US Supreme Court

 

Chevron Overruled: Implications for Federally Regulated Businesses

On June 28, 2024, the United States Supreme Court ruled that courts must "exercise their independent judgment" when interpreting federal statutes and may no longer deference to agency interpretations simply because a statute is ambiguous. This ruling will substantially reduce the power of administrative agencies to exceed the boundaries of the authority granted to them by Congress and will ultimately reduce the regulatory burden on businesses and consumers alike.

The landmark rulings of Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce overruled the Chevron doctrine that had been the law since 1984. Under Chevron, if a statute's meaning is ambiguous, a court reviewing an agency's action must defer to the agency's interpretation so long as it is reasonable, even if the Court would have chosen an alternative interpretation. But, as Chief Justice Roberts notes in his opinion in Loper BrightChevron is based on ambiguity, which has always evaded meaningful definition.

Loper Bright involved the Magnuson-Stevens Act, a law passed to address rampant unregulated offshore overfishing. This Act gave the National Marine Fisheries Service (NMFS) authority to require observers on board certain fishing vessels to collect data and ensure compliance with regulations. As an exercise of this authority, the NMFS enacted regulations that required some fishing operations to host and pay for such an observer. In this case, the fisheries would be required to pay the observer a salary of about $710 per day.

The petitioners in Loper Bright, four small family-operated fisheries in New England, challenged the regulation. They argued the Magnuson-Stevens Act did not authorize the NMFS to impose such excessive fees, which, in their case, took up a substantial part of already thin profit margins on herring.

The lower Court applied the Chevron doctrine and found that the statute's language was ambiguous and the NMFS's interpretation was not unreasonable. As such, the Court deferred to the interpretation that the NMFS had the authority to require fisheries to pay for their own compliance observers.

The Supreme Court, however, struck down Chevron as unworkable, incoherent, and inconsistent with the history of the Administrative Procedure Act (APA), which outlines procedures for judicial review of agency actions. The Court noted that federal agencies have no particular expertise in interpreting statutes. The Court also held that the APA articulates the "elemental proposition reflected by judicial practice dating back to [this nation's founding], that courts decide legal questions by applying their own judgment."

The overruling of Chevron will substantially reduce overreach by the administrative state and cut off its power to interpret the law in its favor. This means operating any business, small or large, will entail a reduced regulatory burden and a higher likelihood of obtaining much-needed relief from overregulation.

EPA’s New Plastics Rule Imposes Recordkeeping and Reporting Requirements for Ubiquitous Toxic Chemicals

On September 28, 2023, the Environmental Protection Agency (“EPA”) released its final Toxic Substances Control Act (“TSCA”) rule containing new reporting and recordkeeping requirements for the manufacture and sale of certain plastics known as PFAS. Section 7351 of the 2020 National Defense Authorization Act required the EPA to issue a TSCA rule requiring any person who has manufactured perfluoroalkyl or polyfluoroalkyl substances (“PFAS”) in any year since January 1, 2011, to report and maintain records regarding their use of PFAS. The EPA’s rule reaches not only manufacturers of PFAS themselves, but also manufacturers of goods that contain PFAS.

According to the Centers for Disease Control, PFAS are a group of chemicals used to make coatings and products that resist heat, oil, stains, grease, and water. Per- and Polyfluorinated Substances (PFAS) Factsheet | National Biomonitoring Program | CDC. Also known as "forever chemicals," PFAS are a concern because they do not break down in the environment and have caused widespread contamination of the environment. In animal studies, PFAS negatively affect growth and development, reproduction, thyroid function, immune system responses, and liver injury. An NHANES study found four PFAS in the blood samples of nearly all the people participating. According to a notice given by the Consumer Product Safety Commission on September 20, 2023, PFAS are used in many common goods, including "non-stick cookware; water-repellent and stain-resistant clothing, carpets and other fabrics; some cosmetics; some firefighting foams; and common home products such as cleaning supplies, waxes, coatings, adhesives, paints, and sealants." Federal Register :: Per- and Polyfluoroalkyl Substances (PFAS) in Consumer Products. Due to serious concerns about PFAS in drinking water, the EPA has also recently released new standards that limit certain PFAS in drinking water to the extremely low level of 4 parts per trillion. Per- and Polyfluoroalkyl Substances (PFAS) | US EPA.

The EPA’s proposed rule will require companies to report extensive information about PFAS in their merchandise. Companies would be required to provide information relating to “chemical identity, categories of use, volumes manufactured and processed, byproducts, environmental and health effects, worker exposure, and disposal." 2022-25583.pdf (govinfo.gov). Companies would have 18 months to report this information if they have any amount of an estimated 1,462 chemical substances in the PFAS group.

Critics consider the burden of the rule to be high, especially considering how the time and cost of compiling information spanning more than a decade will affect small businesses. The EPA estimates the burden on small businesses to be $875 million and asserts that this will not have a significant impact on small entities. Id. Nevertheless, the proposed rule addresses this criticism by allowing companies to report “not known or not reasonably ascertainable” if the circumstances are such that the burden is too high. Whether the burden imposed by the EPA is reasonable may be the subject of litigation in the coming months.

               Additionally, the EPA’s authority to issue such a regulation may be affected by the Supreme Court’s upcoming review of Chevron's deference in January 2024. Overturning Chevron would reign in the regulatory power of governmental agencies. The EPA’s proposed rule regarding PFAS reporting is currently open for public comment.

United States Supreme Court Holds that "Mere Retention" of Debtor Property Does Not Violate the Automatic Stay

The United States Supreme Court recently held, in City of Chicago v. Fulton, that a creditor's "mere retention" of a debtor's property does not violate the bankruptcy automatic stay.  In Fulton, the Court found that the Bankruptcy Code permits a creditor to maintain the status quo when a debtor files for bankruptcy.  In other words, the creditor is not automatically compelled to return property of the debtor that the creditor recovered prior to the bankruptcy filing, but the creditor also cannot dispose of the property while the bankruptcy case is pending absent permission from the bankruptcy court. 

                As most bankruptcy creditors are aware, the Bankruptcy Code contains an automatic stay within § 362(a)(3).  The automatic stay acts to automatically protect the debtor and his or her property from most collection or enforcement acts by creditors upon filing of a bankruptcy petition.  Many debtors' counsel have also taken the position that the automatic stay requires creditors to return property to the debtor if the property had been repossessed or otherwise recovered by the creditor shortly before the bankruptcy filing.  Bankruptcy courts had inconsistently interpreted this aspect of the automatic stay.  Fulton made clear that if the debtor seeks return of the property, the correct means to pursue the return is a Motion for Turnover under §542 of the Bankruptcy Code, not the automatic stay statute. 

                Fulton is good news for secured creditors who fear bankruptcy filings by their defaulted customers.  If the creditor can lawfully recover collateral before a bankruptcy case is commenced, the creditor is not automatically compelled to return that collateral as soon as the bankruptcy is filed.  The debtor must take the affirmative step of filing a Motion for Turnover to compel return of the property. 

                Writing the Supreme Court’s opinion, Justice Samuel Alito noted that the language of § 362(a)(3) leads most logically to the conclusion that only affirmative acts that disturb the status quo are prohibited.  If collateral is already in the creditor’s possession when the bankruptcy case is commenced, the creditor must retain the property, but at least is not automatically required to give up possession without a separate Motion for Turnover by the debtor and opportunity for the Bankruptcy Court to decide that issue.   

                Creditors navigating bankruptcy law issues regarding how to deal with collateral or other property recovered from debtors should seek legal advice about how to proceed.  Bankruptcy law remains fraught with potential pitfalls for creditors.  Erickson|Sederstrom’s creditors’ rights attorneys provide timely advice to creditors who are seeking guidance regarding pre-bankruptcy and bankruptcy rights against debtors and debtors’ property.