Pinkston’s Post

💥 So the US Supreme Court has overturned the 1984 Chevron doctrine. ❗ Notice how different news media frame the same event in different terms that align with the dominant narrative of their target audience. 1️⃣ "The decision could make it easier for courts to block ambitious climate and wildlife regulations", writes The Washington Post. 2️⃣ "Supreme Court guts agency power in seismic Chevron ruling", declares Axios. 3️⃣ "Supreme Court pares back federal regulatory power", says the Wall Street Journal in a more muted tone. 4️⃣ "Justices limit power of federal agencies, imperiling an array of regulations", proclaims the New York Times. 5️⃣ "Supreme Court just defeated Big Government. It's up to Congress to make it stick", screams an opinion column on Fox News. 👉 There are two dominant narratives in our polarized world today: 1️⃣ Government is not to be trusted; it has too much power controlled by unelected bureaucrats. The system is rigged against the small guy. 2️⃣ Big business is not to be trusted; they will always break the rules to make a buck. Government needs to step in and protect us. 🤔 No matter which side of the public debate you are on, it is useful to pay close attention to the underlying narrative to understand what is actually going on. ❓ Is there government overreach? Yes, but not always. ❓ Is business only concerned with profits? Yes, but not always. 👉 Narratives are meant to oversimplify. But when we let them affect our judgment about the future, we are sure to be surprised (even shocked). 👉 This is the main point of the "narrative fallacy", as brilliantly articulated by Nassim Taleb in his book The Black Swan. 💡 Examine your own narrative about FDA rules and regulations. This will help you to understand what impact, if any, this Supreme Court decisions will have in YOUR area of work. Don't fall for generalized "predictions" that are almost always incorrect. 👇 Share your thoughts in comments below. =========================================== 💕 this post? ♻ Repost and share with others to encourage more conversation. #letstalkrisk #riskmanagement #medicaldevices #fda

Today: Supreme Court claims final authority for all decisions via the Chevron decision. This is from Supreme Court Justice Elana Kagen's dissent: Today, the majority does not respect that judgment. It gives courts the power to make all manner of scientific and technical judgments. It gives courts the power to make all manner of policy calls, including about how to weigh competing goods and values. (See Chevron itself.) It puts courts at the apex of the administrative process as to every conceivable subject—because there are always gaps and ambiguities in regulatory statutes, and often of great import. What actions can be taken to address climate change or other environmental challenges? What will the Nation’s health-care system look like in the coming decades? Or the financial or transportation systems? What rules are going to constrain the development of A.I.? In every sphere of current or future federal regulation, expect courts from now on to play a commanding role. It is not a role Congress has given to them, in the APA or any other statute. It is a role this Court has now claimed for itself, as well as for other judges.

The United States Supreme Court has overturned the Chevron decision, a 40-year-old precedent that empowered federal agencies to interpret ambiguous laws. This landmark ruling introduces more uncertainty in regulatory practices, impacting sectors like finance, telecommunications, consumer protection, environmental protection, public health, and workplace safety. Implications for Risk and Compliance: 🔎 Increased Judicial Scrutiny: In the US, courts will now have more authority to interpret laws, potentially leading to more legal challenges. ❓ Greater Ambiguity: Businesses may face uncertain legal interpretations, requiring them to be more vigilant of change. 🚦 Adaptability Ahead: Companies that are able to flex to compliance changes will be ahead of the game, proactively addressing risk and ensuring adherence to unpredictably evolving regulatory standards. https://lnkd.in/gijDFPtq #SupremeCourt #ChevronDecision #RiskManagement #Compliance #Regulation #Disruption #StrategicDifferentiation #WargametoGameday

For decades, the court’s decision in Chevron U.S.A. v. Natural Resources Defense Council directed judges to defer to the reasonable interpretations of federal agency officials in cases that involve how to administer ambiguous federal laws. The precedent, established in 1984, gave federal agencies flexibility to determine how to implement legislation passed by Congress. The framework has been used extensively by the U.S. government to defend regulations designed to protect the environment, financial markets, consumers and the workplace. Supporters of Chevron, including environmental groups, labor and civil rights organizations and the Biden administration, told the court that Congress often writes broad statutes to give government experts the leeway to address emerging complex problems. Overturning or scaling back the legal precedent, they said, will hamstring and weaken federal agencies and shift power to the courts and Congress. In a lengthy dissent read from the bench, Kagan said the court discarded precedent, unwisely setting up the Supreme Court — and courts in general — as the final arbiter on regulatory matters in which they are not experts. Kagan said that power rightly belongs with federal agencies. “In every sphere of current or future federal regulation, expect courts from now on to play a commanding role,” Kagan wrote in her opinion. “It is not a role Congress has given them. … It is a role this court has now claimed for itself, as well as other judges.” A wide array of conservative advocacy groups have urged the court to overturn Chevron. But petrochemicals billionaire Charles Koch has played a particularly influential role: Conservative legal organizations — the Cause of Action Institute and New Civil Liberties Alliance — that have received millions of dollars from the Koch network, founded by Charles Koch and his late brother, David Koch. Charles Koch is the CEO of Koch Industries and a fierce critic of federal regulations. https://wapo.st/4cJGu3L #environmentalpolicy #environmentalregulation #environmentaljustice

Supreme Court Hears Arguments Today in Loper Bright v. Raimondo, a Crucial Regulatory Case The sole issue at hand in a case that comes before the U.S. Supreme Court today - Loper Bright Enterprises v. Raimondo - is whether the legal doctrine known as the Chevron Deference should be upheld. This longstanding doctrine originated from a 1984, 6-0 decision in a case styled Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.; thus, the name. Put simply, the Chevron Deference holds that the federal bureaucracies should be allowed to compile regulatory actions without interference from the courts. It’s more complex than that, obviously, but this is the basic principle at play. The practical and inevitable outcome from this ludicrous decision has been to enable the exponential expansion of federal regulations and the bureaucracies that promulgate and enforce them. Basically, if Congress statutorily delegates a matter to a regulatory agency without issuing explicit guidance, then, as long the agency’s regulatory action comprises a reasonable interpretation of the statute, the Chevron Deference holds that courts must defer to the agency’s wisdom. The inevitable outcome is agencies with almost unfettered rulemaking authority, since congress seldom promulgates laws containing explicit rulemaking guidance. It stands as a matter of reason and common sense that, in the long term, the Chevron Deference is unsustainable in and incompatible with the maintenance of a free society. Why? Because, left unchecked, regulators will always - always - act in a way that expands their authority and the size of their organizations. There are no exceptions to this rule in U.S. history, and likely none throughout all of human history. It goes without saying that the Chevron Deference stands as a key facilitator of the Biden Green New Deal policy agenda. It is an agenda that bets on and in fact demands massive new expansions of already bloated bureaucracies at federal agencies like the EPA, the Department of Interior, the Energy Department, the Commerce Department, the FERC, and even the Treasury and SEC. There is much, much more at the link below. Enjoy. #Energy Chevron #LoperBright #supremecourt #ChevronDeference #regulation #commercialfishing NOAA Fisheries https://lnkd.in/gPfS4sWX

When I first interviewed to work with West Virginia, one of my future colleagues asked: "What's the biggest issue we should be addressing?" My answer was overturning Chevron deference, which shifted power to federal agencies. It turns out the AG had been thinking the same thing for many years. When I came to the office, we filed brief after brief pushing for that result -- so much so that one State started mocking me for doing so many of them. But we could feel the wind shifting. That's why I'm so proud of our work in the recent Loper Bright case. (Here I'm shamelessly taking credit for the work of Grant Newman, who has since gone on to greener pastures.) Once and for all, the Court has put Chevron to bed. Obviously a case like that doesn't come down to one amicus brief, especially when Petitioners are already so well-represented by great counsel and when so many experts pushed for this outcome. But I do think our brief well explained why 27 States saw Chevron deference as a real problem, and I like to think it had some impact. If you'd like to join us in doing work like this, please reach out! We're planning to go back to the Supreme Court (as more than an amicus) in several cases next year. https://lnkd.in/gxjDhZkb

The Chevron Deference Is Dead. Will The Administrative State Follow? My new story at Forbes analyzes the potential longterm impacts of Friday's decision by the Supreme Court to rescind the longstanding Chevron deference. Here's an excerpt: The national media focus Friday centered on the fallout from President Joe Biden’s stunning performance in his presidential debate with former President Donald Trump. That was as it should be given the immediate, near-term impacts that event could have on the country and its public policy direction. But another major event that could have massive impacts on the direction of federal public policy over the longer term came less than 12 hours after the conclusion of that debate. Around mid-morning on Friday the US Supreme Court handed down a 6-3 decision in the case styled Loper Bright v. Raimondo. In doing so, the Court rescinded the longstanding Chevron deference judicial doctrine. The major portion of the Biden energy and climate policy agenda - and the Obama administration’s agenda before it - has been enacted via the regulatory process. While congress enacted hundreds of billions of dollars in tax incentives and subsidies designed to spur investment in the chosen, rent-seeking industries being offered as alternatives to fossil fuels, the legislative branch has otherwise been paralyzed in the energy and climate policymaking realm. The existence of the Chevron deference has worked to ensure the judiciary branch of government has also been largely paralyzed to act decisively to review and overrule elements of the Biden agenda whenever the EPA, Bureau of Land Management or other agencies impose regulations that may lie outside the scope and intent of the governing statutes. In effect, this doctrine has served as a key enabler of the massive growth of what has come to be known as the US administrative state. [End] There is much, much more at the link below. Enjoy. #chevrondeference #supremecourt #loperbright #administrativestate #regulation US Environmental Protection Agency (EPA) https://lnkd.in/gbgkn5AU

Disappointed but not surprised that this Supreme Court overruled the Chevron Doctrine, continuing its assault on regulatory agencies. Interested in Justice Thomas' fossil fuel ties? Check out the blog I co-wrote with Aidan Bassett for Law Students for Climate Accountability : https://lnkd.in/er_4KBd8. "Justice Thomas’ fossil fuel friendships in general and specifically in relation to the Koch network raise significant concern in light of Loper, which threatens the future of the Chevron doctrine — a watershed decision favoring deference to regulators when statutes are ambiguous. If Chevron is overturned, expert agencies like the EPA may find it harder to defend regulations or alter interpretations of governing statutes, impairing their ability to safeguard public health and adapt to emerging environmental threats." Current news coverage of this issue: https://lnkd.in/eNxFgG4K https://lnkd.in/egTkDeKf https://lnkd.in/e47yeyqF Eric Bolinder, Ryan Mulvey, Lawyers Are Responsible, Benjamin Franta, Geoffrey Supran

The Chevron Doctrine observed by the court since 1984 essentially came down to “defer to the experts” when laws were ambiguous or unclear. Federal agencies are full of policy experts, PhDs, and industry specialists that know the ins and outs of their relevant agencies. In striking down Chevron this Supreme Court has taken regulation and rule writing from the experts and placed it in the hands of unelected judges who are not experts in environmental regulation, firearms, securities fraud, or drug production and research, among many other fields. This unfortunate yet not unexpected ruling continues a growing attack on expertise, intellectualism, and institutions. In overturning #Chevron I expect that over time our water and air are likely to become less safe to consume, our securities markets more prone to malfeasance and fraud, and our institutions less trusted - but I suppose that was the purpose of the ruling all along. Corporations are better off. Individuals from investors to children playing outside are worse off today than they were Thursday before this ruling came down. https://lnkd.in/ed3wzHBb

This is a significant victory for the principles of limited government and individual rights. The decision reaffirms the importance of judicial review and the separation of powers, ensuring that government agencies are held accountable for their actions. With the Chevron decision no longer binding, we can now look forward to a more balanced and fair regulatory landscape. This landmark ruling empowers businesses, protects individual liberties, and promotes a level playing field for all. I commend the Supreme Court for their thoughtful consideration and commitment to upholding the Constitution. This decision not only strengthens our democracy but also paves the way for a more transparent and accountable governance. #SupremeCourt #ChevronDecision #JusticePrevails