Energy partner Randy Elliott discussed with Legal Dive the regulatory uncertainty following the recent cases that will give corporations incentive to challenge regulations in court. Randy said the cases represent a seismic shift in the conflict between regulators and the industries they oversee and in how companies approach challenging regulators and their regulations. “You’re going to see more and more of those [challenges] in federal district courts and courts of appeals as they fight out these issues,” said Randy. “The judges are now going to have to make the calls and independently apply tools of statutory construction, which the [Supreme] Court says is their bailiwick.”
Randy said the effect of the Court’s SEC v. Jarkesy decision on administrative law proceedings may be felt most immediately in environmental, antitrust and labor policy. “The Jarkesy case is going to cut across every agency that uses administrative law judges, although the exact breadth of what it covers is unclear because it purports to cover not every enforcement action,” Randy explained.