not “reasonable” — a much more daunting task. Accordingly, banks may gain more leverage in dealing with their regulators and in challenging their decisions. Although automatic deference has been eliminated, courts are not precluded from considering the views of the regulatory agency when determining the “best reading” of a statute. In Loper Bright, the Court cited to Skidmore v. Swift, which indicated that courts should give no presumptive weight to agency interpretations; instead, courts should consider the agency’s power to persuade.11 Overall, Skidmore addressed the weight given to an agency’s views and concluded that a court was to consider the “thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all of those factors which give it the power to persuade.”12 Careful Rulemaking Regulatory agencies will need to be more careful when drafting rules to ensure that there is statutory basis for their rulemaking. The ability of regulators to respond to risks in areas not covered by statute will be greatly diminished. This reduced ability may force legislative action to address these risks and permit the industry members to be involved in the legislative process. However, it could also be detrimental to the banking industry because the risks to the industry evolve at such a rapid pace that the legislative process cannot effectively address these risks. Regulatory Uncertainty The most concerning impact of the end of Chevron deference on the banking industry is regulatory uncertainty. Predicting how a court will rule on the validity of agency regulations and interpretations that rely on broad or ambiguous statutory language, without Chevron deference, will be challenging. Although the regulatory burden on the banking industry has been significant, it is important that banks are able to rely on regulations when establishing processes and procedures, and planning for future compliance. As the “best” interpretations of statutes are established over time, the regulatory uncertainty should be minimized. 1. Chevron USA. Inc. v. Natural Resources Defense Council Inc., 468 US 837 (1984). 2. Id. at 837. (“[I]f Congress has not directly spoken to the precise question at issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”) 3. See e.g., Garcia v. Sessions, 856 F.3d 27, 35 (1st Cir. 2017); Lopez v. Terrell, 654 F.3d 176, 181 (2d Cir. 2011); Vineland Fireworks Co. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 544 F.3d 509 (3d Cir. 2008); N.L.R.B. v. Bluefield Hosp. Co., LLC, 821 F.3d 534 (4th Cir. 2016). 4. Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 219 L. Ed. 2d 832 (2024). 5. Id. at 2247. 6. Id. at 2247 citing Marbury v. Madison 1 Cranch 137, 177, 2 L.Ed. 60. 7. Id. at 2266. 8. Id. at Fn. 26. 9. Id. at Fn. 26. 10. Id. at 2269. 11. Id at 2247 citing Skidmore v. Swift, 323 U.S. 132 (1934). 12. Id. at 2247. Amy J. Tawney is a partner in the Charleston, West Virginia, office of Bowles Rice LLP. She focuses her practice on banking law, mergers and acquisitions, securities law and regulatory matters. Contact Amy at (304) 347-1123 or atawney@bowlesrice.com. Jessica P. Tarantine is an associate in the Canonsburg, Pennsylvania, office of Bowles Rice LLP. She focuses her practice on areas of employment benefits, executive compensation and ERISA. Contact Jessica at (724) 514-8924 or jessica.tarantine@bowlesrice.com. As the “best” interpretations of statutes are established over time, the regulatory uncertainty should be minimized. 20 West Virginia Banker
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