Reiter Details Possible Legal Challenges After Recent SCOTUS Decision for Bloomberg Law  

07.12.2022

Stinson LLP Partner Harvey Reiter's recent Bloomberg Law article describes the "potential nuclear bomb" fallout from the Supreme Court's (SCOTUS) decision in West Virginia v. EPA, which expands the application of the "major questions doctrine."

In "Expanding 'Major Questions Doctrine' Risks Regulatory Stability," Reiter explains how the SCOTUS majority opinion's test for applying the doctrine offers little guidance for regulatory agencies moving forward. But, he stated, it does provide ample ammunition for those looking to challenge virtually any federal agency rulemaking of consequence, adversely affecting regulatory stability in the process.

"One can hope that the court will provide greater clarity about the scope of the doctrine," Reiter said. "But in the meantime, regulatory agencies are likely to become mired in legal challenges by parties claiming rules they do not like involve 'major questions.'"

Reiter highlights the significance of federal regulatory agencies and the breadth of agency rules that could be challenged as posing "major questions," "From rules on food safety, to workplace conditions, to rules governing union elections, to false advertising, to net neutrality, to opening gas pipelines and electric transmission lines…the list is almost endless." He explains why Congress intentionally constructs statutes broadly to enable agencies to address "predictably unpredictable problems" with the flexibility necessary to handle complex situations.

Reiter was also recently featured in two E&E News publications, Energywire and Climatewire, where he provided comments on whether SCOTUS' invocation of the "major questions doctrine" in its EPA decision has implications for the Federal Energy Regulatory Commission (FERC). Reiter said the SCOTUS decision "is so broad you could apply it to any major rulemaking" and "it opens up virtually any significant regulation to challenge."

Reiter focuses his practice on competition in the electric and natural gas industries, representing clients in proceedings before FERC the Federal Communications Commission and the federal courts. He brings a wealth of knowledge to his legal counsel in litigation, appellate, transactional and other legal services, and offers regulatory and trial insights with a strong focus on antitrust and competition issues. In addition to his work at the firm, Reiter is an adjunct professor of law at George Washington University Law School and editor-in-chief of the Energy Law Journal.

Read the full article.