‘Chevron’ Impact on Business

‘Chevron’ so named for the oil company that originally ran afoul of the EPA, will have a major impact on business/ administrative state regulations.

In our opinion, the two agencies that have committed the most infractions on the new Chevron doctrine, which says agencies can’t go beyond their enumerated powers, are the EPA and OHSA.

In our opinion, the EPA problems go back to the issuance of the Corporate Average Fuel Economy (CAFE) standards. The EPA has said that cars and light trucks must average X per miles per gallon, ignoring a particular manufacturer’s mix of cars and light trucks (heavy trucks are exempt). When I was at Ford, I went through the EPA law and found that the law said nothing about CAFE, only that certain tailpipe and crankcase emissions were going to be regulated, which was within the scope of the law. Ford elected to not challenge the EPA, but had difficulty complying because it sells a lot of light duty trucks (i.e., F150s) which don’t get as good mileage as their cars. And this problem continues to this day. Ford has survived the increases in CAFE with sort of a wink/wink, nod/nod approach…they’re doing the best they can.

One of my companies also ran afoul of the EPA over water quality, but we settled it in our best guerilla war fashion, by exposing what the EPA was doing to a prominent employer to a friendly local TV station, which didn’t like that a prominent Reno employer was being hassled. And then we moved most of the offending division to Mexico, which cost a few US jobs.

For small businesses, the OHSA (Occupational and Health Safety Act) has been a problem, because the OHSA has routinely overstepped its boundaries in regulating workplace safety conditions. Several of our Solutions Forum clients have collided with OHSA over the years, and lost cases.

Unfortunately, Chevron does not allow for recoupment of past damages suffered from adverse OHSA or EPA rulings.

There are probably thousands of past OHSA and EPA transgressions that could be litigated, and I’m sure that they tort lawyers will put a word in, especially under a Trump administration.

So, the business world won one for a change.