b'LEGALLY SPEAKINGContinued from page 40One thing that were really hoping for is thatpost-Chevron landscape, according to Sharma, [Loper Bright] will lead to less pendulum swingingso they will be trying to bolster their arguments depending on whos in office, Sharma said.too.A second ruling One unintended consequence of Loper Bright is Just days after Loper Bright, the Supreme Courtthat agencies may rely more on recommendations ruled in Corner Post v. Board of Governors ofrather than regulations, which would be more the Federal Reserve System that the six-yeardifficult to challenge, Petersen said.window to challenge an agency regulation startsAnironiceffectmaybethatagenciesnow when a plaintiff is injured by the rule, rather thanregulate more through guidance again, Petersen when the regulation was finalized. In other words,said. If theyre afraid the regulation is going to get builders that are newly impacted by longstandingstruck, then theyll use guidance, which is harder regulations may now have the chance to challengeto challenge, because theyll say, Well, thats not them. binding as a matter of law.Together, these rulings open up established rulesLaws vulnerable to challengeto new scrutiny, and this time, agencies will notThe Loper Bright decision will likely come into play receivethesamedeferencetheyhadundermost in cases where an administration is seeking Chevron.Thatlikelymeanstheconstructionto advance an agenda, and the underlying laws industry will dispute laws they previously thoughtare not very clear, said Petersen. werentworththeeffort,saidattorneyCurtisIn particular, he expects regulations based on Moore, partner at Atlanta-based Fisher Phillips. Ifmore modern concepts of environmental law and an employer has a disagreement with the agencyenvironmentaljusticetobechallenged,such over an interpretation, in the past, we might say,as those dealing with stormwater, the National Well, this is a pretty uphill battle, given that theEnvironmental Policy Act and the Endangered agency gets deference to its interpretation. NowSpecies Act.there really isnt that thumb on the scale, so to speak, Moore said. The Clean Air Act and the Clean Water Act and all Legal changes post-Chevron these laws, a lot of these were written in the 70s. Congress will likely pass more detailed laws goingWell, nobody contemplated, much less put into the forward as a result of Loper Bright, according tolaw, things such as, How do you address climate attorney Rafe Petersen, partner at Miami-basedchange and how do you address environmental Holland&Knightandmemberofthefirmsjustice? Petersen said.Chevron Deference Working Team.Some OSHA regulations, like a pending heat Whennewadministrationscomein,theystandard, may also be vulnerable because the typically want to undo the work of the previousagencytendstointerpretitspowersbroadly, administration, but now, rather than new agencyaccording to Moore. Also up for legal challenge appointees interpreting laws differently, Congressisitspositionthattheagencycanrecord must amend those laws in order to advance ainterviews without permission of the employee or new agenda. management official, which contradicts an earlier interpretation from the 90s.ItusedtobetheCongress,Ithink,feltlikeForbuildersinwarmerpartsofthecountry, they were doing a favor by drafting a relatively[the heat standard is] almost always going to vague law that would give the agency wigglebe triggered, and its going to have a big impact room,Petersensaid.Nowwiththecurrentonhowyoucanscheduleyourworktobe jurisprudenceunlesstheresarealclearperformed, Moore said. I think those are the statement and Congress wanted the agencies totypes of regulations where industry groups and do it, the courts are going to say, Well, no, youemployers are going to decide its worth the legal dont have authority, go back to Congress if youexpense to challenge this in light of Chevron.want that fixed. In addition, multifamily builders may challenge That said, agencies will also be preparing for a Continued on page 42www.mrca.orgMidwest Roofer 41'