AGC joined a U.S. Chamber of Commerce-led amicus brief asking the U.S. Supreme Court to review an appeals court decision that creates roadblocks for trade associations and businesses challenging illegal federal agency actions.

Why AGC got involved. AGC has to safeguard the association's ability to challenge rules that predictably affect construction firms' economic interests even when they aren't directly regulated by the rules. The outcome of this case could have far-reaching implications, not just for the construction industry, but for anyone affected by federal regulations. Here is the background.A recent D.C. Circuit Court opinion in Ohio v. EPAmay make it harder for AGC of America and other industry groups to file lawsuits challenging federal agency actions that harm their members. The decision requires plaintiffs (those suing) to provide detailed evidence that a court ruling would fix their injuries. AGC's coalition amicus briefcalls for Supreme Court intervention; without it, the D.C. Circuit's decision could close the door to many legal challenges against federal agency overreach - by forcing indirectly regulated entities to rely on directly regulated parties for legal challenges. Notably, the D.C. Circuit handles the vast majority lawsuits challenging agency decisions (and reining in agency overreach).

The coalition brief supports private-sector petitioners in Diamond Alternative Energy, LLC v. EPA and argues that challengers to government action may rely on the likely, predictable downstream effects of the regulation on third parties to meet the "legal standing" burden of showing that a favorable decision by the court will "redress" or fix their alleged harm/injury. The brief also emphasizes that judicial review is even more critical given the expansive reach of the modern administrative state. Federal agencies now generate vast amounts of regulations impacting nearly every aspect of the business of construction. Judicial review is crucial to correct unlawful agency actions and to ensure that agencies adhere to statutory authority and proper procedures.

In this litigation, fuel companies and associations, agricultural groups, and states are challenging a Clean Air Act "waiver" from the U.S. Environmental Protection Agency that authorizes California to set its own strict vehicle emission standards. This rule aims to cut emissions, but it also indirectly impacts businesses that produce fuels, as fewer vehicles using their products will be sold. In relevant part, the D.C. Circuit held that the private-sector fuel companies did not have "legal standing" to challenge EPA's action, because they were not "the object of the action" at issue, but rather indirectly impacted - and because their economic injuries hinge on actions taken by vehicle manufacturers. In summary, the court concluded the fuel companies had not shown that a favorable decision from the court would redress their economic injuries. Our brief argues that the D.C. Circuit erred by requiring, or coming close to requiring, businesses that are indirectly harmed by a law or regulation to submit declarations from directly regulated parties to show standing to sue. Here, the evident purpose of the California rule is to reduce the demand for liquid fuel; as the fuel businesses pointed out, demand for such fuel would go up if the rule were invalidated.

The Construction Advocacy Fund. AGC's legal efforts are costly and only made possible by contributions to the Construction Advocacy Fund. You can visit hereif you would like the latest news feed on AGC's judicial efforts. To support these efforts financially, consider making a corporate donation here.For more information, contact Leah Pilconis, General Counsel, at 703-837-5332.