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Republicans take aim at federal regulators

Republicans take aim at federal regulators

Legislation introduced earlier this month seeking to overhaul the ability of government agencies to interpret the statutes they enforce could undermine the agencies’ independence and limit their ability to apply their expertise, observers say.

On January 3, House Judiciary Committee Chairman Bob Goodlatte, R-Va., announced the introduction of the Regulatory Accountability Act of 2017, which, among other things, would repeal the so-called Chevron deference, which requires courts to defer to interpretations of statutes made by the government agencies that enforce them.

The concept dates back to a 1984 U.S. Supreme Court case, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., involving a dispute over the Environmental Protection Agency’s interpretation of a provision of the Clean Air Act Amendments of 1977. The justices ruled that if a court found another reasonable interpretation, or one even better than the agency’s, it must defer to the agency’s reasonable interpretation.

“If we want to see better and faster growth within our economy, reforming our regulatory system must be at the center of our nation’s focus,” Rep. Goodlatte said in a statement. “The runaway regulatory state is creating hidden costs on hardworking Americans and small business owners alike. As these costs grow and continue to burden our economy, we are losing jobs and wages to thousands of regulations.”

The Regulatory Accountability Act, he said, “is a major step to reverse the negative effects regulations are having on our economy.”

Lee DeHihns III, senior counsel at Atlanta-based Alston & Bird LLP, voiced concerned over the proposal.

“If this happens,” he said, “it will have quite a dramatic effect across the entirety of the federal government. It could to lead a situation where every time a regulation is published somebody is going to say, ‘I don’t think the statute says this.’ ”

Mr. DeHihns said repealing the Chevron deference would have a serious effect on federal regulatory activity.

“If you gut and overturn the Chevron doctrine and say the courts should give no deference to an agency’s interpretation of a statute when a regulation is challenged,” he said, “then in my personal opinion…regulatory activity on behalf of the federal government will come to a halt until they can figure out how to do something that’s defensible.”

Mr. DeHihns said that the Chevron deference “is all about the courts not having to constantly reinterpret a federal statute every time a regulation is challenged.”

“One might ask,” Mr. DeHihns added, “if it’s somewhat disingenuous to say to the agencies ‘we told you to do stuff but you’re doing more stuff than we thought you would do.’”

Sapna Kumar, associate professor at the University of Houston Law Center, said she also disagreed with the attempt to repeal the Chevron deference.

“Agencies are experts in their own areas,” Ms. Kumar wrote in an email. “They develop deep knowledge of the statute that governs them by virtue of all the work that they do in the area. By contrast, courts are generalists — they see cases in a wide variety of areas. So, when an ambiguity comes up in a statute, the agency is in the best position to interpret it, because it is well acquainted with all the details of the statute.”

Ms. Kumar said independent government agencies are generally politically insulated and the heads of these agencies usually serve staggered terms and are removable only for cause.

“By getting rid of Chevron deference,” she wrote, “it will allow the Republicans to undo independent agency interpretations that are liberal in nature. This jeopardizes the independence of these agencies.”