Waking the "Zombies" - Possible Changes to EPA's Longstanding Article I Administration Discretion in Rulemaking

By Dave Tripp, Brittany Barrientos, Brett Shanks and Dennis Lane

The appointments of Supreme Court Justices Neil Gorsuch and Brett Kavanaugh have been widely expected to rein in the broad discretionary powers that Environmental Protection Agency (EPA) and other agencies have enjoyed. The Supreme Court's decisions in the 2018-2019 term show some movement on that topic, but change often comes gradually to the Court as Justices change and cases with new issues arise.

Threshold issues likely to be addressed by the Court in the next term include the authority of Congress to delegate legislative and policy decisions to federal agencies such as EPA (via the Nondelegation Doctrine), and limitations on the authority of EPA and other agencies to issue and interpret their own rules (i.e., agency deference).

Read the full article.

Note: This is the first of three alerts on limitations of EPA's discretionary powers to be reviewed. EPA's authority to interpret its own rules and EPA's enforcement discretion will be addressed in later, separate alerts. Also, warning: Zombies are not real and there is no pejorative intent in use of the term; “Zombie” is a descriptor used by courts for long-embedded laws, rulings or amendments that are inactive but brought to life by new events. 

For more information on how the new appointments to the Supreme Court may affect discretions in rulemaking, please contact Dave Tripp, Brittany Barrientos, Brett Shanks, Dennis Lane or the Stinson LLP contact with whom you regularly work.

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