At least some courts applying the Supreme Court’s recent decision in Kisor v. Wilkie are rejecting agency regulatory interpretations that create “unfair surprise” for regulated parties.
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Eleventh Circuit Potentially Poised to Address Impact of Kisor
The Eleventh Circuit appears to be poised to be one of the first, if not the first, appellate courts in the country to address the impact of the Supreme Court’s decision in Kisor v. Wilkie, which addresses how courts should evaluate an agency’s interpretation of its own regulations.
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Inside Look at Changes to the Supreme Court
Hunton Andrews Kurth’s environmental practice launches its video series, Inside Look, focusing on recent events and trends impacting regulated industries through discussions with our top attorneys and thought leaders. Our inaugural video focuses on recent changes in the composition of the US Supreme Court and the potential impact on industry. Partners F. William Brownell and Elbert Lin discuss the effect of the appointments of Justices Neil Gorsuch and Brett Kavanaugh on administrative law, voting patterns at the Court and the importance of originalism-type arguments in constitutional cases.
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The Role of “Cost” Consideration in Regulatory Proceedings
In Michigan v. EPA, 135 S. Ct. 2699 (2015), the Supreme Court held that the cost of regulation is an essential factor that EPA must consider when deciding whether to regulate. According to the Court, “[a]gencies have long treated cost as a centrally relevant factor when deciding whether to regulate.” In subsequent regulatory proceedings, however, EPA has offered different views as to what Michigan’s cost mandate means.
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