Navigating the Loper Bright Ruling: A Legal Perspective on Environmental Policy Featuring Andy Leman
January 21, 2025 • 40 mins
In this episode of Tank Talk, we explore the implications of the Supreme Court’s recent Loper Bright decision with shareholder Andy Leman of Kemppel, Huffman & Ellis, P.C. Andy provides a straightforward overview of how this ruling shifts regulatory authority, its potential impact on industries, and what it means for environmental compliance moving forward. From court interpretations to agency rulemaking, this conversation sheds light on the evolving legal landscape and its broader effects. As an added bonus, Andy shares a few memorable stories about working in Alaska.
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Haley Hall (00:10):
Thank you for joining us.
You're listening to Tank Talkwith Integrity Environmental,
where we speak with founder,principal consultant and bulk
fuel storage expert ShannonOlters, about regulations,
safety and useful tips forsmooth sailing through the bulk
fuel storage industry.
Come learn the unique joys ofworking life in Alaska with
industry experts, including ourteam, vendors we work with and
companies we support.
(00:30):
Good morning.
Shannon Oelkers (00:35):
Welcome to Tank Talk Season 2.
This is Shannon, and I am heretoday with Andy Lehman.
He is a shareholder with Kemple, huffman and Ellis and he is
here today to help us navigatethe Loper-Bright rule.
I really wanted his legalperspective on environmental
policy.
I heard him speak at the APAconference and I literally
(00:55):
walked right up to himafterwards and said please come
on the podcast.
Our clients need what you have.
So, Andy, our firm frequentlyprepares technical responses for
our clients, along with theirlegal teams.
We handle the regulatory side,their legal team handles the
legal, and this is all relatedto environmental compliance
actions.
And in the past 15 years thatwe've been doing this, the
(01:16):
federal agencies have had a realwide latitude in interpreting
what we call gray areas ofregulation, and they seem to get
bigger every year.
But this year, with the passingof Loper Bright, a lot of our
clients have been calling uswith all these questions about
what that means going forward.
So I'm really excited andpleased to welcome you to the
show to share some of yourknowledge with that.
So I would really like you tostart off by introducing
(01:39):
yourself and maybe giving us anoverview of your background.
How did you get into legal work?
Andy, I'm curious.
Andy Leman (01:46):
Well, thanks for having me on the show, Shannon.
After law school I actuallyended up with two legal
clerkships that were going to beup here in Alaska.
Clerkship is when a lawyerworks closely with a judge on
cases that are coming beforecourt, usually something you do
right after law school.
I had a year with the AlaskaSupreme Court here in Anchorage
(02:08):
and another year with JudgeKleinfeld on the Ninth Circuit
Court of Appeals up in Fairbanks.
I told my mother that I wasonly going to be in Alaska for
two years and then I'd beleaving.
And well, those two years endedin 1997 and mom's still waiting
.
Shannon Oelkers (02:24):
Crying at Christmas.
Andy Leman (02:26):
Yeah Well, there've been a lot of trips home to
visit right To try to make upfor it.
But no, I guess I am a utilitylawyer.
That's probably the best way todescribe me.
I never had any aspiration tobe a utility lawyer but that's
where I landed.
After my clerkships ended Iwalked into Kemple Huffman Ellis
(02:47):
in 1997 and never left.
So my work is primarily withAlaska Electric and Telecom
Utilities and most of thoseutilities are member-owned
cooperatives Also work with thestatewide Electric Power
Association.
That's where we met and I do alot of work on labor and
employment, general counsel,cooperative issues.
(03:08):
Maybe of more interest to youraudience is that I do work with
a number of rural electricutilities on their bulk fuel
purchasing.
Bulk fuel purchase and deliveryand storage, of course, is a
big deal in Western Alaska and Ihave occasionally had to help
out with tank farm constructionprojects and real estate
(03:29):
disputes, legal disputes relatedto those tank farms.
So yeah, that's the 30 secondtour of my career.
Shannon Oelkers (03:37):
Thank you for that and related to that.
We've got Loper Bright.
We've got clients asking whatdoes that mean for us?
Could you sort of justsummarize up the Loper Bright
situation for maybe people whoaren't as familiar with it?
Andy Leman (03:50):
Well, I guess my snarky answer is that no one,
including probably the SupremeCourt justices, really knows how
Loper Bright is going to impactthe judicial system and the
regulatory environment.
So thanks for having me, it'sbeen great.
We'll have to do it againsometime.
Shannon Oelkers (04:11):
The end.
Andy Leman (04:11):
Yeah, no, I do think we can make some informed
guesses about what Loper Brightis going to mean, but I do think
it's also really a time willtell situation.
It is a big, big change.
Like a lot of other big changes, people don't always anticipate
correctly what the collateraleffects, what the fallout of
those changes is going to looklike.
Shannon Oelkers (04:27):
So at the root of Loper-Bright is a decision
that's much older and that's thefederal Chevron rule, and I
think our listeners wouldbenefit if you don't mind, andy,
taking us through what theChevron rule is, because we
really have to understand that,I think, to understand why
Loper-Bright's important andwhat it's changing that.
Andy Leman (04:51):
Sure, sure, well, so , of course, for non-lawyers out
there, lawyers like to refer tolegal cases by the name of one
of the parties to the lawsuit,and Chevron everybody, I think,
knows who Chevron is was one ofthe parties in that case.
It was a case that made its wayto the US Supreme Court in 1984
.
It was a case about the CleanAir Act, right, the federal law
that was supposed to reduce airpollution, improve air quality.
(05:13):
And the issue in that case, inChevron, was how do you define a
new or modified stationarysource of air pollution?
To me, the real key words werestationary source, right, what's
a stationary source?
So the EPA had issuedregulations back in 1981 that
(05:34):
allowed states to use adefinition of stationary source
that was basically broad enoughto cover a whole power plant,
right, or a whole they're notall power plants, right but a
whole plant as opposed to likeindividual pollution sources
within a plant.
And that 1981 EPA definitionwas actually pretty favorable to
(05:55):
industry, because it's a heckof a lot easier to meet
pollution goals if you can lookat the whole plant as a source
instead of like smokestack bysmokestack, right, like you can
do some offsetting, you can dosome.
Hey, I'm going to shut thisdown but build something new
over here.
Right?
And by the way, I think this isinteresting that 1981 EPA
(06:19):
definition was not the firsttime EPA had tried to define
what a state resource was.
No, there was a 1977 definitionwhen their right would have
been a different president inoffice, appointing different EPA
officials.
That was a lot stricter.
So this 1981 decision waspretty industry friendly and the
(06:40):
industry, I think, was happy,right, happier certainly than
they were with the 1977definition.
The Natural Resources DefenseCouncil didn't like that 1981
redefinition.
They wanted something morerestrictive.
The industry players, includingChevron, stepped in to defend
EPA's interpretation.
So you know, in our courtsystem at the federal level
(07:20):
there's kind of three levels,right, there's the trial courts,
then there's the modifiedstationary source in this law
that Congress passed and itreally wasn't addressed in the
legislative history.
Legislative history is likewhat lawyers would you know the
debates, the reports in Congressand congressional committees.
It wasn't really addressed inthat legislative history.
But the purpose of the law wasto improve air quality.
(07:42):
So we, the court, the judges,think EPA got it wrong and
should not have done thisredefinition right.
Of course industry was nothappy with that and got the case
in front of the Supreme Court.
When Chevron got to the USSupreme Court, the court agreed
that there really wasn'tanything in the law that
Congress passed or in thelegislative history to help
(08:04):
define what a stationary sourcewas.
In fact, the court said if youreally looked at the history,
you see that Congress was tryingto balance the interests of
clean air economic growth.
Right, and there were thingsyou could have cherry picked
either way.
Right, but the overall historydidn't point in one direction.
The court said in a situationlike that, courts ought to defer
(08:27):
to the interpretation from theagency that's charged with
enforcing the law right, inChevron's case the EPA.
And they said even in a caselike this one, where the agency
has changed its mind right abouthow to interpret the law,
courts ought to defer to it.
And, by the way, industry,environmental groups, whoever's
(08:48):
unhappy with what's happening,if you don't like it, go ask
Congress to change it, don't askjudges to change it.
So the rule that we kind ofpull out a chevron at the end is
that when an agency interpretsthe law, of course the courts
are going to tell agencies tofollow what Congress said.
(09:09):
But the issue in Chevron wasCongress didn't really say
anything, right?
If the law is silent or it'sambiguous on an issue, then the
courts would ask whether theagency's interpretation is
reasonable and by reasonable.
the agency's interpretation isreasonable and by reasonable we
mean is it within the zone rightof possible readings of the law
(09:31):
?
Shannon Oelkers (09:31):
Reasonable is a great word Andy.
Andy Leman (09:37):
Yeah, the entire American legal system hinges on
the word reasonable, right youknow if it's reasonable, even if
it's not the one the courtwould have picked if somebody
had said hey court, what do youthink this means?
As long as the agency'sinterpretation is reasonable,
the courts aren't going to messwith it when we're talking about
an issue where there wassilence or ambiguity from
Congress and so Chevron reallydid put agencies in the lead
(09:58):
role when it came tointerpreting laws that Congress
passed, that were ambiguous orhad gaps in them.
Shannon Oelkers (10:12):
So that deferral to these lead agencies
is, until now, what we haveoperated under.
So if the lead agency is theEPA, they decide to do something
a certain way.
Going to the court systemprobably won't get you very far.
Andy Leman (10:19):
I mean it is interesting I think if you read
Loper Bright, the court kind ofsays yeah we made this general
rule and we spent the next 40years making exceptions to it.
Shannon Oelkers (10:29):
Fair enough.
Andy Leman (10:30):
That were very hard to keep track of and predict and
that does kind of lead tothat's part of what leads to the
Loper Bright decision.
Shannon Oelkers (10:39):
Okay, so let's talk specifically about Loper
Bright.
This happened in June of 2024.
There was a great meme warafter it passed, which I think
is primarily why we got so muchclient chatter about it.
But could you just give us abrief overview of that ruling
and then just sort of tie itback to that Chevron?
Andy Leman (10:56):
Yeah, so Loper Bright was a very different case
from Chevron; It was a bunch ofAtlantic herring fishing
businesses challenging aNational Marine Fisheries
Service decision.
Interpreting theMagnuson-Stevens Act right named
after Ted Stevens, our latesenator in Alaska.
So it does have a little Alaskaconnection right.
(11:20):
But there was an issue aboutfishing vessels carrying
observers right to make surethat the fishing laws are being
followed.
The law specifically said thatthe government could charge
fishing businesses for observersin the North Pacific, which is,
in fairness, where an awful lotof the fishing activity happens
right in the United States.
(11:41):
But it didn't say anythingabout the Atlantic.
And so this group of Atlanticherring fishing businesses were
concerned when the NationalMarine Fisheries Service decided
to pass a rule that said yeah,you Atlantic herring fishermen,
you've got to pay the costs ofhaving these observers on
(12:02):
fishing businesses in theAtlantic.
The fishing businesses saidwell, wait a minute, that's not
in the law.
The North Pacific is, but itdoesn't say anything about the
Atlantic.
And the agency said well, youknow, under Chevron we think
we've got the discretion to kindof fill this gap, to interpret
the law, to do the same thing inthe Atlantic that we're doing
(12:23):
in the Pacific, right, and sothat was the challenge that went
up to the Supreme Court inLoper Bright.
The Supreme Court did basicallysay that Chevron was a mistake
and said going forward, we wantcourts to no longer give
deference to these reasonableinterpretations of the law.
(12:43):
We want the courts to give thelaws that Congress passes the
best interpretation they can.
And it's not that you shouldn'tlisten to the agency or pay
attention to what they're saying, but there's no longer this
kind of obligation to say well,if you think it's best EPA, or
you think it's best name anotheralphabet agency, right.
That we no longer have to say Iguess that's what we're going
(13:06):
to do.
So that is a fundamental changefrom Chevron.
The court was careful to saythat the court should still
consider agency expertisepractice and consistency, that
the court should still consideragency policy decisions when
Congress has expressly givenpolicymaking authority to an
(13:26):
agency.
So, in other words, loperBright really isn't about a case
where Congress says, hey, wewant to limit this kind of
pollution but we're not sureexactly what technology to
mandate.
So EPA, go figure out what thetechnology is and require that,
right.
I think in a scenario like thatthat's not a Loper-Bright case
(13:48):
really, right?
A Loper-Bright case is well,what's a stationary source?
Congress never told us right?
Or a situation where Congressaddressed what you do in the
Pacific but didn't address whatyou do in the Atlantic.
Those are the Loper-Brightcases.
Shannon Oelkers (14:03):
Back to those gray areas where the actual
legal language has someambiguity to it.
Yes, and that's clear.
Andy Leman (14:11):
Okay, and the court, really, I mean the court went
all the way back to Mayberryversus Madison.
Our job as courts is to tellpeople what the law that
Congress passed means, and we'lldo our best job at that.
And you know, if Congressdoesn't like it, congress should
pass a different law, and we'lldo our best job at that.
And if Congress doesn't like it, congress should pass a
different law, and then we'll dothat.
Shannon Oelkers (14:29):
Okay, all right .
So that's a lot of legal systemoverview and change.
Just bringing it back down toour client level, which includes
power generation utilities butalso fish processors and bulk
fuel transporters.
What changes should we expectto see with Loper Bright in sort
of the regulatory andenforcement realm where legal
(14:50):
often gets involved?
What changes are ahead for us,andy?
Well, I mean, I could imaginesomeone saying you know what
Loper Bright means?
It means the lawyers are morein charge than they were before.
I was surprised.
The lawyers said the lawyersought to do more filling these
gaps and interpreting these laws, and I think there's a degree
(15:13):
of truth to that.
But the way I look at it isthat, look, the lawyers were
making these decisions afterChevron and before Loper Bright.
It's just a question of whothey were working for, right.
Were they lawyers who hadlifetime appointments to the
federal courts who got approvedwith the advice and consent of
the Senate?
(15:33):
Or is it lawyers who got hiredby a political appointee, right
of whoever happens to be in theWhite House?
I think there's an awful lot oflawyering involved, no matter
who, and to me reasonable peoplecan disagree To me.
I do have a little moreconfidence in a judge figuring
out what a law means than thesituation we've had right, where
(15:56):
we've basically had lawyersworking for political appointees
figuring it out.
I do think it's important toremember that anytime a future
court does overturn an agencyinterpretation under Loper
Bright that maybe would havebeen okay under Chevron, it's
always going to be a decisionabout how the court reads the
(16:16):
law that Congress passed, and ifCongress doesn't like that
reading, Congress can change thelaw and effectively overrule
the court's interpretation.
Congress still has the ultimatesay here, even under Loper
Bright.
So while the workload to get it to the
Supreme Court or Congress ispretty high.
Andy Leman (16:39):
It is high, but you know what?
But it was high under Chevrontoo.
I really wonder if it will bemore fights in the courts or if
it's just going to change someof the outcomes and how some of
the cases are argued, becauseit's not like we weren't getting
.
It's just a much less steephill to climb if you disagree
with the agency.
(17:00):
So I do think it's going tohave an impact, but it may not
be all the impacts that peopleare concerned about.
Shannon Oelkers (17:09):
So that's sort of the overall national view.
Let's neck it down a little bitand look at Alaska.
What does it look like forAlaskan industries, because
we're involved in a lot of thesecases.
What does it look like forAlaskan industries, because
we're involved in a lot of thesecases?
Alaska is sort of this greatboiling pot of cases that do
somehow make their way all theway up.
So what is your expectation forAlaska?
What does that look like?
Andy Leman (17:30):
Well, let's put a pin in a little bit of that,
because I do think we need totalk about the fact that Loper
Bright really isn't, I think,going to have an impact on
Alaska state regulation.
But before we get to that, Iguess what I would say for
Alaska Industries but I thinkwould be true other places in
the country as well is certainlymy hope and expectation is that
(17:52):
over time, loper Bright isgoing to lead to less what I've
been calling whipsawing, right?
Well, less of exactly what wehad like in that Chevron case,
right Like hey, one presidenthas an EPA that says stationary
sources are going to be definedreally restrictively.
New president comes in, new EPAsays no, no, we're going to
(18:13):
have it be really broad.
I would rather just have a ruleand be able to plan for it and
have stability than have it bereally good and really bad and
kind of going back and forthevery four or eight years,
depending on who's in the WhiteHouse.
My very simplistic analogy isif you like driving on the right
(18:34):
side of the road, you wouldstill rather have the rule be
drive on the left side of theroad than have it be.
I wonder what the rule is today.
Shannon Oelkers (18:44):
Well, all of our clients, Andy, yours
included all of them have tomake plans 10 to 20 years into
the future about every capitalimprovement project, and so the
more stable these decisions are,the easier it is to spend those
millions of dollars, knowingthat they will likely still be
compliant into the future.
Andy Leman (19:03):
Yeah, yeah, certainty has real value.
And again, I'm not going to sayI've got a crystal ball and I
can promise that it's all goingto work out the way people think
it will.
But that is my hope andexpectation that it is going to
lead to more certainty, becauseit is going to be harder, I
think, for agencies to do 180sright on what the laws mean that
(19:27):
Congress passes.
Shannon Oelkers (19:28):
So presidential influence especially when we're
recording this in October of2024, presidential influence is
a big deal.
And then you mentioned thatwhiplash influence is a big deal
, and then you mentioned thatwhiplash.
So, with Loper Bright, talk alittle more about how that's
going to tone that down, becauseelections matter, obviously,
but I know a lot of like at thelast election.
There was a lot of breathholding and a lot of capital
(19:49):
improvement projects just didnot go until the election was
done, right.
So walk me through presidentialinfluence in this legal realm.
Andy Leman (19:57):
I mean it's still going to matter a lot.
I mean, even the judges thatwe're talking about, right, like
Supreme Court justices, getnominated by the president,
approved by the Senate.
But it's not as dramatic aneffect as a whole new set of
agency heads and secretaries ofdepartments taking over whenever
a new president comes in.
I mean, and elections stillmatter, even if you're just kind
(20:20):
of looking narrowly at LoperBright, because there are still
going to be situations wherecourts are going to defer to
agencies and they're certainlygoing to listen to agencies.
But if they think an agency iswrong, they're going to be less
hesitant to say so.
And I guess the other way thatI think it's going to have an
(20:41):
influence is, even under LoperBright, even if you are sure the
agency is wrong, that is goingto be a long and expensive fight
to prove that point right andsometimes, frankly, it might be
so expensive it's not worthfighting right.
So who gets the initial say atwell, it might be so expensive
(21:04):
it's not worth fighting Right.
So who gets the initial sayWell, this is what we think it
means Right and you're welcometo go challenge it, but it
doesn't mean your challenge isgoing to be successful or
economically worth it.
So yeah, I think it's stillgoing to be a big deal.
I mean, you kind of talked aboutsome of the meme wars around
this decision that came out andI do think there's some pretty
(21:24):
shallow analysis out there.
In the media Everything getspainted as red versus blue or
pro-industry or pro-environment,and I like to remind people hey
, the Chevron case that just gotoverturned led to a great
result for industry, right?
And Chevron has been usedsuccessfully to support and
(21:46):
attack agency interpretationsthat were pro-industry or
pro-green.
It's very much been an equalopportunity doctrine, and I
think Loper Bright is too.
It's going to be used to attackagency interpretations that are
pro-industry.
It's going to be used to attackinterpretations that are
anti-industry.
Right, it is a tool that'savailable for everyone, it's not
(22:09):
a one-sided tool.
Shannon Oelkers (22:11):
Speaking of that tool, andy, this is
something and I have no ideawhat the answer is, but I
definitely have had clients askme is this going to affect
things in the past?
Like is this you know, if itwas decided under the Chevron
rule, could we go back andreinterpret it under Loper
Bright?
I don't know the answer.
What are your thoughts?
Andy Leman (22:28):
Well, before I answer that, in typical lawyerly
fashion, I'm going to saysomething a little weaselly here
that I do want to make clearProbably should have done at the
beginning, right that I'm notgiving legal advice or
recommendations today.
If it were legal advice, I'd besending your listeners a bill.
But I will say that, yeah, I dothink that when it comes to
(22:51):
challenging long-establishedinterpretations, there may be
some more room to do that.
There was another Supreme Courtcase that was decided in 2024.
That said, under theAdministrative Procedure Act,
which is kind of the umbrellalaw for administrative actions
in the federal government,there's a six-year limit on
(23:13):
bringing a lawsuit to challengean interpretation, right.
And the court said, well, youdon't measure that six years
from when the regulation cameout.
You measure it from when theperson who's challenging it got
hurt by it, right.
So that might be a long, longtime after that regulation came
(23:34):
in.
So that could be a really longtime.
But if we're talking aboutregulations right that came out
and were tested in the courtsunder Chevron and the courts
said, hey, this is reasonable,we're going to affirm it.
The court was pretty careful inLoper Bright to say we're not
going to have a field day and goback and relitigate all of
(23:55):
those, that there is thisdoctrine in the courts that the
court should be reluctant to goback and overturn past decisions
.
And the court, I think, wastrying to telegraph to the lower
courts and to all of us that itwould have to be a pretty
special circumstance for a courtto go back and say, oh yeah,
that was okay under Chevron butit's not okay under Loper Bright
(24:18):
.
I think they were looking at itas more of a forward-looking
doctrine.
At the same time, to me I dowonder if Loper Bright's going
to be as easy to kind of keep inthe corral as the court is
hoping.
Because it's just why wouldn'tyou right, if you think there's
a better interpretation, kind oftake your shot and try to make
(24:40):
that argument that, hey, maybethis is one of those special
cases or that past case was justso wrong, right, we just don't
know.
But the court certainly putdown a marker that they do not
expect to have a wholesalerevisiting of 40 years worth of
court decisions, eitheraffirming or not affirming what
(25:01):
interpretations were reasonable.
But on a forward-looking basisit is going to be less
deferential to the agencies.
Shannon Oelkers (25:09):
All I can think of is the definition of
navigable water.
Andy, I feel like that's goingto be one that, if I had to pick
one and I am not a lawyer, Ijust do regulatory work but that
one is probably the mostcontested in what we do and has
been through the ringer, and Ican see someone using this tool
that direction and has gone backand forth multiple times and a
(25:31):
lot of other issues has hadSupreme Court attention and
interpretation Right, I meanyeah, it's the messiest thing we
do legally Navigable water andair reporting those are the two
most difficult things.
Yeah, yeah, yeah.
So, um, yeah, thank you,especially in March when we have
to put all the reporting in.
You can call me then and giveit to me then.
(25:52):
So, moving forward, and some ofthis is maybe just a definition
piece, but in our work we do alot of settlement.
It's not necessarily litigation, but we do a lot of settlement
and I do have clients askinglike is this going to impact
settlement at all, or is itsolely impacting like litigation
and the outfalls of that?
Andy Leman (26:12):
Yeah Well, so let's look at it in two buckets.
Right?
Let's talk about oldsettlements.
Right, your clients have donesettlements.
I've had clients that have donesettlements right.
I don't think this really hasany impact on those right.
When you settle something, yousettle it right, it's done.
If the law gets worse or betterright, it doesn't change what
(26:34):
your settlement was.
So I don't think we're going tosee much impact there.
But certainly if you had a newenforcement action, even if it
was kind of relating to the sameissue, but the issues come up
again maybe you get a differentsettlement or you get a
different result, because nowthere's an opportunity to try to
(26:55):
push back and say, no, yourinterpretation of the law isn't
correct.
And of course, there's lots ofongoing litigation out there
over regulations right, all thetime.
I'm sure all the lawyers workingon those cases have been
scrambling right to write theirnew legal briefs using a loper
bright way of looking at things.
You know it's a good thing totalk to your lawyer about.
(27:17):
But the one thing I would sayabout forward looking is to the
extent that agencies are goingto feel like they're more
limited in what they can dothrough their formal
interpretations, that they mayfeel like informal right, like
if they can get somebody toagree to a settlement, it
doesn't really matter that maybethat person could have gone and
(27:38):
fought and gotten a differentresult from a different
interpretation of the law.
So I do think there's alwayslots of incentive to settle
cases on both sides, but maybethere's even a little bit more
on the agency side, maybethere's a little less on the
private sector side.
If you're willing to spend themoney right, if you want to buy
your lawyer a boat and help themsend their kid to college, then
(28:00):
I say God bless you.
Shannon Oelkers (28:03):
Or maybe industry groups have more
opportunity to bring these up asa specific you know like,
because there's lobbying groupsand there's different industry
groups that can target some ofthese really unfair or what they
perceive to be unfairinterpretations to get their
voice heard.
I do like that piece of thisnew legislation.
Okay, so we've talked a lotabout federal impacts, because
(28:25):
this is a federal law.
How's that going to look at thestate level, how does states
interpret this?
And maybe bring it back toAlaska, since a lot of our
clients are Alaskan.
Andy Leman (28:34):
Yeah, and of course I'm only licensed in Alaska, so
everything I'm talking about isabout Alaska.
Shannon Oelkers (28:39):
You're not giving legal advice, so it's
okay.
Yeah, let's focus on Alaskathen.
So what does it look like forAlaska?
Andy Leman (28:46):
So I mean, Chevron is a federal court decision
about how federal courts shouldinterpret federal law and I
don't think it changes statecourt standards for how to
interpret state law.
It might persuade some statecourts to do something
differently, but it'll bebecause they're persuaded, not
because they have to.
In Alaska, for example, ourstate court never adopted the
(29:10):
Chevron standard and I don'tanticipate that they're going to
adopt Loper Bright either.
They've kind of charted theirown course.
In Alaska the standard is thatthe courts will defer to
agencies' reasonableinterpretations when they
implicate the agency's expertiseor determine policy within the
scope of the agency's function.
(29:31):
So it's kind of saying yeah,there's some laws where we'll
defer to agencies where, frankly, we think they are in a
position to do a better job thanthe courts, but otherwise the
court's going to exercise itsindependent judgment.
In other words, it's going topick the best interpretation.
It's not really a Chevronstandard or a Loper-Bright
(29:52):
standard, right it's.
I don't know if you call it ahybrid or somewhere in between,
but it is a well-establishedstandard in Alaska and I
wouldn't expect that to changewhen you're talking about
interpreting Alaska law, right?
Shannon Oelkers (30:07):
Yeah, okay, so Alaska likes to be independent.
Do it its own way.
That's right On brand for usAll right.
So we have talked a lot aboutLoper Bright, but when I
listened to you at the APA, youmentioned that it's been a
really interesting year for theSupreme Court.
Are there any other cases ordecisions that maybe our
listeners should know about thatcould potentially impact
environmental litigation?
Andy Leman (30:29):
Yeah, I mean to me the Supreme Court is always
interesting, but particularlyinteresting to kind of regulated
industries.
This year, yeah, in addition toLoper Bright, we had a decision
in a case called Ohio versusEPA.
It was a challenge to the EPA'sapproval of a good neighbor
plan, again under the Clean AirAct, the EPA.
(30:52):
The important thing to know, Ithink, is just the EPA got a lot
of public comments fromindustry as it was looking at
this issue.
That pointed out some prettyserious problems and issues with
the plan and when EPA issuedits final rule, it never really
even tried to address thosecomments.
You know it basically ignoredthem and the Supreme Court said
(31:14):
look, you don't necessarily haveto agree with those comments or
do what they're asking you todo, but you can't just ignore
them and pretend nobody saidanything.
You've got to provide some kindof an explanation and I do
think that's helpful and itshould cut both ways Right.
Both ways right.
It's not a again, it was apro-industry result here, but
(31:37):
you could just as easily see ifyou had a less pro-environment
right president in office, youcould see that getting used the
other direction as well.
But really the other kind oflandmark case that I think goes
hand in hand with Loper Bright,was one that didn't have
anything to do withenvironmental regulation.
It was an SEC, a Security andExchange Commission case SEC
(32:03):
versus JARCSEE and the SEC hadimposed fines on someone for
violating securities laws,something they've been doing for
quite some time.
There was no court trial orjury trial right.
It didn't go to civil court.
It was all handled internallythrough the SEC's administrative
process.
I'm sure for folks in yourworld would remind people of
(32:26):
what the process looks like whenthe environmental regulators
come knocking and say you didn'tfile your reports right or you
had a spill and we're going tofine you right.
The Supreme Court said hey, youcan't impose civil penalties on
someone through anadministrative process.
(32:48):
We have a constitution and theconstitution promises the right
to a jury trial, and even in acivil case, I haven't heard an
argument yet for why thatreasoning in the SEC case
wouldn't also apply to civilpenalties issued by the EPA or
the Corps of Engineers or anyother federal agency.
Shannon Oelkers (33:06):
So does that apply to individuals or does it
apply to corporations acting asthe individual?
Andy Leman (33:12):
Yeah, I mean I would think it would apply regardless
.
Right Interesting, there was anindividual though in that case
and the whole issue of when is acorporation a person and when
are they not is an interestingone too, Right up there with
navigable water we have to waitand see right, but I would kind
of expect that it wouldn'tmatter, wouldn't matter.
(33:37):
So I think, if you're going togo, if you really want to fight
and you don't want to settle, itdoes seem like it's opening the
doors to saying, hey, we're notjust going to have people in
the agency deciding whether wedid wrong and how much right
that they're going to have to goget a jury to sign off on that.
Now, you know, is that going togive regulated businesses more
leverage to get favorablesettlements?
(33:57):
Will it encourage agencies tolevy bigger fines or threaten?
bigger fines to try to get youto settle and not go to civil
court.
We just don't know.
One thing I do know is thatcivil trials are one of the most
expensive things you can pay alawyer to do for you, right, are
one of the most expensivethings you can pay a lawyer to
(34:18):
do for you, right?
There's a reason why so manycivil cases settle or get
resolved through arbitration ormediation.
So I'd be a little surprised ifwe saw a lot of these penalty
cases going to civil trials.
But it is definitely going tochange the process for finding
facts when people aren't willingto settle, related to
violations of environmentalstandards and really any other
(34:40):
administrative penalty process.
So probably more court cases,fewer administrative hearings.
That is a case where I thinkI'm not so sure.
Loper Bright increases thecourt's workload that much.
I think they were already doingthat work.
It just kind of changes what itlooks like, but, darcy, seems
like it might actually mean morecourt cases, right?
Shannon Oelkers (35:03):
Well, and I think it's important for our
clients to keep it in mind ifthey go through an
administrative settlementprocess, because that may be
driving up some of those civilpenalties.
And when you're negotiating,it's helpful to understand what
levers are being pulled on theback end.
Andy Leman (35:17):
For sure, yeah, sure .
So my advice is talk to yourlawyer about it.
Shannon Oelkers (35:24):
Amen, all right .
So my last question is just forfun, andy do you have any
interesting or fun stories youwant to share with our viewers
about living and working inAlaska, because we're all
Alaskan.
We all have that story.
Andy Leman (35:36):
Yeah, yeah, I mean, once upon a time we had a well,
very well-loved client of thefirm.
Call our lawyers the graypeople, because she said we
weren't any fun.
And I mean I'm not going to sayI wasn't a little offended by
(35:57):
that, but it was also like well,does the truth hurt, right?
Shannon Oelkers (36:00):
Were you wearing a gray suit when she
said this?
Andy Leman (36:03):
I yeah, and you know you've.
How many times have you been toa party and heard someone say,
hey, you know it would liventhis up.
A utility lawyer, right, lawyerright.
Shannon Oelkers (36:15):
Well, your presentation was one of the best
ones I've ever seen from alawyer.
You were very entertaining, soI think you're the exception to
the rule, andy.
Andy Leman (36:29):
That's very kind.
Now a lot of Alaska interestingstories end up being fatal or
near fatal, so I'm actually kindof grateful that I don't really
have any.
The closest I get to that is Idid have a big meeting with a
board that I had to fly out toonce.
It was a zero dark 30 departurewhere I wasn't completely awake
, probably.
When I got up, family was allasleep, pitch black in the house
, got dressed as quietly as Icould, tried not to turn any of
(36:53):
the lights on, got out to my car, drove over to the airport I
could tried not to turn any ofthe lights on got out to my car,
drove over to the airport,started walking towards the
terminal and as I really startedwalking, it just felt like
something was off, like somehowone of my legs had gotten longer
than the other overnight, and Ilooked down under those bright
lights in the garage and saw oneblack dress shoe and one brown
(37:16):
dress shoe.
Shannon Oelkers (37:18):
It wasn't just your socks that you could kind
of skate by with no no, no, theywere in the dark.
Andy Leman (37:25):
Granted, they may have looked like the same color,
but yeah so, and of course Iwas cutting it last minute, did
not have time to go back and doa swap out, so I just went ahead
and limped to the plane and Itexted the manager I was working
with at the time and, luckily,he had a son who had a pair of
(37:47):
what he referred to as weddingslash funeral shoes that were
his feet were only slightlybigger than mine.
So, I had all these contingencyplans for how I would be able to
sit at the table and wouldnever have to get up or walk
around the room so that,hopefully, no one would see my
feet.
I did not have to execute anyof those plans.
(38:09):
Yeah, I worked with thatmanager for many years after and
he, he still likes to remind meevery once in a while to check
my shoes before I yeah, everytime, I am sure.
Shannon Oelkers (38:23):
Well, andy, it has been a genuine pleasure to
have you on the podcast.
Thank you for having put somuch thought into these answers.
I think this is going to bereally helpful to all of our
listeners in sort of applyingall the.
You know there's a lot ofanalysis and articles and memes
and Twitter and everything, butI really like our conversation.
(38:43):
I feel like is a good guidancefor, like, how to manage your
operation facility business andnavigate the next couple of
years and sort of understandwhat to look out for and maybe
what to pay attention to andwhat to pay less attention to.
So I appreciate that you gaveus those tools and thank you so
much for coming on.
Andy Leman (39:00):
Well, thanks for having me.
Shannon Oelkers (39:01):
All right, thank you so much, andy.
We will go ahead and includesome links to those court cases
that Andy mentioned in our shownotes.
And again, andy, just a genuinepleasure to have you.
Thanks, hi there.
This is Shannon Oelkers and, asthe owner of Integrity
Environmental, I wanted to takea minute here at the end of the
podcast to make sure that youknew the following this podcast
(39:26):
is for informational purposesonly and should not be
considered legal or regulatoryadvice.
We are not responsible for anylosses, damages or liabilities
that may arise from the use ofthis podcast.
This podcast is not intended toreplace professional regulatory
or legal advice, and the viewsexpressed in this podcast may
not be those of the host thatwould be me or Integrity
Environmental.
Thank you very much forlistening and if you do need
(39:47):
professional regulatory advice,we'd be happy to help you as
part of our consulting services.
Thank you for joining us.
You're listening to Tank Talkwith Integrity Environmental,
where we speak with founder,principal consultant and bulk
fuel storage expert ShannonOlters, about regulations,
safety and useful tips forsmooth sailing through the bulk
fuel storage industry.
Come learn the unique joys ofworking life in Alaska with
industry experts, including ourteam, vendors we work with and
companies we support.
(00:30):
Good morning.
Shannon Oelkers (00:35):
Welcome to Tank Talk Season 2.
This is Shannon, and I am heretoday with Andy Lehman.
He is a shareholder with Kemple, huffman and Ellis and he is
here today to help us navigatethe Loper-Bright rule.
I really wanted his legalperspective on environmental
policy.
I heard him speak at the APAconference and I literally
(00:55):
walked right up to himafterwards and said please come
on the podcast.
Our clients need what you have.
So, Andy, our firm frequentlyprepares technical responses for
our clients, along with theirlegal teams.
We handle the regulatory side,their legal team handles the
legal, and this is all relatedto environmental compliance
actions.
And in the past 15 years thatwe've been doing this, the
(01:16):
federal agencies have had a realwide latitude in interpreting
what we call gray areas ofregulation, and they seem to get
bigger every year.
But this year, with the passingof Loper Bright, a lot of our
clients have been calling uswith all these questions about
what that means going forward.
So I'm really excited andpleased to welcome you to the
show to share some of yourknowledge with that.
So I would really like you tostart off by introducing
(01:39):
yourself and maybe giving us anoverview of your background.
How did you get into legal work?
Andy, I'm curious.
Andy Leman (01:46):
Well, thanks for having me on the show, Shannon.
After law school I actuallyended up with two legal
clerkships that were going to beup here in Alaska.
Clerkship is when a lawyerworks closely with a judge on
cases that are coming beforecourt, usually something you do
right after law school.
I had a year with the AlaskaSupreme Court here in Anchorage
(02:08):
and another year with JudgeKleinfeld on the Ninth Circuit
Court of Appeals up in Fairbanks.
I told my mother that I wasonly going to be in Alaska for
two years and then I'd beleaving.
And well, those two years endedin 1997 and mom's still waiting
.
Shannon Oelkers (02:24):
Crying at Christmas.
Andy Leman (02:26):
Yeah Well, there've been a lot of trips home to
visit right To try to make upfor it.
But no, I guess I am a utilitylawyer.
That's probably the best way todescribe me.
I never had any aspiration tobe a utility lawyer but that's
where I landed.
After my clerkships ended Iwalked into Kemple Huffman Ellis
(02:47):
in 1997 and never left.
So my work is primarily withAlaska Electric and Telecom
Utilities and most of thoseutilities are member-owned
cooperatives Also work with thestatewide Electric Power
Association.
That's where we met and I do alot of work on labor and
employment, general counsel,cooperative issues.
(03:08):
Maybe of more interest to youraudience is that I do work with
a number of rural electricutilities on their bulk fuel
purchasing.
Bulk fuel purchase and deliveryand storage, of course, is a
big deal in Western Alaska and Ihave occasionally had to help
out with tank farm constructionprojects and real estate
(03:29):
disputes, legal disputes relatedto those tank farms.
So yeah, that's the 30 secondtour of my career.
Shannon Oelkers (03:37):
Thank you for that and related to that.
We've got Loper Bright.
We've got clients asking whatdoes that mean for us?
Could you sort of justsummarize up the Loper Bright
situation for maybe people whoaren't as familiar with it?
Andy Leman (03:50):
Well, I guess my snarky answer is that no one,
including probably the SupremeCourt justices, really knows how
Loper Bright is going to impactthe judicial system and the
regulatory environment.
So thanks for having me, it'sbeen great.
We'll have to do it againsometime.
Shannon Oelkers (04:11):
The end.
Andy Leman (04:11):
Yeah, no, I do think we can make some informed
guesses about what Loper Brightis going to mean, but I do think
it's also really a time willtell situation.
It is a big, big change.
Like a lot of other big changes, people don't always anticipate
correctly what the collateraleffects, what the fallout of
those changes is going to looklike.
Shannon Oelkers (04:27):
So at the root of Loper-Bright is a decision
that's much older and that's thefederal Chevron rule, and I
think our listeners wouldbenefit if you don't mind, andy,
taking us through what theChevron rule is, because we
really have to understand that,I think, to understand why
Loper-Bright's important andwhat it's changing that.
Andy Leman (04:51):
Sure, sure, well, so , of course, for non-lawyers out
there, lawyers like to refer tolegal cases by the name of one
of the parties to the lawsuit,and Chevron everybody, I think,
knows who Chevron is was one ofthe parties in that case.
It was a case that made its wayto the US Supreme Court in 1984
.
It was a case about the CleanAir Act, right, the federal law
that was supposed to reduce airpollution, improve air quality.
(05:13):
And the issue in that case, inChevron, was how do you define a
new or modified stationarysource of air pollution?
To me, the real key words werestationary source, right, what's
a stationary source?
So the EPA had issuedregulations back in 1981 that
(05:34):
allowed states to use adefinition of stationary source
that was basically broad enoughto cover a whole power plant,
right, or a whole they're notall power plants, right but a
whole plant as opposed to likeindividual pollution sources
within a plant.
And that 1981 EPA definitionwas actually pretty favorable to
(05:55):
industry, because it's a heckof a lot easier to meet
pollution goals if you can lookat the whole plant as a source
instead of like smokestack bysmokestack, right, like you can
do some offsetting, you can dosome.
Hey, I'm going to shut thisdown but build something new
over here.
Right?
And by the way, I think this isinteresting that 1981 EPA
(06:19):
definition was not the firsttime EPA had tried to define
what a state resource was.
No, there was a 1977 definitionwhen their right would have
been a different president inoffice, appointing different EPA
officials.
That was a lot stricter.
So this 1981 decision waspretty industry friendly and the
(06:40):
industry, I think, was happy,right, happier certainly than
they were with the 1977definition.
The Natural Resources DefenseCouncil didn't like that 1981
redefinition.
They wanted something morerestrictive.
The industry players, includingChevron, stepped in to defend
EPA's interpretation.
So you know, in our courtsystem at the federal level
(07:20):
there's kind of three levels,right, there's the trial courts,
then there's the modifiedstationary source in this law
that Congress passed and itreally wasn't addressed in the
legislative history.
Legislative history is likewhat lawyers would you know the
debates, the reports in Congressand congressional committees.
It wasn't really addressed inthat legislative history.
But the purpose of the law wasto improve air quality.
(07:42):
So we, the court, the judges,think EPA got it wrong and
should not have done thisredefinition right.
Of course industry was nothappy with that and got the case
in front of the Supreme Court.
When Chevron got to the USSupreme Court, the court agreed
that there really wasn'tanything in the law that
Congress passed or in thelegislative history to help
(08:04):
define what a stationary sourcewas.
In fact, the court said if youreally looked at the history,
you see that Congress was tryingto balance the interests of
clean air economic growth.
Right, and there were thingsyou could have cherry picked
either way.
Right, but the overall historydidn't point in one direction.
The court said in a situationlike that, courts ought to defer
(08:27):
to the interpretation from theagency that's charged with
enforcing the law right, inChevron's case the EPA.
And they said even in a caselike this one, where the agency
has changed its mind right abouthow to interpret the law,
courts ought to defer to it.
And, by the way, industry,environmental groups, whoever's
(08:48):
unhappy with what's happening,if you don't like it, go ask
Congress to change it, don't askjudges to change it.
So the rule that we kind ofpull out a chevron at the end is
that when an agency interpretsthe law, of course the courts
are going to tell agencies tofollow what Congress said.
(09:09):
But the issue in Chevron wasCongress didn't really say
anything, right?
If the law is silent or it'sambiguous on an issue, then the
courts would ask whether theagency's interpretation is
reasonable and by reasonable.
the agency's interpretation isreasonable and by reasonable we
mean is it within the zone rightof possible readings of the law
(09:31):
?
Shannon Oelkers (09:31):
Reasonable is a great word Andy.
Andy Leman (09:37):
Yeah, the entire American legal system hinges on
the word reasonable, right youknow if it's reasonable, even if
it's not the one the courtwould have picked if somebody
had said hey court, what do youthink this means?
As long as the agency'sinterpretation is reasonable,
the courts aren't going to messwith it when we're talking about
an issue where there wassilence or ambiguity from
Congress and so Chevron reallydid put agencies in the lead
(09:58):
role when it came tointerpreting laws that Congress
passed, that were ambiguous orhad gaps in them.
Shannon Oelkers (10:12):
So that deferral to these lead agencies
is, until now, what we haveoperated under.
So if the lead agency is theEPA, they decide to do something
a certain way.
Going to the court systemprobably won't get you very far.
Andy Leman (10:19):
I mean it is interesting I think if you read
Loper Bright, the court kind ofsays yeah we made this general
rule and we spent the next 40years making exceptions to it.
Shannon Oelkers (10:29):
Fair enough.
Andy Leman (10:30):
That were very hard to keep track of and predict and
that does kind of lead tothat's part of what leads to the
Loper Bright decision.
Shannon Oelkers (10:39):
Okay, so let's talk specifically about Loper
Bright.
This happened in June of 2024.
There was a great meme warafter it passed, which I think
is primarily why we got so muchclient chatter about it.
But could you just give us abrief overview of that ruling
and then just sort of tie itback to that Chevron?
Andy Leman (10:56):
Yeah, so Loper Bright was a very different case
from Chevron; It was a bunch ofAtlantic herring fishing
businesses challenging aNational Marine Fisheries
Service decision.
Interpreting theMagnuson-Stevens Act right named
after Ted Stevens, our latesenator in Alaska.
So it does have a little Alaskaconnection right.
(11:20):
But there was an issue aboutfishing vessels carrying
observers right to make surethat the fishing laws are being
followed.
The law specifically said thatthe government could charge
fishing businesses for observersin the North Pacific, which is,
in fairness, where an awful lotof the fishing activity happens
right in the United States.
(11:41):
But it didn't say anythingabout the Atlantic.
And so this group of Atlanticherring fishing businesses were
concerned when the NationalMarine Fisheries Service decided
to pass a rule that said yeah,you Atlantic herring fishermen,
you've got to pay the costs ofhaving these observers on
(12:02):
fishing businesses in theAtlantic.
The fishing businesses saidwell, wait a minute, that's not
in the law.
The North Pacific is, but itdoesn't say anything about the
Atlantic.
And the agency said well, youknow, under Chevron we think
we've got the discretion to kindof fill this gap, to interpret
the law, to do the same thing inthe Atlantic that we're doing
(12:23):
in the Pacific, right, and sothat was the challenge that went
up to the Supreme Court inLoper Bright.
The Supreme Court did basicallysay that Chevron was a mistake
and said going forward, we wantcourts to no longer give
deference to these reasonableinterpretations of the law.
(12:43):
We want the courts to give thelaws that Congress passes the
best interpretation they can.
And it's not that you shouldn'tlisten to the agency or pay
attention to what they're saying, but there's no longer this
kind of obligation to say well,if you think it's best EPA, or
you think it's best name anotheralphabet agency, right.
That we no longer have to say Iguess that's what we're going
(13:06):
to do.
So that is a fundamental changefrom Chevron.
The court was careful to saythat the court should still
consider agency expertisepractice and consistency, that
the court should still consideragency policy decisions when
Congress has expressly givenpolicymaking authority to an
(13:26):
agency.
So, in other words, loperBright really isn't about a case
where Congress says, hey, wewant to limit this kind of
pollution but we're not sureexactly what technology to
mandate.
So EPA, go figure out what thetechnology is and require that,
right.
I think in a scenario like thatthat's not a Loper-Bright case
(13:48):
really, right?
A Loper-Bright case is well,what's a stationary source?
Congress never told us right?
Or a situation where Congressaddressed what you do in the
Pacific but didn't address whatyou do in the Atlantic.
Those are the Loper-Brightcases.
Shannon Oelkers (14:03):
Back to those gray areas where the actual
legal language has someambiguity to it.
Yes, and that's clear.
Andy Leman (14:11):
Okay, and the court, really, I mean the court went
all the way back to Mayberryversus Madison.
Our job as courts is to tellpeople what the law that
Congress passed means, and we'lldo our best job at that.
And you know, if Congressdoesn't like it, congress should
pass a different law, and we'lldo our best job at that.
And if Congress doesn't like it, congress should pass a
different law, and then we'll dothat.
Shannon Oelkers (14:29):
Okay, all right .
So that's a lot of legal systemoverview and change.
Just bringing it back down toour client level, which includes
power generation utilities butalso fish processors and bulk
fuel transporters.
What changes should we expectto see with Loper Bright in sort
of the regulatory andenforcement realm where legal
(14:50):
often gets involved?
What changes are ahead for us,andy?
Well, I mean, I could imaginesomeone saying you know what
Loper Bright means?
It means the lawyers are morein charge than they were before.
I was surprised.
The lawyers said the lawyersought to do more filling these
gaps and interpreting these laws, and I think there's a degree
(15:13):
of truth to that.
But the way I look at it isthat, look, the lawyers were
making these decisions afterChevron and before Loper Bright.
It's just a question of whothey were working for, right.
Were they lawyers who hadlifetime appointments to the
federal courts who got approvedwith the advice and consent of
the Senate?
(15:33):
Or is it lawyers who got hiredby a political appointee, right
of whoever happens to be in theWhite House?
I think there's an awful lot oflawyering involved, no matter
who, and to me reasonable peoplecan disagree To me.
I do have a little moreconfidence in a judge figuring
out what a law means than thesituation we've had right, where
(15:56):
we've basically had lawyersworking for political appointees
figuring it out.
I do think it's important toremember that anytime a future
court does overturn an agencyinterpretation under Loper
Bright that maybe would havebeen okay under Chevron, it's
always going to be a decisionabout how the court reads the
(16:16):
law that Congress passed, and ifCongress doesn't like that
reading, Congress can change thelaw and effectively overrule
the court's interpretation.
Congress still has the ultimatesay here, even under Loper
Bright.
So while the workload to get it to the
Supreme Court or Congress ispretty high.
Andy Leman (16:39):
It is high, but you know what?
But it was high under Chevrontoo.
I really wonder if it will bemore fights in the courts or if
it's just going to change someof the outcomes and how some of
the cases are argued, becauseit's not like we weren't getting
.
It's just a much less steephill to climb if you disagree
with the agency.
(17:00):
So I do think it's going tohave an impact, but it may not
be all the impacts that peopleare concerned about.
Shannon Oelkers (17:09):
So that's sort of the overall national view.
Let's neck it down a little bitand look at Alaska.
What does it look like forAlaskan industries, because
we're involved in a lot of thesecases.
What does it look like forAlaskan industries, because
we're involved in a lot of thesecases?
Alaska is sort of this greatboiling pot of cases that do
somehow make their way all theway up.
So what is your expectation forAlaska?
What does that look like?
Andy Leman (17:30):
Well, let's put a pin in a little bit of that,
because I do think we need totalk about the fact that Loper
Bright really isn't, I think,going to have an impact on
Alaska state regulation.
But before we get to that, Iguess what I would say for
Alaska Industries but I thinkwould be true other places in
the country as well is certainlymy hope and expectation is that
(17:52):
over time, loper Bright isgoing to lead to less what I've
been calling whipsawing, right?
Well, less of exactly what wehad like in that Chevron case,
right Like hey, one presidenthas an EPA that says stationary
sources are going to be definedreally restrictively.
New president comes in, new EPAsays no, no, we're going to
(18:13):
have it be really broad.
I would rather just have a ruleand be able to plan for it and
have stability than have it bereally good and really bad and
kind of going back and forthevery four or eight years,
depending on who's in the WhiteHouse.
My very simplistic analogy isif you like driving on the right
(18:34):
side of the road, you wouldstill rather have the rule be
drive on the left side of theroad than have it be.
I wonder what the rule is today.
Shannon Oelkers (18:44):
Well, all of our clients, Andy, yours
included all of them have tomake plans 10 to 20 years into
the future about every capitalimprovement project, and so the
more stable these decisions are,the easier it is to spend those
millions of dollars, knowingthat they will likely still be
compliant into the future.
Andy Leman (19:03):
Yeah, yeah, certainty has real value.
And again, I'm not going to sayI've got a crystal ball and I
can promise that it's all goingto work out the way people think
it will.
But that is my hope andexpectation that it is going to
lead to more certainty, becauseit is going to be harder, I
think, for agencies to do 180sright on what the laws mean that
(19:27):
Congress passes.
Shannon Oelkers (19:28):
So presidential influence especially when we're
recording this in October of2024, presidential influence is
a big deal.
And then you mentioned thatwhiplash influence is a big deal
, and then you mentioned thatwhiplash.
So, with Loper Bright, talk alittle more about how that's
going to tone that down, becauseelections matter, obviously,
but I know a lot of like at thelast election.
There was a lot of breathholding and a lot of capital
(19:49):
improvement projects just didnot go until the election was
done, right.
So walk me through presidentialinfluence in this legal realm.
Andy Leman (19:57):
I mean it's still going to matter a lot.
I mean, even the judges thatwe're talking about, right, like
Supreme Court justices, getnominated by the president,
approved by the Senate.
But it's not as dramatic aneffect as a whole new set of
agency heads and secretaries ofdepartments taking over whenever
a new president comes in.
I mean, and elections stillmatter, even if you're just kind
(20:20):
of looking narrowly at LoperBright, because there are still
going to be situations wherecourts are going to defer to
agencies and they're certainlygoing to listen to agencies.
But if they think an agency iswrong, they're going to be less
hesitant to say so.
And I guess the other way thatI think it's going to have an
(20:41):
influence is, even under LoperBright, even if you are sure the
agency is wrong, that is goingto be a long and expensive fight
to prove that point right andsometimes, frankly, it might be
so expensive it's not worthfighting right.
So who gets the initial say atwell, it might be so expensive
(21:04):
it's not worth fighting Right.
So who gets the initial sayWell, this is what we think it
means Right and you're welcometo go challenge it, but it
doesn't mean your challenge isgoing to be successful or
economically worth it.
So yeah, I think it's stillgoing to be a big deal.
I mean, you kind of talked aboutsome of the meme wars around
this decision that came out andI do think there's some pretty
(21:24):
shallow analysis out there.
In the media Everything getspainted as red versus blue or
pro-industry or pro-environment,and I like to remind people hey
, the Chevron case that just gotoverturned led to a great
result for industry, right?
And Chevron has been usedsuccessfully to support and
(21:46):
attack agency interpretationsthat were pro-industry or
pro-green.
It's very much been an equalopportunity doctrine, and I
think Loper Bright is too.
It's going to be used to attackagency interpretations that are
pro-industry.
It's going to be used to attackinterpretations that are
anti-industry.
Right, it is a tool that'savailable for everyone, it's not
(22:09):
a one-sided tool.
Shannon Oelkers (22:11):
Speaking of that tool, andy, this is
something and I have no ideawhat the answer is, but I
definitely have had clients askme is this going to affect
things in the past?
Like is this you know, if itwas decided under the Chevron
rule, could we go back andreinterpret it under Loper
Bright?
I don't know the answer.
What are your thoughts?
Andy Leman (22:28):
Well, before I answer that, in typical lawyerly
fashion, I'm going to saysomething a little weaselly here
that I do want to make clearProbably should have done at the
beginning, right that I'm notgiving legal advice or
recommendations today.
If it were legal advice, I'd besending your listeners a bill.
But I will say that, yeah, I dothink that when it comes to
(22:51):
challenging long-establishedinterpretations, there may be
some more room to do that.
There was another Supreme Courtcase that was decided in 2024.
That said, under theAdministrative Procedure Act,
which is kind of the umbrellalaw for administrative actions
in the federal government,there's a six-year limit on
(23:13):
bringing a lawsuit to challengean interpretation, right.
And the court said, well, youdon't measure that six years
from when the regulation cameout.
You measure it from when theperson who's challenging it got
hurt by it, right.
So that might be a long, longtime after that regulation came
(23:34):
in.
So that could be a really longtime.
But if we're talking aboutregulations right that came out
and were tested in the courtsunder Chevron and the courts
said, hey, this is reasonable,we're going to affirm it.
The court was pretty careful inLoper Bright to say we're not
going to have a field day and goback and relitigate all of
(23:55):
those, that there is thisdoctrine in the courts that the
court should be reluctant to goback and overturn past decisions
.
And the court, I think, wastrying to telegraph to the lower
courts and to all of us that itwould have to be a pretty
special circumstance for a courtto go back and say, oh yeah,
that was okay under Chevron butit's not okay under Loper Bright
(24:18):
.
I think they were looking at itas more of a forward-looking
doctrine.
At the same time, to me I dowonder if Loper Bright's going
to be as easy to kind of keep inthe corral as the court is
hoping.
Because it's just why wouldn'tyou right, if you think there's
a better interpretation, kind oftake your shot and try to make
(24:40):
that argument that, hey, maybethis is one of those special
cases or that past case was justso wrong, right, we just don't
know.
But the court certainly putdown a marker that they do not
expect to have a wholesalerevisiting of 40 years worth of
court decisions, eitheraffirming or not affirming what
(25:01):
interpretations were reasonable.
But on a forward-looking basisit is going to be less
deferential to the agencies.
Shannon Oelkers (25:09):
All I can think of is the definition of
navigable water.
Andy, I feel like that's goingto be one that, if I had to pick
one and I am not a lawyer, Ijust do regulatory work but that
one is probably the mostcontested in what we do and has
been through the ringer, and Ican see someone using this tool
that direction and has gone backand forth multiple times and a
(25:31):
lot of other issues has hadSupreme Court attention and
interpretation Right, I meanyeah, it's the messiest thing we
do legally Navigable water andair reporting those are the two
most difficult things.
Yeah, yeah, yeah.
So, um, yeah, thank you,especially in March when we have
to put all the reporting in.
You can call me then and giveit to me then.
(25:52):
So, moving forward, and some ofthis is maybe just a definition
piece, but in our work we do alot of settlement.
It's not necessarily litigation, but we do a lot of settlement
and I do have clients askinglike is this going to impact
settlement at all, or is itsolely impacting like litigation
and the outfalls of that?
Andy Leman (26:12):
Yeah Well, so let's look at it in two buckets.
Right?
Let's talk about oldsettlements.
Right, your clients have donesettlements.
I've had clients that have donesettlements right.
I don't think this really hasany impact on those right.
When you settle something, yousettle it right, it's done.
If the law gets worse or betterright, it doesn't change what
(26:34):
your settlement was.
So I don't think we're going tosee much impact there.
But certainly if you had a newenforcement action, even if it
was kind of relating to the sameissue, but the issues come up
again maybe you get a differentsettlement or you get a
different result, because nowthere's an opportunity to try to
(26:55):
push back and say, no, yourinterpretation of the law isn't
correct.
And of course, there's lots ofongoing litigation out there
over regulations right, all thetime.
I'm sure all the lawyers workingon those cases have been
scrambling right to write theirnew legal briefs using a loper
bright way of looking at things.
You know it's a good thing totalk to your lawyer about.
(27:17):
But the one thing I would sayabout forward looking is to the
extent that agencies are goingto feel like they're more
limited in what they can dothrough their formal
interpretations, that they mayfeel like informal right, like
if they can get somebody toagree to a settlement, it
doesn't really matter that maybethat person could have gone and
(27:38):
fought and gotten a differentresult from a different
interpretation of the law.
So I do think there's alwayslots of incentive to settle
cases on both sides, but maybethere's even a little bit more
on the agency side, maybethere's a little less on the
private sector side.
If you're willing to spend themoney right, if you want to buy
your lawyer a boat and help themsend their kid to college, then
(28:00):
I say God bless you.
Shannon Oelkers (28:03):
Or maybe industry groups have more
opportunity to bring these up asa specific you know like,
because there's lobbying groupsand there's different industry
groups that can target some ofthese really unfair or what they
perceive to be unfairinterpretations to get their
voice heard.
I do like that piece of thisnew legislation.
Okay, so we've talked a lotabout federal impacts, because
(28:25):
this is a federal law.
How's that going to look at thestate level, how does states
interpret this?
And maybe bring it back toAlaska, since a lot of our
clients are Alaskan.
Andy Leman (28:34):
Yeah, and of course I'm only licensed in Alaska, so
everything I'm talking about isabout Alaska.
Shannon Oelkers (28:39):
You're not giving legal advice, so it's
okay.
Yeah, let's focus on Alaskathen.
So what does it look like forAlaska?
Andy Leman (28:46):
So I mean, Chevron is a federal court decision
about how federal courts shouldinterpret federal law and I
don't think it changes statecourt standards for how to
interpret state law.
It might persuade some statecourts to do something
differently, but it'll bebecause they're persuaded, not
because they have to.
In Alaska, for example, ourstate court never adopted the
(29:10):
Chevron standard and I don'tanticipate that they're going to
adopt Loper Bright either.
They've kind of charted theirown course.
In Alaska the standard is thatthe courts will defer to
agencies' reasonableinterpretations when they
implicate the agency's expertiseor determine policy within the
scope of the agency's function.
(29:31):
So it's kind of saying yeah,there's some laws where we'll
defer to agencies where, frankly, we think they are in a
position to do a better job thanthe courts, but otherwise the
court's going to exercise itsindependent judgment.
In other words, it's going topick the best interpretation.
It's not really a Chevronstandard or a Loper-Bright
(29:52):
standard, right it's.
I don't know if you call it ahybrid or somewhere in between,
but it is a well-establishedstandard in Alaska and I
wouldn't expect that to changewhen you're talking about
interpreting Alaska law, right?
Shannon Oelkers (30:07):
Yeah, okay, so Alaska likes to be independent.
Do it its own way.
That's right On brand for usAll right.
So we have talked a lot aboutLoper Bright, but when I
listened to you at the APA, youmentioned that it's been a
really interesting year for theSupreme Court.
Are there any other cases ordecisions that maybe our
listeners should know about thatcould potentially impact
environmental litigation?
Andy Leman (30:29):
Yeah, I mean to me the Supreme Court is always
interesting, but particularlyinteresting to kind of regulated
industries.
This year, yeah, in addition toLoper Bright, we had a decision
in a case called Ohio versusEPA.
It was a challenge to the EPA'sapproval of a good neighbor
plan, again under the Clean AirAct, the EPA.
(30:52):
The important thing to know, Ithink, is just the EPA got a lot
of public comments fromindustry as it was looking at
this issue.
That pointed out some prettyserious problems and issues with
the plan and when EPA issuedits final rule, it never really
even tried to address thosecomments.
You know it basically ignoredthem and the Supreme Court said
(31:14):
look, you don't necessarily haveto agree with those comments or
do what they're asking you todo, but you can't just ignore
them and pretend nobody saidanything.
You've got to provide some kindof an explanation and I do
think that's helpful and itshould cut both ways Right.
Both ways right.
It's not a again, it was apro-industry result here, but
(31:37):
you could just as easily see ifyou had a less pro-environment
right president in office, youcould see that getting used the
other direction as well.
But really the other kind oflandmark case that I think goes
hand in hand with Loper Bright,was one that didn't have
anything to do withenvironmental regulation.
It was an SEC, a Security andExchange Commission case SEC
(32:03):
versus JARCSEE and the SEC hadimposed fines on someone for
violating securities laws,something they've been doing for
quite some time.
There was no court trial orjury trial right.
It didn't go to civil court.
It was all handled internallythrough the SEC's administrative
process.
I'm sure for folks in yourworld would remind people of
(32:26):
what the process looks like whenthe environmental regulators
come knocking and say you didn'tfile your reports right or you
had a spill and we're going tofine you right.
The Supreme Court said hey, youcan't impose civil penalties on
someone through anadministrative process.
(32:48):
We have a constitution and theconstitution promises the right
to a jury trial, and even in acivil case, I haven't heard an
argument yet for why thatreasoning in the SEC case
wouldn't also apply to civilpenalties issued by the EPA or
the Corps of Engineers or anyother federal agency.
Shannon Oelkers (33:06):
So does that apply to individuals or does it
apply to corporations acting asthe individual?
Andy Leman (33:12):
Yeah, I mean I would think it would apply regardless
.
Right Interesting, there was anindividual though in that case
and the whole issue of when is acorporation a person and when
are they not is an interestingone too, Right up there with
navigable water we have to waitand see right, but I would kind
of expect that it wouldn'tmatter, wouldn't matter.
(33:37):
So I think, if you're going togo, if you really want to fight
and you don't want to settle, itdoes seem like it's opening the
doors to saying, hey, we're notjust going to have people in
the agency deciding whether wedid wrong and how much right
that they're going to have to goget a jury to sign off on that.
Now, you know, is that going togive regulated businesses more
leverage to get favorablesettlements?
(33:57):
Will it encourage agencies tolevy bigger fines or threaten?
bigger fines to try to get youto settle and not go to civil
court.
We just don't know.
One thing I do know is thatcivil trials are one of the most
expensive things you can pay alawyer to do for you, right, are
one of the most expensivethings you can pay a lawyer to
(34:18):
do for you, right?
There's a reason why so manycivil cases settle or get
resolved through arbitration ormediation.
So I'd be a little surprised ifwe saw a lot of these penalty
cases going to civil trials.
But it is definitely going tochange the process for finding
facts when people aren't willingto settle, related to
violations of environmentalstandards and really any other
(34:40):
administrative penalty process.
So probably more court cases,fewer administrative hearings.
That is a case where I thinkI'm not so sure.
Loper Bright increases thecourt's workload that much.
I think they were already doingthat work.
It just kind of changes what itlooks like, but, darcy, seems
like it might actually mean morecourt cases, right?
Shannon Oelkers (35:03):
Well, and I think it's important for our
clients to keep it in mind ifthey go through an
administrative settlementprocess, because that may be
driving up some of those civilpenalties.
And when you're negotiating,it's helpful to understand what
levers are being pulled on theback end.
Andy Leman (35:17):
For sure, yeah, sure .
So my advice is talk to yourlawyer about it.
Shannon Oelkers (35:24):
Amen, all right .
So my last question is just forfun, andy do you have any
interesting or fun stories youwant to share with our viewers
about living and working inAlaska, because we're all
Alaskan.
We all have that story.
Andy Leman (35:36):
Yeah, yeah, I mean, once upon a time we had a well,
very well-loved client of thefirm.
Call our lawyers the graypeople, because she said we
weren't any fun.
And I mean I'm not going to sayI wasn't a little offended by
(35:57):
that, but it was also like well,does the truth hurt, right?
Shannon Oelkers (36:00):
Were you wearing a gray suit when she
said this?
Andy Leman (36:03):
I yeah, and you know you've.
How many times have you been toa party and heard someone say,
hey, you know it would liventhis up.
A utility lawyer, right, lawyerright.
Shannon Oelkers (36:15):
Well, your presentation was one of the best
ones I've ever seen from alawyer.
You were very entertaining, soI think you're the exception to
the rule, andy.
Andy Leman (36:29):
That's very kind.
Now a lot of Alaska interestingstories end up being fatal or
near fatal, so I'm actually kindof grateful that I don't really
have any.
The closest I get to that is Idid have a big meeting with a
board that I had to fly out toonce.
It was a zero dark 30 departurewhere I wasn't completely awake
, probably.
When I got up, family was allasleep, pitch black in the house
, got dressed as quietly as Icould, tried not to turn any of
(36:53):
the lights on, got out to my car, drove over to the airport I
could tried not to turn any ofthe lights on got out to my car,
drove over to the airport,started walking towards the
terminal and as I really startedwalking, it just felt like
something was off, like somehowone of my legs had gotten longer
than the other overnight, and Ilooked down under those bright
lights in the garage and saw oneblack dress shoe and one brown
(37:16):
dress shoe.
Shannon Oelkers (37:18):
It wasn't just your socks that you could kind
of skate by with no no, no, theywere in the dark.
Andy Leman (37:25):
Granted, they may have looked like the same color,
but yeah so, and of course Iwas cutting it last minute, did
not have time to go back and doa swap out, so I just went ahead
and limped to the plane and Itexted the manager I was working
with at the time and, luckily,he had a son who had a pair of
(37:47):
what he referred to as weddingslash funeral shoes that were
his feet were only slightlybigger than mine.
So, I had all these contingencyplans for how I would be able to
sit at the table and wouldnever have to get up or walk
around the room so that,hopefully, no one would see my
feet.
I did not have to execute anyof those plans.
(38:09):
Yeah, I worked with thatmanager for many years after and
he, he still likes to remind meevery once in a while to check
my shoes before I yeah, everytime, I am sure.
Shannon Oelkers (38:23):
Well, andy, it has been a genuine pleasure to
have you on the podcast.
Thank you for having put somuch thought into these answers.
I think this is going to bereally helpful to all of our
listeners in sort of applyingall the.
You know there's a lot ofanalysis and articles and memes
and Twitter and everything, butI really like our conversation.
(38:43):
I feel like is a good guidancefor, like, how to manage your
operation facility business andnavigate the next couple of
years and sort of understandwhat to look out for and maybe
what to pay attention to andwhat to pay less attention to.
So I appreciate that you gaveus those tools and thank you so
much for coming on.
Andy Leman (39:00):
Well, thanks for having me.
Shannon Oelkers (39:01):
All right, thank you so much, andy.
We will go ahead and includesome links to those court cases
that Andy mentioned in our shownotes.
And again, andy, just a genuinepleasure to have you.
Thanks, hi there.
This is Shannon Oelkers and, asthe owner of Integrity
Environmental, I wanted to takea minute here at the end of the
podcast to make sure that youknew the following this podcast
(39:26):
is for informational purposesonly and should not be
considered legal or regulatoryadvice.
We are not responsible for anylosses, damages or liabilities
that may arise from the use ofthis podcast.
This podcast is not intended toreplace professional regulatory
or legal advice, and the viewsexpressed in this podcast may
not be those of the host thatwould be me or Integrity
Environmental.
Thank you very much forlistening and if you do need
(39:47):
professional regulatory advice,we'd be happy to help you as
part of our consulting services.
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