impacts were sometimes shaped outside the legislative process.

A New Era Begins

On June 28, 2024, the U.S. Supreme Court overturned Chevron in Loper Bright Enterprises et al. v. Raimondo. This landmark decision resets the balance of power, reinforcing the constitutional roles of each branch. While it does not strip agencies of their enforcement and administrative authority and does not apply to previously settled regulatory activity, it does raise the bar for judicial review of future regulations. Agencies must now ensure they engage in a thorough, transparent process to justify interpretations of ambiguous statutes, knowing courts will no longer automatically defer to their expertise.

This shift could benefit the public and regulated parties by encouraging a more transparent rulemaking process. With courts acting as a more active check, the public has an expanded opportunity to shape agency actions through meaningful engagement in the comment submission process. While the Administrative Procedure Act (APA) already mandates public notice and comment periods, a post-Chevron world makes thoughtful, data-backed comments even more influential. Agencies must now carefully consider and address public input and concerns, as they will become part of the official record which can and will be scrutinized in court if a rule is challenged.

The New Dynamic

This shift creates a more balanced dialogue between regulators and the public. Agencies must now:

• Demonstrate statutory authority for new rules,

• Address substantive public comments thoroughly,

• Justify interpretations without relying on automatic deference, and

• Consider practical implementation challenges if documented in public comments.

For regulated parties and the public, this means:

• Their public comments may have greater weight in shaping regulations,

• There is a stronger position to challenge questionable interpretations in court,

• Agencies must engage in transparent decision-making when publishing binding requirements.

  
  

The Way Forward: A Practical Approach

Success in this new regulatory environment requires a proactive approach during rulemaking. Regulated parties of all sizes, not just large corporations and industry trade associations, can – and should – use this opportunity to make their voices heard by submitting well-constructed comments that reflect real-world impacts. This means:

1. Get Engaged

   • Monitor proposed rules and let your voice be heard! Consider submitting a public comment letter (in most cases, agencies provide the public with 30-60 days to submit comments). Iota Intel is happy to assist you!

   
   

2. Raise Concerns and Suggest Alternatives

   • Support your positions with data and real-world anecdotal examples, and provide agencies with thoughtful, constructive feedback.

   
   

3. Understand the Impacts

   • Know the full impact of new rules and guidance on you, your organization, and your industry. The devil is in the details, and while something may look simple on the surface, it may actually be more complicated and nuanced. Sometimes a rule is easy to understand, but others require a granular, detailed assessment of each and every nuance to ensure you are compliant and avoid penalties. Here again, Iota Intel provides excellent analysis that goes well beyond your typical summary.

How Iota Intel Can Help

At Iota Intel, we specialize in helping regulated parties and the public navigate complex regulatory landscapes. We provide clarity on the details of proposed and final agency guidance, and we empower our clients to effectively participate in the comment submission process. With the heightened need for clear, transparent rulemaking, we can craft comment letters that convey your position and raise valid concerns in a thoughtful, constructive manner, which agencies appreciate. It helps you become a valued, trusted partner in the process. We offer various packages to suit your needs, from helping craft a basic letter that responds to specific proposals to engaging in an iterative process with multiple drafts; and we can submit the letter on your behalf if you wish.

Once a rule is finalized, we can provide critical in-depth analysis to ensure your teams clearly understand all the nuances of what agencies expect from you.

In this post-Chevron era, engaging with the process early and effectively can make all the difference. Iota Intel is here to help you shape the future of regulations, ensuring your voice is heard and that regulatory outcomes are both legally sound and practically feasible.

The end of Chevron deference is not just a legal change - it is an invitation to build a more balanced and effective regulatory system. The question now is: How will you participate in shaping this new chapter? Contact Iota Intel to learn more about how we can help.

Contact Iota Intel