Because of our focus on solving environmental problems for business, much of our regulatory work historically has been centered on dealing with agencies such as U.S. EPA, the NYSDEC, the NJDEP and other such agencies. However, beginning with the publication of our ground breaking article “A Fundamental Change in U.S. Law is Underway” first published in July 2019 (updated March 2020), and our relationship with IR Global, we are being consulted on an increasing range of regulatory issues. That legal change, summarized below, is applicable to all federal executive branch agencies. Most recently, for example, we have been consulted by an E.U. medical company (and its E.U. bankers) considering establishing medical imaging centers in the U.S. staffed by U.S. licensed doctors. We have also been consulted by a real estate investment company seeking to establish a child care facility in New York City.
In the article referred to above (for full text click here) we discuss the reduced deference federal courts will be giving to an executive branch agency’s interpretations of its own rules (so called Auer deference) and the reduced deference federal courts likely, in our view, will be giving to an agency’s interpretation of the laws it administers (so called Chevron deference). In it we also discuss the dissenting opinion of Justice Gorsuch, joined by the Chief Justice and Justice Thomas in Gundy v United States, that seeks to reopen a discussion of the Constitutional restrictions (or lack thereof) on Congress’ ability to delegate its Article I law-making authority to Executive Branch agencies (the so called nondelegation doctrine).
These important developments, which are applicable to all executive branch agencies, appear not yet to be widely understood and differentiate our firm from others in our approach to dealing with executive branch federal regulatory agencies. Additionally, we are open to considering creative approaches when dealing with state regulatory agencies where similar issues may be raised to help companies and individuals burdened by a state agency’s overly broad interpretation of its own powers and regulations and of the statues that it administers.