Page 14 - BB_Mar_2019

relied on Auer to affirm the finding of a violation against
property owners who had constructed a ditch to build a
residential subdivision.
NAHB has long been concerned with this type of judicial
deference because it can create incentives for agencies
to avoid formal rulemaking processes, or create vague
regulations that they can later interpret however they see
fit. Either tactic prevents home builders and other industries
from participating in the development of rules that govern
their activities.
Along these lines, the NAHB brief stated: “With little or no
NAHB Files Amicus Brief in Supreme Court notice, Auer allows agencies to drastically transform the

Challenging Power of Federal Regulators regulatory foundation on which individuals and businesses
have built their lives and livelihoods, and to do so with
NAHB has weighed in on a Supreme Court case that has impunity.”
widespread implications for how courts handle challenges The NAHB Legal Action Committee and legal staff have
to all agency regulations. developed a number of strategies to ensure that NAHB is
The case, Kisor v. Wilkie, addresses the issue of whether well-positioned to influence litigation on the issues that
courts should defer to an agency’s interpretation of its own impact NAHB members, including
regulations, known also as Auer deference. cross-cutting regulatory issues that
NAHB supported the petitioner with an amicus brief as influence how courts review all
part of a proactive strategy developed to identify cases that federal regulatory actions.
put this issue squarely before the Supreme Court. The Supreme Court will hear
The NAHB-led coalition focused its amicus brief on the oral arguments on this case in
real-world consequences that can result when courts defer March, and a decision is
to agencies on their interpretations of their own regulations. expected by the end of
June 2019.
Auer deference has harmed NAHB’s interest in a number
of cases, including a Clean Water Act case where the court NAHB JAN 2019

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14 MARCH 2019 | GREATER SAN ANTONIO BUILDERS ASSOCIATION