A proactive framework for analyzing regulations can help municipalities regulate without Chevron deference.
Two years after the U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, the doctrinal consequences for federal agencies have received substantial scholarly attention. Far less attention has been paid to the decision’s practical impact on the approximately 90,000 local governments that implement federal statutes every day—and that now do so without the interpretive safe harbor that Chevron deference once provided.
The problem is concrete. Under Chevron v. National Resources Defense Council, courts were required to defer to reasonable agency interpretations of ambiguous statutes. Municipalities could rely on agency guidance as a reliable baseline for regulatory compliance. If a local ordinance tracked an interpretation of the Clean Water Act from the U.S. Environmental Protection Agency (EPA), or a zoning plan followed the U.S. Department of Housing and Urban Development’s guidance on fair housing, that alignment provided meaningful legal protection. Post-Loper Bright, that protection is gone. Courts now exercise independent judgment on statutory meaning, and the outcome of cases challenging state regulations increasingly depends on which federal circuit of the U.S. court of appeals the municipality finds itself in, which judge draws the case, and what interpretive approach that judge brings to the text. Scholars have aptly described this new reality as a form of “judicial lottery,” where outcomes increasingly depend on which federal circuit and which judge hears the case.
The Court’s March 2025 decision in City and County of San Francisco v. EPA illustrated this new reality vividly. The Supreme Court, relying explicitly on Loper Bright, ruled that EPA had exceeded its Clean Water Act authority by imposing outcome-based conditions to receive permits to discharge certain pollutants. San Francisco won. But the decision also demonstrated how municipalities are left exposed when federal agency authority contracts: The regulatory landscape shifts, courts of appeals diverge, and local governments are left to navigate the resulting uncertainty without adequate tools.
The standard risk assessment instruments available to municipalities were not designed for this environment. Regulatory impact analysis focuses on economic consequences. Environmental impact statements assess ecological effects. Fiscal impact analysis forecasts budgetary implications. None of these instruments evaluates the judicial resilience of regulatory language—the question of whether a proposed ordinance, permit condition, or zoning rule will survive independent judicial scrutiny in a post-Loper Bright world.
This gap calls for a new tool. To address it, I have developed the “judicial impact assessment”(JIA)—a four-part analytical framework that enables municipal attorneys to evaluate proposed regulations before adoption, building judicial resilience into the drafting process rather than defending inadequate language in court.
JIA works through four sequential steps. A “statutory ambiguity scan” opens the process by identifying provisions containing vague, overbroad, or agency reference-dependent language likely to attract judicial scrutiny. From there, a “record of expertise audit” and “litigation risk profile” evaluate the quality of the evidentiary record underlying the regulation, since that record now directly determines how much persuasive weight a court will extend under Skidmore v. Swift, the longstanding Supreme Court framework for the persuasive weight of agency interpretations that has taken on renewed importance after Loper Bright.
That record could include expert opinions, public hearing documentation, or exposure to state preemption. A “fiscal and administrative impact forecast” then estimates the real costs of judicial invalidation: litigation expenses, loss of federal grants, and operational disruption. The process concludes with a “mitigation and redesign strategy” that converts identified risks into concrete revisions: clearer language, stronger evidentiary foundations, severability clauses—provisions that allow the rest of an ordinance to remain in effect even if one section is struck down by a court—and alternative regulatory mechanisms.
The framework is deliberately practical. A typical JIA review of a proposed ordinance would require eight to 20 attorney hours —a modest investment compared to the $150,000 to $500,000 average cost of a single federal lawsuit. For a municipality facing even one legal challenge per year, JIA pays for itself many times over.
The inspiration for this framework came from my 13 years of experience in Ukraine’s Office of the President, where I participated directly in designing the country’s nationwide decentralization reform—one of the largest transfers of power from central to local government in post-Soviet Europe. During that process, identifying statutory ambiguities before legislation was enacted, rather than litigating them afterward, proved critical to the reform’s durability. Local budget revenues grew from $1.5 billion in 2014 to $5 billion in 2018—an outcome that depended on legal predictability at the drafting stage.
The American context is far more complex: 50 sovereign states, 14 active federal circuits of the federal courts of appeals, and a tradition of judicial independence that Loper Bright has substantially reinforced. But the core institutional lesson transfers. When the legal environment shifts in ways that increase interpretive uncertainty, local governments need proactive analytical capacity, not reactive litigation strategy.
The post-Loper Bright administrative state is still taking shape. Courts of appeals are diverging in their approaches to Skidmore deference. Under National Cable & Telecommunications v. Brand X Internet Services, 545 U.S. 967 (2005), an agency interpretation of an ambiguous statute entitled to Chevron deference could override a prior court of appeals construction of the same statute — effectively allowing agencies to displace circuit court precedent through reinterpretation. That framework has been structurally destabilized by Loper Bright: because courts now exercise independent judgment on statutory meaning rather than deferring to agencies, there is no longer a Chevron-based mechanism through which agencies can supersede prior judicial constructions, leaving interpretive divergences across circuits less tractable and harder to resolve.The U.S. Congress remains gridlocked and unlikely to provide statutory clarity in the near term. In this environment, municipalities that wait for legal certainty to arrive from above will find themselves repeatedly exposed.
The most effective response is not to wait. It is to build regulatory resilience from the ground up, at the drafting stage, before an ordinance becomes a lawsuit. That is what the judicial impact assessment framework is designed to do.
