States to Take Lead in Regulatory Environment Post-Chevron

Ashley Taylor, co-leader of Troutman Pepper’s State Attorneys General Practice Group, vice chair of the firm, and a partner in its Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, was quoted in the August 21, 2024 Power Progress article, “States to Take Lead in Regulatory Environment Post-Chevron.”

According to Ashley Taylor, co-leader of Troutman Pepper’s state attorneys general practice and vice chair of the firm, every state department comes under the authority of the state attorney general. “Nothing happens in the state without the involvement of the state attorney general. The state attorney general is the hub and everything else is a spoke.” He added, “They have the ability, from a policy perspective, to influence every substantive aspect of state government.”

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“There was an amicus brief filed by the Georgia governor in that case (Loper Bright),” Taylor said. “It was the only one filed by a governor, and his point was simple. His point was we should be encouraging every state to develop different standards.”

Taylor explained that despite the partisanship often seen in such cases, the Chevron ruling was about a difference in philosophy about where expertise in policymaking should reside.

“One side says the expert should be in the bureaucracy with deference,” he said. “Another approach says no, the experts may exist, but those experts should probably be part of a congressional staff, and the bill should probably lay out in excruciating detail what the experts believe.”

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Taylor added that while federal cases against regulatory agencies such as EPA will be the ones garnering much of the press, “you’re going to have a thousand battles that are going to be state administrative battles.” These regulatory structures will be created “through enforcement actions and settlements,” he said.

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“For a company — their compliance program — if it’s a risk-based compliance program, where is our greatest risk? It’s being reoriented to the states,” he said. “You used to have the federal, and then oh, yeah, we’ll figure out what the states are doing. Now, they’re being reversed.”

For business-to-business companies, Taylor said that complying with the regulations of the state that is most stringent will likely keep you in good stead with the remaining states.

Taylor said it’s important to see how all the rulings related to the regulatory environment play out.

“Not only at the federal level, but across the states and across each regulatory agency and across each discipline,” he said. “There are going to be multiple ripple effects that we’re going to watch. I think five or 10 years from now, people are going to look back and in a state, you’re going to have an entirely different body of regulatory law.”