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Washington’s Think Tanks Are Gearing Up for a Legal Assault

A pair of Supreme Court rulings could put decades-old government regulations back on the table for legal challenges — and make them harder to defend.

Two Supreme Court rulings expected next month — one hotly debated and one flying under the radar — could put long-established government regulations back on the table for legal challenges.

Public interest groups warn that the rulings could swamp government agencies with lawsuits and fuel a climate of attacks that “undermine our system of regulation of public health and safety and environmental protection,” Allison Zieve with Public Citizen told NOTUS.

One of the expected rulings could overturn a long-standing precedent of courts deferring to government agency expertise when federal law is ambiguous, called Chevron deference.

Proponents of the change say it would put power in the hands of Congress and the courts instead of government agencies, but opponents argue it’s “an industry-driven campaign to dismantle the administrative state and boost corporate profits,” as one group of Democratic senators described the case.

But a less closely watched case — which three Democratic senators fighting to protect Chevron told NOTUS isn’t on their radar — could undo the current, six-year statute of limitations to challenge a government regulation and set decades-old government regulations up for new legal challenges.

The ruling in that case, Corner Post v. Board of Governors of the Federal Reserve System, could move the six-year statute of limitations clock’s starting point from when the regulation was passed to when a company or individual was first “injured” by it.

“It’d be one thing if like, OK, Chevron, we have a clock for the last few years — those would be the immediate challenges. Obviously, the Corner Post case would just blow that timeline out of the water,” Reshma Ramachandran, who co-directs a Yale regulatory research group and opposes overturning Chevron, told NOTUS, adding that agencies could have to beef up their legal teams, “shifting the balance of the composition of the agency when they have a set budget.”

The government’s attorneys made a similar argument to justices that changing the statute of limitations “would magnify the effect of any other decisions,” like overturning Chevron deference. “It would potentially mean that those changes would then be applied retroactively to every regulation that an agency has adopted in the last, I don’t know, 75 years,” U.S. Department of Justice attorney Benjamin Snyder said.

The justices seemed less likely to overturn the statute of limitations than they did Chevron in oral arguments earlier this year. But outside groups say the potential combination of rulings is a looming threat.

“Together, Loper Bright/Relentless [the Chevron deference cases] and Corner Post could undo the stability of established regulations, from standards on the air we breathe to rules protecting our rights at work, and open up untold numbers of previously settled regulations to new attacks,” Democracy Forward wrote in a memo ahead of oral arguments in the Supreme Court earlier this year. The organization also argues that the case does not fall on clean political lines and that the changes could cause chaos and harm businesses that rely on a stable regulatory environment.

Proponents of the changes make an ideological argument that limiting agency power aligns with their interpretation of the Constitution. The cases are also part of the coordinated effort on the right to remake the courts in favor of smaller government and deregulation.

“Chevron was also giving a lot of judges the ability to rubber stamp lawlessness by bureaucrats and usher in an era of much bigger government,” Leonard Leo, Federalist Society founder and millionaire conservative legal activist, said in a recent podcast interview. “We have a great Overton window in the next few decades to create a free society.”

One of the law firms bringing one of the cases that could overturn Chevron, the New Civil Liberties Alliance, insists that the threat of a flood of lawsuits is overblown and that there are other legal mechanisms in place to prevent an onslaught of litigation.

“I just don’t think that the floodgates are going to open. I hope that they’ll open at least a trickle for some of the really egregious ones out there,” Mark Chenoweth, president and chief legal officer of NCLA, told NOTUS. “But I can tell you, just speaking for NCLA, we do not have a list of like, ‘Here’s the 20 statutes that we’re going to be taking down.’ That’s just not the way that we’re looking at this — at all.”

The attorney on the Corner Post case, arguing to change the gauge for the statute of limitations to challenge government regulation, left the door open to either a trickle or a floodgate. “Only the ones that have defects that you’re going to see challenges,” attorney Bryan Weir told justices.

But the defenders of the precedents have little faith that corporate interests would not seek out “defects” to maximize profit and tie up agencies in courts.

The American Cancer Society Cancer Action Network is among them.

“Anything that threatens people’s access to care, which is what these challenges could do, works against our mission to end cancer as we know it for everyone,” Mary Rouvelas, managing counsel for ACS CAN, told NOTUS. “What sometimes gets lost in litigation is that actual lives may be on the line.”

Claire Heddles is a NOTUS reporter and an Allbritton Journalism Institute fellow.