Tank Talk - Alaska's Bulk Fuel Podcast

Navigating the Loper Bright Ruling: A Legal Perspective on Environmental Policy Featuring Andy Leman

• Integrity Environmental • Season 3 • Episode 1

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In this episode of Tank Talk, we explore the implications of the Supreme Court’s recent Loper Bright decision with shareholder Andy Leman of Kemppel, Huffman & Ellis, P.C. Andy provides a straightforward overview of how this ruling shifts regulatory authority, its potential impact on industries, and what it means for environmental compliance moving forward. From court interpretations to agency rulemaking, this conversation sheds light on the evolving legal landscape and its broader effects. As an added bonus, Andy shares a few memorable stories about working in Alaska. 

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Haley Hall:

Thank you for joining us. You're listening to Tank Talk with Integrity Environmental, where we speak with founder, principal consultant and bulk fuel storage expert Shannon Olters, about regulations, safety and useful tips for smooth sailing through the bulk fuel storage industry. Come learn the unique joys of working life in Alaska with industry experts, including our team, vendors we work with and companies we support. Good morning.

Shannon Oelkers:

Welcome to Tank Talk Season 2. This is Shannon, and I am here today with Andy Lehman. He is a shareholder with Kemple, huffman and Ellis and he is here today to help us navigate the Loper-Bright rule. I really wanted his legal perspective on environmental policy. I heard him speak at the APA conference and I literally walked right up to him afterwards and said please come on the podcast. Our clients need what you have.

Shannon Oelkers:

So, Andy, our firm frequently prepares technical responses for our clients, along with their legal teams. We handle the regulatory side, their legal team handles the legal, and this is all related to environmental compliance actions. And in the past 15 years that we've been doing this, the federal agencies have had a real wide latitude in interpreting what we call gray areas of regulation, and they seem to get bigger every year. But this year, with the passing of Loper Bright, a lot of our clients have been calling us with all these questions about what that means going forward. So I'm really excited and pleased to welcome you to the show to share some of your knowledge with that. So I would really like you to start off by introducing yourself and maybe giving us an overview of your background. How did you get into legal work?

Shannon Oelkers:

Andy, I'm curious.

Andy Leman:

Well, thanks for having me on the show, Shannon. After law school I actually ended up with two legal clerkships that were going to be up here in Alaska. Clerkship is when a lawyer works closely with a judge on cases that are coming before court, usually something you do right after law school. I had a year with the Alaska Supreme Court here in Anchorage and another year with Judge Kleinfeld on the Ninth Circuit Court of Appeals up in Fairbanks. I told my mother that I was only going to be in Alaska for two years and then I'd be leaving. And well, those two years ended in 1997 and mom's still waiting.

Shannon Oelkers:

Crying at Christmas.

Andy Leman:

Yeah Well, there've been a lot of trips home to visit right To try to make up for it. But no, I guess I am a utility lawyer. That's probably the best way to describe me. I never had any aspiration to be a utility lawyer but that's where I landed. After my clerkships ended I walked into Kemple Huffman Ellis in 1997 and never left. So my work is primarily with Alaska Electric and Telecom Utilities and most of those utilities are member-owned cooperatives Also work with the statewide Electric Power Association. That's where we met and I do a lot of work on labor and employment, general counsel, cooperative issues. Maybe of more interest to your audience is that I do work with a number of rural electric utilities on their bulk fuel purchasing. Bulk fuel purchase and delivery and storage, of course, is a big deal in Western Alaska and I have occasionally had to help out with tank farm construction projects and real estate disputes, legal disputes related to those tank farms. So yeah, that's the 30 second tour of my career.

Shannon Oelkers:

Thank you for that and related to that. We've got Loper Bright. We've got clients asking what does that mean for us? Could you sort of just summarize up the Loper Bright situation for maybe people who aren't as familiar with it?

Andy Leman:

Well, I guess my snarky answer is that no one, including probably the Supreme Court justices, really knows how Loper Bright is going to impact the judicial system and the regulatory environment. So thanks for having me, it's been great.

Andy Leman:

We'll have to do it again sometime.

Shannon Oelkers:

The end.

Andy Leman:

Yeah, no, I do think we can make some informed guesses about what Loper Bright is going to mean, but I do think it's also really a time will tell situation. It is a big, big change. Like a lot of other big changes, people don't always anticipate correctly what the collateral effects, what the fallout of those changes is going to look like.

Shannon Oelkers:

So at the root of Loper-Bright is a decision that's much older and that's the federal Chevron rule, and I think our listeners would benefit if you don't mind, andy, taking us through what the Chevron rule is, because we really have to understand that, I think, to understand why Loper-Bright's important and what it's changing that.

Andy Leman:

Sure, sure, well, so, of course, for non-lawyers out there, lawyers like to refer to legal cases by the name of one of the parties to the lawsuit, and Chevron everybody, I think, knows who Chevron is was one of the parties in that case. It was a case that made its way to the US Supreme Court in 1984. It was a case about the Clean Air Act, right, the federal law that was supposed to reduce air pollution, improve air quality. And the issue in that case, in Chevron, was how do you define a new or modified stationary source of air pollution? To me, the real key words were stationary source, right, what's a stationary source? So the EPA had issued regulations back in 1981 that allowed states to use a definition of stationary source that was basically broad enough to cover a whole power plant, right, or a whole they're not all power plants, right but a whole plant as opposed to like individual pollution sources within a plant. And that 1981 EPA definition was actually pretty favorable to industry, because it's a heck of a lot easier to meet pollution goals if you can look at the whole plant as a source instead of like smokestack by smokestack, right, like you can do some offsetting, you can do some. Hey, I'm going to shut this down but build something new over here. Right? And by the way, I think this is interesting that 1981 EPA definition was not the first time EPA had tried to define what a state resource was. No, there was a 1977 definition when their right would have been a different president in office, appointing different EPA officials. That was a lot stricter. So this 1981 decision was pretty industry friendly and the industry, I think, was happy, right, happier certainly than they were with the 1977 definition.

Andy Leman:

The Natural Resources Defense Council didn't like that 1981 redefinition. They wanted something more restrictive. The industry players, including Chevron, stepped in to defend EPA's interpretation. So you know, in our court system at the federal level there's kind of three levels, right, there's the trial courts, then there's the modified stationary source in this law that Congress passed and it really wasn't addressed in the legislative history. Legislative history is like what lawyers would you know the debates, the reports in Congress and congressional committees. It wasn't really addressed in that legislative history. But the purpose of the law was to improve air quality. So we, the court, the judges, think EPA got it wrong and should not have done this redefinition right. Of course industry was not happy with that and got the case in front of the Supreme Court.

Andy Leman:

When Chevron got to the US Supreme Court, the court agreed that there really wasn't anything in the law that Congress passed or in the legislative history to help define what a stationary source was. In fact, the court said if you really looked at the history, you see that Congress was trying to balance the interests of clean air economic growth. Right, and there were things you could have cherry picked either way. Right, but the overall history didn't point in one direction.

Andy Leman:

The court said in a situation like that, courts ought to defer to the interpretation from the agency that's charged with enforcing the law right, in Chevron's case the EPA. And they said even in a case like this one, where the agency has changed its mind right about how to interpret the law, courts ought to defer to it. And, by the way, industry, environmental groups, whoever's unhappy with what's happening, if you don't like it, go ask Congress to change it, don't ask judges to change it. So the rule that we kind of pull out a chevron at the end is that when an agency interprets the law, of course the courts are going to tell agencies to follow what Congress said. But the issue in Chevron was Congress didn't really say anything, right? If the law is silent or it's ambiguous on an issue, then the courts would ask whether the agency's interpretation is reasonable and by reasonable.

Andy Leman:

the agency's interpretation is reasonable and by reasonable we mean is it within the zone right of possible readings of the law?

Shannon Oelkers:

Reasonable is a great word Andy.

Andy Leman:

Yeah, the entire American legal system hinges on the word reasonable, right you know if it's reasonable, even if it's not the one the court would have picked if somebody had said hey court, what do you think this means? As long as the agency's interpretation is reasonable, the courts aren't going to mess with it when we're talking about an issue where there was silence or ambiguity from Congress and so Chevron really did put agencies in the lead role when it came to interpreting laws that Congress passed, that were ambiguous or had gaps in them.

Shannon Oelkers:

So that deferral to these lead agencies is, until now, what we have operated under. So if the lead agency is the EPA, they decide to do something a certain way. Going to the court system probably won't get you very far.

Andy Leman:

I mean it is interesting I think if you read Loper Bright, the court kind of says yeah we made this general rule and we spent the next 40 years making exceptions to it.

Shannon Oelkers:

Fair enough.

Andy Leman:

That were very hard to keep track of and predict and that does kind of lead to that's part of what leads to the Loper Bright decision.

Shannon Oelkers:

Okay, so let's talk specifically about Loper Bright. This happened in June of 2024. There was a great meme war after it passed, which I think is primarily why we got so much client chatter about it. But could you just give us a brief overview of that ruling and then just sort of tie it back to that Chevron?

Andy Leman:

Yeah, so Loper Bright was a very different case from Chevron; It was a bunch of Atlantic herring fishing businesses challenging a National Marine Fisheries Service decision. Interpreting the Magnuson-Stevens Act right named after Ted Stevens, our late senator in Alaska. So it does have a little Alaska connection right.

Andy Leman:

But there was an issue about fishing vessels carrying observers right to make sure that the fishing laws are being followed. The law specifically said that the government could charge fishing businesses for observers in the North Pacific, which is, in fairness, where an awful lot of the fishing activity happens right in the United States. But it didn't say anything about the Atlantic. And so this group of Atlantic herring fishing businesses were concerned when the National Marine Fisheries Service decided to pass a rule that said yeah, you Atlantic herring fishermen, you've got to pay the costs of having these observers on fishing businesses in the Atlantic. The fishing businesses said well, wait a minute, that's not in the law. The North Pacific is, but it doesn't say anything about the Atlantic. And the agency said well, you know, under Chevron we think we've got the discretion to kind of fill this gap, to interpret the law, to do the same thing in the Atlantic that we're doing in the Pacific, right, and so that was the challenge that went up to the Supreme Court in Loper Bright. The Supreme Court did basically say that Chevron was a mistake and said going forward, we want courts to no longer give deference to these reasonable interpretations of the law. We want the courts to give the laws that Congress passes the best interpretation they can. And it's not that you shouldn't listen to the agency or pay attention to what they're saying, but there's no longer this kind of obligation to say well, if you think it's best EPA, or you think it's best name another alphabet agency, right. That we no longer have to say I guess that's what we're going to do. So that is a fundamental change from Chevron.

Andy Leman:

The court was careful to say that the court should still consider agency expertise practice and consistency, that the court should still consider agency policy decisions when Congress has expressly given policymaking authority to an agency. So, in other words, loper Bright really isn't about a case where Congress says, hey, we want to limit this kind of pollution but we're not sure exactly what technology to mandate. So EPA, go figure out what the technology is and require that, right. I think in a scenario like that that's not a Loper-Bright case really, right? A Loper-Bright case is well, what's a stationary source? Congress never told us right? Or a situation where Congress addressed what you do in the Pacific but didn't address what you do in the Atlantic. Those are the Loper-Bright cases.

Shannon Oelkers:

Back to those gray areas where the actual legal language has some ambiguity to it. Yes, and that's clear.

Andy Leman:

Okay, and the court, really, I mean the court went all the way back to Mayberry versus Madison. Our job as courts is to tell people what the law that Congress passed means, and we'll do our best job at that. And you know, if Congress doesn't like it, congress should pass a different law, and we'll do our best job at that. And if Congress doesn't like it, congress should pass a different law, and then we'll do that.

Shannon Oelkers:

Okay, all right. So that's a lot of legal system overview and change. Just bringing it back down to our client level, which includes power generation utilities but also fish processors and bulk fuel transporters. What changes should we expect to see with Loper Bright in sort of the regulatory and enforcement realm where legal often gets involved? What changes are ahead for us, andy?

Andy Leman:

Well, I mean, I could imagine someone saying you know what Loper Bright means? It means the lawyers are more in charge than they were before. I was surprised.

Andy Leman:

The lawyers said the lawyers ought to do more filling these gaps and interpreting these laws, and I think there's a degree of truth to that. But the way I look at it is that, look, the lawyers were making these decisions after Chevron and before Loper Bright. It's just a question of who they were working for, right. Were they lawyers who had lifetime appointments to the federal courts who got approved with the advice and consent of the Senate? Or is it lawyers who got hired by a political appointee, right of whoever happens to be in the White House? I think there's an awful lot of lawyering involved, no matter who, and to me reasonable people can disagree To me.

Andy Leman:

I do have a little more confidence in a judge figuring out what a law means than the situation we've had right, where we've basically had lawyers working for political appointees figuring it out. I do think it's important to remember that anytime a future court does overturn an agency interpretation under Loper Bright that maybe would have been okay under Chevron, it's always going to be a decision about how the court reads the law that Congress passed, and if Congress doesn't like that reading, Congress can change the law and effectively overrule the court's interpretation. Congress still has the ultimate say here, even under Loper Bright.

Shannon Oelkers:

So while the workload to get it to the Supreme Court or Congress is pretty high.

Andy Leman:

It is high, but you know what? But it was high under Chevron too. I really wonder if it will be more fights in the courts or if it's just going to change some of the outcomes and how some of the cases are argued, because it's not like we weren't getting. It's just a much less steep hill to climb if you disagree with the agency. So I do think it's going to have an impact, but it may not be all the impacts that people are concerned about.

Shannon Oelkers:

So that's sort of the overall national view. Let's neck it down a little bit and look at Alaska. What does it look like for Alaskan industries, because we're involved in a lot of these cases. What does it look like for Alaskan industries, because we're involved in a lot of these cases? Alaska is sort of this great boiling pot of cases that do somehow make their way all the way up. So what is your expectation for Alaska? What does that look like?

Andy Leman:

Well, let's put a pin in a little bit of that, because I do think we need to talk about the fact that Loper Bright really isn't, I think, going to have an impact on Alaska state regulation.

Andy Leman:

But before we get to that, I guess what I would say for Alaska Industries but I think would be true other places in the country as well is certainly my hope and expectation is that over time, loper Bright is going to lead to less what I've been calling whipsawing, right? Well, less of exactly what we had like in that Chevron case, right Like hey, one president has an EPA that says stationary sources are going to be defined really restrictively. New president comes in, new EPA says no, no, we're going to have it be really broad. I would rather just have a rule and be able to plan for it and have stability than have it be really good and really bad and kind of going back and forth every four or eight years, depending on who's in the White House. My very simplistic analogy is if you like driving on the right side of the road, you would still rather have the rule be drive on the left side of the road than have it be. I wonder what the rule is today.

Shannon Oelkers:

Well, all of our clients, Andy, yours included all of them have to make plans 10 to 20 years into the future about every capital improvement project, and so the more stable these decisions are, the easier it is to spend those millions of dollars, knowing that they will likely still be compliant into the future.

Andy Leman:

Yeah, yeah, certainty has real value. And again, I'm not going to say I've got a crystal ball and I can promise that it's all going to work out the way people think it will. But that is my hope and expectation that it is going to lead to more certainty, because it is going to be harder, I think, for agencies to do 180s right on what the laws mean that Congress passes.

Shannon Oelkers:

So presidential influence especially when we're recording this in October of 2024, presidential influence is a big deal. And then you mentioned that whiplash influence is a big deal, and then you mentioned that whiplash. So, with Loper Bright, talk a little more about how that's going to tone that down, because elections matter, obviously, but I know a lot of like at the last election. There was a lot of breath holding and a lot of capital improvement projects just did not go until the election was done, right. So walk me through presidential influence in this legal realm.

Andy Leman:

I mean it's still going to matter a lot. I mean, even the judges that we're talking about, right, like Supreme Court justices, get nominated by the president, approved by the Senate. But it's not as dramatic an effect as a whole new set of agency heads and secretaries of departments taking over whenever a new president comes in. I mean, and elections still matter, even if you're just kind of looking narrowly at Loper Bright, because there are still going to be situations where courts are going to defer to agencies and they're certainly going to listen to agencies. But if they think an agency is wrong, they're going to be less hesitant to say so. And I guess the other way that I think it's going to have an influence is, even under Loper Bright, even if you are sure the agency is wrong, that is going to be a long and expensive fight to prove that point right and sometimes, frankly, it might be so expensive it's not worth fighting right. So who gets the initial say at well, it might be so expensive it's not worth fighting Right. So who gets the initial say Well, this is what we think it means Right and you're welcome to go challenge it, but it doesn't mean your challenge is going to be successful or economically worth it. So yeah, I think it's still going to be a big deal.

Andy Leman:

I mean, you kind of talked about some of the meme wars around this decision that came out and I do think there's some pretty shallow analysis out there. In the media Everything gets painted as red versus blue or pro-industry or pro-environment, and I like to remind people hey, the Chevron case that just got overturned led to a great result for industry, right? And Chevron has been used successfully to support and attack agency interpretations that were pro-industry or pro-green. It's very much been an equal opportunity doctrine, and I think Loper Bright is too. It's going to be used to attack agency interpretations that are pro-industry. It's going to be used to attack interpretations that are anti-industry. Right, it is a tool that's available for everyone, it's not a one-sided tool.

Shannon Oelkers:

Speaking of that tool, andy, this is something and I have no idea what the answer is, but I definitely have had clients ask me is this going to affect things in the past? Like is this you know, if it was decided under the Chevron rule, could we go back and reinterpret it under Loper Bright? I don't know the answer. What are your thoughts?

Andy Leman:

Well, before I answer that, in typical lawyerly fashion, I'm going to say something a little weaselly here that I do want to make clear Probably should have done at the beginning, right that I'm not giving legal advice or recommendations today. If it were legal advice, I'd be sending your listeners a bill. But I will say that, yeah, I do think that when it comes to challenging long-established interpretations, there may be some more room to do that. There was another Supreme Court case that was decided in 2024. That said, under the Administrative Procedure Act, which is kind of the umbrella law for administrative actions in the federal government, there's a six-year limit on bringing a lawsuit to challenge an interpretation, right. And the court said, well, you don't measure that six years from when the regulation came out. You measure it from when the person who's challenging it got hurt by it, right. So that might be a long, long time after that regulation came in. So that could be a really long time. But if we're talking about regulations right that came out and were tested in the courts under Chevron and the courts said, hey, this is reasonable, we're going to affirm it.

Andy Leman:

The court was pretty careful in Loper Bright to say we're not going to have a field day and go back and relitigate all of those, that there is this doctrine in the courts that the court should be reluctant to go back and overturn past decisions.

Andy Leman:

And the court, I think, was trying to telegraph to the lower courts and to all of us that it would have to be a pretty special circumstance for a court to go back and say, oh yeah, that was okay under Chevron but it's not okay under Loper Bright. I think they were looking at it as more of a forward-looking doctrine. At the same time, to me I do wonder if Loper Bright's going to be as easy to kind of keep in the corral as the court is hoping. Because it's just why wouldn't you right, if you think there's a better interpretation, kind of take your shot and try to make that argument that, hey, maybe this is one of those special cases or that past case was just so wrong, right, we just don't know. But the court certainly put down a marker that they do not expect to have a wholesale revisiting of 40 years worth of court decisions, either affirming or not affirming what interpretations were reasonable. But on a forward-looking basis it is going to be less deferential to the agencies.

Shannon Oelkers:

All I can think of is the definition of navigable water. Andy, I feel like that's going to be one that, if I had to pick one and I am not a lawyer, I just do regulatory work but that one is probably the most contested in what we do and has been through the ringer, and I can see someone using this tool that direction and has gone back and forth multiple times and a lot of other issues has had Supreme Court attention and interpretation Right, I mean yeah, it's the messiest thing we do legally Navigable water and air reporting those are the two most difficult things.

Shannon Oelkers:

Yeah, yeah, yeah. So, um, yeah, thank you, especially in March when we have to put all the reporting in. You can call me then and give it to me then. So, moving forward, and some of this is maybe just a definition piece, but in our work we do a lot of settlement. It's not necessarily litigation, but we do a lot of settlement and I do have clients asking like is this going to impact settlement at all, or is it solely impacting like litigation and the outfalls of that?

Andy Leman:

Yeah Well, so let's look at it in two buckets. Right? Let's talk about old settlements. Right, your clients have done settlements. I've had clients that have done settlements right.

Andy Leman:

I don't think this really has any impact on those right. When you settle something, you settle it right, it's done. If the law gets worse or better right, it doesn't change what your settlement was. So I don't think we're going to see much impact there. But certainly if you had a new enforcement action, even if it was kind of relating to the same issue, but the issues come up again maybe you get a different settlement or you get a different result, because now there's an opportunity to try to push back and say, no, your interpretation of the law isn't correct.

Andy Leman:

And of course, there's lots of ongoing litigation out there over regulations right, all the time.

Andy Leman:

I'm sure all the lawyers working on those cases have been scrambling right to write their new legal briefs using a loper bright way of looking at things. You know it's a good thing to talk to your lawyer about. But the one thing I would say about forward looking is to the extent that agencies are going to feel like they're more limited in what they can do through their formal interpretations, that they may feel like informal right, like if they can get somebody to agree to a settlement, it doesn't really matter that maybe that person could have gone and fought and gotten a different result from a different interpretation of the law. So I do think there's always lots of incentive to settle cases on both sides, but maybe there's even a little bit more on the agency side, maybe there's a little less on the private sector side. If you're willing to spend the money right, if you want to buy your lawyer a boat and help them send their kid to college, then I say God bless you.

Shannon Oelkers:

Or maybe industry groups have more opportunity to bring these up as a specific you know like, because there's lobbying groups and there's different industry groups that can target some of these really unfair or what they perceive to be unfair interpretations to get their voice heard. I do like that piece of this new legislation. Okay, so we've talked a lot about federal impacts, because this is a federal law. How's that going to look at the state level, how does states interpret this? And maybe bring it back to Alaska, since a lot of our clients are Alaskan.

Andy Leman:

Yeah, and of course I'm only licensed in Alaska, so everything I'm talking about is about Alaska.

Shannon Oelkers:

You're not giving legal advice, so it's okay. Yeah, let's focus on Alaska then.

Shannon Oelkers:

So what does it look like for Alaska?

Andy Leman:

So I mean, Chevron is a federal court decision about how federal courts should interpret federal law and I don't think it changes state court standards for how to interpret state law.

Andy Leman:

It might persuade some state courts to do something differently, but it'll be because they're persuaded, not because they have to. In Alaska, for example, our state court never adopted the Chevron standard and I don't anticipate that they're going to adopt Loper Bright either. They've kind of charted their own course. In Alaska the standard is that the courts will defer to agencies' reasonable interpretations when they implicate the agency's expertise or determine policy within the scope of the agency's function. So it's kind of saying yeah, there's some laws where we'll defer to agencies where, frankly, we think they are in a position to do a better job than the courts, but otherwise the court's going to exercise its independent judgment. In other words, it's going to pick the best interpretation. It's not really a Chevron standard or a Loper-Bright standard, right it's. I don't know if you call it a hybrid or somewhere in between, but it is a well-established standard in Alaska and I wouldn't expect that to change when you're talking about interpreting Alaska law, right?

Shannon Oelkers:

Yeah, okay, so Alaska likes to be independent. Do it its own way. That's right On brand for us All right. So we have talked a lot about Loper Bright, but when I listened to you at the APA, you mentioned that it's been a really interesting year for the Supreme Court. Are there any other cases or decisions that maybe our listeners should know about that could potentially impact environmental litigation?

Andy Leman:

Yeah, I mean to me the Supreme Court is always interesting, but particularly interesting to kind of regulated industries. This year, yeah, in addition to Loper Bright, we had a decision in a case called Ohio versus EPA. It was a challenge to the EPA's approval of a good neighbor plan, again under the Clean Air Act, the EPA. The important thing to know, I think, is just the EPA got a lot of public comments from industry as it was looking at this issue. That pointed out some pretty serious problems and issues with the plan and when EPA issued its final rule, it never really even tried to address those comments. You know it basically ignored them and the Supreme Court said look, you don't necessarily have to agree with those comments or do what they're asking you to do, but you can't just ignore them and pretend nobody said anything. You've got to provide some kind of an explanation and I do think that's helpful and it should cut both ways Right. Both ways right. It's not a again, it was a pro-industry result here, but you could just as easily see if you had a less pro-environment right president in office, you could see that getting used the other direction as well.

Andy Leman:

But really the other kind of landmark case that I think goes hand in hand with Loper Bright, was one that didn't have anything to do with environmental regulation. It was an SEC, a Security and Exchange Commission case SEC versus JARCSEE and the SEC had imposed fines on someone for violating securities laws, something they've been doing for quite some time. There was no court trial or jury trial right. It didn't go to civil court. It was all handled internally through the SEC's administrative process. I'm sure for folks in your world would remind people of what the process looks like when the environmental regulators come knocking and say you didn't file your reports right or you had a spill and we're going to fine you right. The Supreme Court said hey, you can't impose civil penalties on someone through an administrative process. We have a constitution and the constitution promises the right to a jury trial, and even in a civil case, I haven't heard an argument yet for why that reasoning in the SEC case wouldn't also apply to civil penalties issued by the EPA or the Corps of Engineers or any other federal agency.

Shannon Oelkers:

So does that apply to individuals or does it apply to corporations acting as the individual?

Andy Leman:

Yeah, I mean I would think it would apply regardless. Right Interesting, there was an individual though in that case and the whole issue of when is a corporation a person and when are they not is an interesting one too, Right up there with navigable water we have to wait and see right, but I would kind of expect that it wouldn't matter, wouldn't matter.

Andy Leman:

So I think, if you're going to go, if you really want to fight and you don't want to settle, it does seem like it's opening the doors to saying, hey, we're not just going to have people in the agency deciding whether we did wrong and how much right that they're going to have to go get a jury to sign off on that. Now, you know, is that going to give regulated businesses more leverage to get favorable settlements? Will it encourage agencies to levy bigger fines or threaten?

Andy Leman:

bigger fines to try to get you to settle and not go to civil court. We just don't know. One thing I do know is that civil trials are one of the most expensive things you can pay a lawyer to do for you, right, are one of the most expensive things you can pay a lawyer to do for you, right? There's a reason why so many civil cases settle or get resolved through arbitration or mediation. So I'd be a little surprised if we saw a lot of these penalty cases going to civil trials. But it is definitely going to change the process for finding facts when people aren't willing to settle, related to violations of environmental standards and really any other administrative penalty process. So probably more court cases, fewer administrative hearings. That is a case where I think I'm not so sure. Loper Bright increases the court's workload that much. I think they were already doing that work. It just kind of changes what it looks like, but, darcy, seems like it might actually mean more court cases, right?

Shannon Oelkers:

Well, and I think it's important for our clients to keep it in mind if they go through an administrative settlement process, because that may be driving up some of those civil penalties. And when you're negotiating, it's helpful to understand what levers are being pulled on the back end.

Andy Leman:

For sure, yeah, sure. So my advice is talk to your lawyer about it.

Shannon Oelkers:

Amen, all right. So my last question is just for fun, andy do you have any interesting or fun stories you want to share with our viewers about living and working in Alaska, because we're all Alaskan. We all have that story.

Andy Leman:

Yeah, yeah, I mean, once upon a time we had a well, very well-loved client of the firm. Call our lawyers the gray people, because she said we weren't any fun. And I mean I'm not going to say I wasn't a little offended by that, but it was also like well, does the truth hurt, right?

Shannon Oelkers:

Were you wearing a gray suit when she said this?

Andy Leman:

I yeah, and you know you've. How many times have you been to a party and heard someone say, hey, you know it would liven this up. A utility lawyer, right, lawyer right.

Shannon Oelkers:

Well, your presentation was one of the best ones I've ever seen from a lawyer. You were very entertaining, so I think you're the exception to the rule, andy.

Andy Leman:

That's very kind. Now a lot of Alaska interesting stories end up being fatal or near fatal, so I'm actually kind of grateful that I don't really have any. The closest I get to that is I did have a big meeting with a board that I had to fly out to once. It was a zero dark 30 departure where I wasn't completely awake, probably. When I got up, family was all asleep, pitch black in the house, got dressed as quietly as I could, tried not to turn any of the lights on, got out to my car, drove over to the airport I could tried not to turn any of the lights on got out to my car, drove over to the airport, started walking towards the terminal and as I really started walking, it just felt like something was off, like somehow one of my legs had gotten longer than the other overnight, and I looked down under those bright lights in the garage and saw one black dress shoe and one brown dress shoe.

Shannon Oelkers:

It wasn't just your socks that you could kind of skate by with no no, no, they were in the dark.

Andy Leman:

Granted, they may have looked like the same color, but yeah so, and of course I was cutting it last minute, did not have time to go back and do a swap out, so I just went ahead and limped to the plane and I texted the manager I was working with at the time and, luckily, he had a son who had a pair of what he referred to as wedding slash funeral shoes that were his feet were only slightly bigger than mine.

Andy Leman:

So, I had all these contingency plans for how I would be able to sit at the table and would never have to get up or walk around the room so that, hopefully, no one would see my feet. I did not have to execute any of those plans. Yeah, I worked with that manager for many years after and he, he still likes to remind me every once in a while to check my shoes before I yeah, every time, I am sure.

Shannon Oelkers:

Well, andy, it has been a genuine pleasure to have you on the podcast. Thank you for having put so much thought into these answers. I think this is going to be really helpful to all of our listeners in sort of applying all the. You know there's a lot of analysis and articles and memes and Twitter and everything, but I really like our conversation. I feel like is a good guidance for, like, how to manage your operation facility business and navigate the next couple of years and sort of understand what to look out for and maybe what to pay attention to and what to pay less attention to. So I appreciate that you gave us those tools and thank you so much for coming on.

Andy Leman:

Well, thanks for having me.

Shannon Oelkers:

All right, thank you so much, andy. We will go ahead and include some links to those court cases that Andy mentioned in our show notes. And again, andy, just a genuine pleasure to have you. Thanks, hi there. This is Shannon Oelkers and, as the owner of Integrity Environmental, I wanted to take a minute here at the end of the podcast to make sure that you knew the following this podcast is for informational purposes only and should not be considered legal or regulatory advice. We are not responsible for any losses, damages or liabilities that may arise from the use of this podcast. This podcast is not intended to replace professional regulatory or legal advice, and the views expressed in this podcast may not be those of the host that would be me or Integrity Environmental. Thank you very much for listening and if you do need professional regulatory advice, we'd be happy to help you as part of our consulting services.

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Shannon Oelkers

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