Holland & Knight Attorneys Comment on Real Estate Policy Areas to Watch in Chevron's Wake

Holland & Knight Chevron Deference Working Team Co-Leader Lynn Calkins and Environment attorney Rafe Petersen were quoted in Law360 and Bisnow articles discussing the challenges that key policies, housing rules, permitting practices and climate goals will face after back-to-back U.S. Supreme Court opinions that alter how and when federal agencies can interpret ambiguous legislation. The articles focus on the top policy areas real estate attorneys are watching in the aftermath of these decisions, including the Fair Housing Act and National Environmental Policy Act (NEPA).

Ms. Calkins noted that basic provisions of the Fair Housing Act will likely remain untouched, as its requirement not to discriminate based on protected class has clear congressional intent. However, she added, U.S. Department of Housing and Urban Development (HUD) policies surrounding "reasonable" accommodations and "usable" housing features are more vulnerable to challenges.

"The Fair Housing Act is very broad in terms of 'you can't discriminate based on a protected class' in terms of areas impacting housing, but in essence, [HUD] has issued lots of policies in terms of screening of tenants and discriminatory impact, and criminal screening and marketing-related issues, all of which are up for debate at this point," she said.

Mr. Petersen explored potential changes to environmental policies and regulations, a key area of interest for real estate and land use lawyers. For example, NEPA Phase 2, a Council on Environmental Quality (CEQ) rule intended to streamline environmental permitting, will require a comprehensive review because of its sheer scope. 

"The new Phase 2 regulations will certainly be challenged; the rewrite that the Biden Administration did was pretty significant," he shared. "I've been doing NEPA for 25 years, and you kind of have to throw out the book. They changed everything from adding principles of environmental justice to dealing with climate change and resilience, so I think... all those things will be subject to challenge, and some of these challenges are already underway, so this will come up relatively quickly."

Mr. Petersen also advised that with regard to recently implemented climate policies, "all of those will be vulnerable because they certainly weren't thought of when the laws were enacted, so it'd be pretty hard to think they were explicitly authorized to take these actions."

Read more in Law360 (subscription required).

Read more in Bisnow (subscription required).

Holland & Knight announced the formation of its Chevron Deference Working Team in advance of the U.S. Supreme Court's June 28, 2024, Loper decision, which overturned the Chevron deference doctrine and will lead to a period of regulatory changes and potential legal challenges for some time.