Earlier this week, the U.S. House of Representatives passed a bill, the Regulatory Accountability Act of 2017, that, if enacted, would eliminate judicial deference to agency regulations.
Touted by conservatives as an antidote to executive overreaching, the bill could potentially throw numerous pending regulatory challenges into question, including those to the Environmental Protection Agency’s Waters of the United States Rule and Clean Power Plan.
The Regulatory Accountability Act, which passed along party lines, requires courts to review agency rules de novo and imposes mandatory litigation stays on certain new rules.
If the Senate passes the Act and President-elect Trump signs it into law, it will effectively override the U.S. Supreme Court’s 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984), which held that an agency’s construction of an ambiguous statute is controlling as long as it is reasonable. The last 30 years of administrative law builds upon Chevron.
Though conservatives claim the Act will save private industry from government interference, passage of the Act could cause chaos for regulated industries, which could find themselves in a state of flux while costly and time-consuming challenges to applicable regulations move through the court system.
The Act’s passage comes shortly after the Supreme Court in October agreed to consider limiting the deference granted to agencies under Auer v. Robbins, 519 U.S. 452, 461 (1997).