The Nickel Report

The Chevron doctrine – the bedrock principle of administrative law under which courts afforded deference to administrative agency interpretations in the face of statutory ambiguity – is no more.  On June 28, 2024, the U.S. Supreme Court issued a long-anticipated decision that addresses the authority of regulatory agencies to dictate policy and the extent to which courts will exercise their own judgment as to the meaning of a statute and how that may bound agency decisions. 

In this article, the authors discuss the National Environmental Policy Act (“NEPA”) and environmental justice review requirements for federal agency actions, recent challenges and court decisions showcasing the increased scrutiny and focus on environmental justice reviews for project permitting, recent NEPA regulation and other environmental justice developments, and what the recent cases and other recent regulatory and political developments may mean for project permitting and environmental justice.

The US Fish & Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) issued three significant, highly anticipated, proposals to revise the Endangered Species Act (ESA) regulations on July 19. The proposals address critical habitat designation, ESA section 7 consultation, and protection of threatened species. Once published in the Federal Register, there will be a 60 day comment period for all three proposals. The proposals would make important changes in each area, and are likely to garner substantial attention in public comments.  Some key highlights follow.