Being Effective in a Post-Chevron World
By Adam Pugh, NSSGA
In June 2024, the Supreme Court ruled in Loper Bright Enterprises v. Raimondo to repeal the Chevron deference, marking a significant shift in the balance of power between the judiciary, executive agencies and Congress. Under the Chevron doctrine, established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), courts deferred to federal agencies’ interpretations of ambiguous statutes they were tasked with implementing. This deference empowered agencies to fill in gaps caused by Congress’s use of vague terms or when it purposefully directed federal agencies to craft regulations to enforce federal law. Many viewed this effort as Congress relinquishing its Article 1 authority under the U.S. Constitution. However, its repeal demands a new approach that places greater responsibility on Congress to craft more transparent, more precise legislation.
With Chevron deference no longer guiding judicial review, the 119th Congress faces a formidable challenge. Courts will now scrutinize ambiguity in statutory language more rigorously. This shift necessitates a recalibration of how Congress approaches lawmaking. Lawmakers will need to rely heavily on outside organizations with technical expertise to draft detailed and unambiguous statutes to comply with the new Loper test.
NSSGA has a pivotal role in this new legislative and regulatory landscape. The association will bring deep industry knowledge, access to data and an understanding of regulatory frameworks’ practical implications. Our industry’s expertise positions us to be valuable collaborators in the drafting phase of legislation, ensuring that new laws are both practical and feasible. Some notable examples of NSSGA providing background and expertise to assist Congress with drafting legislation include the ROCKS Act provision of the Infrastructure Investment and Jobs Act (IIJA) and the Buy America exemption for construction materials under the IIJA.
The repeal of Chevron deference is an invitation to engage proactively with members of Congress, both in Washington, D.C., and their districts. NSSGA will help shape legislation that supports industry growth while maintaining regulatory compliance by providing technical insights and advocating for clear, pragmatic statutory language. This collaboration ensures that stakeholders’ perspectives are well-represented, minimizing unintended consequences and fostering a regulatory environment that balances economic and environmental considerations. NSSGA encourages all members to invite their members of Congress to tour local facilities and help them understand how legislation can affect their districts. If you need help making this ask or tips on how to facilitate a successful tour, please reach out to the NSSGA GARA team.
As the incoming Trump administration considers its repeal and replacement efforts, federal agencies must consider whether they have the authority to implement a rule in the first place. The administration may have to navigate this double-edged sword of lacking explicit authority they have previously weighed in on.
The repeal of Chevron deference also underscores the importance of robust stakeholder engagement throughout the legislative and regulatory process. This collaborative approach can ensure that legislation and regulation are comprehensive and informed by real-world perspectives. The need for technical expertise and stakeholder input will only increase, as Congress adapts to its expanded role in interpreting and defining statutory language.
Originally published in March/April 2025 NSSGA REVIEW.