Some of the nation’s biggest legal and lobbying firms are telling industry clients: Get ready now to win in court against the government agencies trying to regulate you.
The Supreme Court — stacked with three conservative Donald Trump-era justices — is poised to strictly limit, or overturn entirely, a long-standing legal precedent that gives agencies discretion to regulate where laws are ambiguous.
As outside think tanks, public interest groups and Democratic lawmakers ring alarm bells that overturning Chevron deference could sharply curtail government attempts to regulate everything from pollution to public health, big industry law firms are positioning themselves for the windfall.
“Most notably, if the Court overturns or limits Chevron, it will be easier to successfully challenge agency actions, including individual decisions such as permitting and other authorizations,” the firm Holland & Knight, which also lobbies for clients like Amazon and renewable energy companies, wrote in a blog post about the pending ruling.
The government’s “rate of success is likely to change to the detriment of the government as a result of the Court’s decision,” the post reads. The next paragraph is a “How Holland & Knight can help” pitch about how the firm “can assist regulated entities.”
Skadden, another big law firm, wrote in September, “New limits on agency power may create opportunities for businesses to challenge unfavorable regulations,” in an ad to potential clients last fall, adding that “the potential demise of Chevron and new procedural avenues for questioning agency proceedings, creates fresh opportunities for businesses to challenge government action.”
The law firms’ marketing posts show the nation’s most powerful private forces circling around what would be a seismic change in how the federal government operates — and another major win for the conservative movement, which made a sharp about-face against Chevron over the past decade following, in part, sweeping Obama-era climate regulations.
There is clear consensus across the board that heavily regulated industries — like oil and gas, energy and Big Tech — would have better chances of getting their way if Chevron were overturned.
“I do think you will see that challenges to regulations are more likely to be successful,” Bush-era Environmental Protection Agency political appointee and now energy industry lobbyist and attorney Jeff Holmstead told NOTUS.
Both Skadden and Holland & Knight also noted potential downsides for clients to the deregulatory regime many expect would come in a post-Chevron environment. It “also may open the door to attacks on long-standing rules that businesses find helpful and predictable,” Skadden wrote of a possible ruling.
“Some may want to bring challenges, some may be concerned about the possibility of challenges that could undo rules that help to create a stable regulatory environment,” Holland & Knight attorney Amit Agarwal told NOTUS. “Our message to clients is, ‘This could be big, and we have the full range of capabilities to help you navigate this space, and not just litigation.’’
Critics of overturning Chevron say the goal of getting the relevant cases before the Supreme Court has always been an effort to tip the scales of justice toward industry interests and are quick to note that Congress rarely writes laws to the specificity agencies require.
“Certain regulated industries resent the constraints these regulations place upon them,” a group of Democratic senators wrote to the Supreme Court. “These industries have spent billions to undo these constraints, through massive public-relations operations, the purchasing of political capital through campaign-finance spending, and cases such as this one.”
Firms like Holland & Knight clearly have seen an entry point to increase their presence.
Agencies “just need to be more persuasive in the regulatory than they currently attempt to be, and that presents a lot of potential opportunity for well-situated clients,” Holland & Knight attorney Andy Emerson told NOTUS.
As for whether these clients will seize the moment to take on regulations, it’s still a waiting game: “I think we are at a point where people are thinking about whether they might want to do that, but we’ll have to see what the court does,” Emerson said.
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Claire Heddles is a NOTUS reporter and an Allbritton Journalism Institute fellow. Anna Kramer, a reporter at NOTUS, contributed to this report.