August 05, 2013 Articles

Regulators Must Give Fair Warning of Forbidden Conduct or Requirements

Industry may find itself subject to enforcement actions for engaging in conduct it believed to be acceptable.

By Kenneth Anspach – August 5, 2013

Industry subject to environmental regulation—whether from such agencies as the U.S. Environmental Protection Agency; the Illinois Environmental Protection Agency; and other state and local agencies, boards, and entities—often finds itself subject to ambiguous statutes, rules, and regulations. This ambiguity lends itself to expectations on the part of industry regarding the scope and nature of acceptable conduct. These expectations may or may not comport with agency interpretations of these statutes, rules, and regulations. As a result, industry may find itself subject to enforcement actions for engaging in conduct that it believed to be acceptable but that the agency interprets as prohibited. Now, as a result of the recent decision of the U.S. Supreme Court in Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2167 (2012), these interpretations must be tempered by the Court’s holding that “agencies should provide regulated parties ‘fair warning of the conduct [a regulation] prohibits or requires.’”


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