Charting Communications Strategies in a Post-Chevron Doctrine Era
This summer, the U.S. Supreme Court issued a critical ruling in Loper Bright Enterprises v. Raimondo (“Loper Bright”) that fundamentally changes the regulatory landscape for American businesses. Loper Bright overturned the “Chevron doctrine”—established in a 1984 Supreme Court decision—which had required courts to give deference to federal agency interpretations of ambiguous laws.
This fall, every large business in highly regulated industries should chart a plan to respond to this landmark decision in the courts. Under Loper Bright, businesses and industries can challenge a host of onerous regulations—and potentially cut regulatory costs substantially.
Conditioning the Legal Environment for Litigation
As businesses develop their post-Chevron doctrine strategy, they should strongly consider bringing their public affairs and communications consultants to the table early on to develop a robust litigation communications plan. This plan should detail tactics and messages for communicating before a suit is filed, once a suit is filed but before trial, during trial, and post-trial. A seasoned litigation communications team can help at every stage.
Nearly all regulatory cases will be decided by bench trials, with the judge alone acting to weigh evidence, ask questions, and issue a ruling. In jury trials that include regulatory issues, judges may also be in a position to instruct jurors not to defer to the interpretations of law offered by federal agencies; that is, regulators should no longer be given the benefit of the doubt.
Companies planning on challenging regulations should consider how they can effectively deliver key messages within the local and targeted communications streams of judges, legal influencers, consumers, and policy stakeholders. In addition—and this is no different from litigation during the Chevron era—companies should carefully consider which relevant District Court has the potential to be the most open to their regulatory arguments.
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While it’s important to proactively deliver positive, compelling messages prior to and during litigation, it’s also important to identify and defend against negative coverage and detractors. In some cases, companies may also want to consider enhancing their brand before proceeding with litigation. Your litigation communications plan will likely want to consider a strategic combination of:
Will Congress Clarify Ambiguous Statutes?
Most commentary on Loper Bright has focused on what might happen in the courtroom. Attorneys are justifiably sharpening their knives. But there may also be pressure on Congress coming from interest groups to revise ambiguous statutes to prevent regulatory rollbacks.
Even as companies prepare to challenge regulations in court, they should remain vigilant about legislative challenges. Succeeding in court against unclear laws will be a hollow victory if new, stricter, unambiguous regulations emerge from Congress.
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Issue advocacy consultant specializing in grassroots/grasstops mobilization, polling, communications, and voter contact.
1 个月There's a lot to think about on this front. Are there limits on what companies can say or do publicly during the litigation itself? I can only imagine someone failing to consider this upfront, and then getting caught flat-footed when outside groups try to make noise.