Loper Bright: Has the Demise of Chevron Deference Mattered?

Bergeson & Campbell, P.C. (B&C^®) is pleased to present “Loper Bright: Has the Demise of Chevron Deference Mattered?,” a complimentary webinar reviewing changes to Toxic Substances Control Act (TSCA) determinations in light of Loper Bright. The U.S. Supreme Court’s June 2024 decision in Loper Bright Enterprises v. Raimondo offered a new response to a long-standing question under administrative law: if an agency and a reviewing court’s interpretations of a federal statute differ, whose interpretation should prevail? The Supreme Court established a deferential, and ultimately controversial, framework in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. to address this question. Chevron instructed courts to defer to reasonable agency interpretations of silent or ambiguous statutes. In overturning Chevron, Loper Bright held that courts must decide all relevant questions of law, determine the best reading of a statute, and resolve ambiguities. Courts may consider agency interpretations as persuasive, but not controlling.

Loper Bright concerned judicial review of final agency actions under Section 706 of the Administrative Procedure Act (APA). TSCA, like other environmental statutes, includes separate provisions relating to judicial review. The Loper Bright decision overturning Chevron has invited much discussion on whether decisions made by the U.S. Environmental Protection Agency (EPA) under TSCA, especially under Sections 4 (testing), 5 (new chemicals), and 6 (existing chemicals), can be expected to be challenged more routinely and with a greater probability of success. A year after Loper Bright and a plethora of TSCA litigation, B&C examines the impacts of the case on advocacy under TSCA.

During this webinar, Kelly N. Garson, Senior Associate, B&C, and James V. Aidala, Senior Government Affairs Consultant, B&C, will discuss the basis for the U.S. Supreme Court’s decision in Loper Bright, the impacts on administrative law, and observations on how Loper Bright may shape current and future chemical safety or TSCA and Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) policy development and litigation.

Topics Covered:

• The context behind the Loper Bright decision: How courts danced (or danced around) the Chevron “two-step” and the differences anticipated under Loper Bright.
• In the year after “Chevron’s demise,” the impacts of Loper Bright on current litigation challenging EPA actions.
• With significant litigation challenging EPA actions under TSCA Sections 4, 5, and 6, how changes to agency deference have or may impact EPA’s administration of TSCA and stakeholder advocacy.
• While a significant focus under Loper Bright is EPA’s and a reviewing court’s role, Congress’s role is equally important. The webinar will address how future congressional action could impact policies and issues relating to statutory interpretation and deference under TSCA.

Speakers Include:

James V. Aidala, Senior Government Affairs Consultant, B&C, has been intimately involved with TSCA and FIFRA legislative reauthorization and key regulatory matters for over four decades. Mr. Aidala brings extensive legislative experience on Capitol Hill and past experience as the senior official at EPA for pesticide and chemical regulation, and provides clients with vital insights into not only relevant current policies of EPA and sister agencies, but also the way these policies have been or are likely to be formulated to help clients more successfully address regulatory matters. This unmatched wealth of experience allows him to explain, interpret, and predict EPA policies to help clients resolve or address their issues.

Kelly N. Garson, Senior Associate, B&C, assists clients with TSCA, FIFRA, and other federal and state regulatory matters; researches and prepares white papers, briefs, and regulatory memoranda to provide B&C clients with knowledge and strategy to meet regulatory challenges and seize competitive opportunities; and augments the timely and efficient delivery of outstanding client services by the B&C team. Ms. Garson developed her skills in handling regulatory matters at the local, state, and federal level through an impressive track record of clerkships and internships, including positions with the EPA Office of Enforcement and Compliance Assurance; the U.S. Department of Justice, Environment and Natural Resources Division; the New York State Department of Environmental Conservation, Region 2 Office; and the New York City Office of Administrative Trials and Hearings.

Lynn L. Bergeson, Managing Partner, B&C, has earned an international reputation for her deep and expansive understanding of how regulatory programs pertain to nanotechnology, industrial biotechnology, synthetic biology, and other emerging transformative technologies. Ms. Bergeson counsels corporations, trade associations, and business consortia on a wide range of issues pertaining to chemical hazard, exposure and risk assessment, risk communication, minimizing legal liability, and evolving regulatory and policy matters. She served as chair of the American Bar Association (ABA) Section of Environment, Energy, and Resources and as chair of the International Bar Association (IBA) Agriculture and Food Section. She has served on the Board of Directors of the Environmental Law Institute (ELI), the NanoBusiness Commercialization Association, and is a recent past President of the Product Stewardship Society. Ms. Bergeson is a Fellow of the American College of Environmental Lawyers (ACOEL) and serves as a Regent and on its Executive Committee.