Week in Review

IN THE NEWS

• The Supreme Court of the United States heard oral argument in U.S. v. Texas—a challenge to one of President Obama’s most significant immigration programs, Deferred Action for Parents of Americans (DAPA), which deferred the deportation of many illegal immigrants whose children were U.S. citizens—the case poses several major administrative issues, with the Supreme Court taking particular interest in whether or not Texas and other states had standing to sue the federal government.

• The U.S. Senate passed the bipartisan Energy Policy Modernization Act of 2016, legislation that is the first broad energy bill in nearly a decade, and that will promote both clean energy—by requiring electrical grid upgrades to better accommodate expanding wind and solar power production—and fossil fuels—by accelerating U.S. exports of natural gas—and that, while it has support from both businesses and environmental groups, has also been criticized by some environmentalists for not going far enough to address climate change.

• The National Credit Union Administration (NCUA) issued a proposed rule that would require top financial executives to set aside a large portion of their incentive pay for four years, and would allow firms to reclaim executive pay for up to seven years if executive actions wind up hurting the company – the measure, drafted with support from five other regulators that will also be considering the rule, stems from the Dodd-Frank Wall Street Reform and Consumer Protection Act and is aimed at ensuring executives are not incentivized to take on what the NCUA called “inappropriate risk.”

• Based on the theory that requiring state and regional planners to consider the climate impacts of their decisions will lead to a more sustainable transportation infrastructure, the Federal Highway Administration (FHWA) proposed a new rule that would require those receiving federal transportation funding to track all greenhouse gas emissions from transportation, and to establish non-binding goals for reducing these emissions.

• President Obama expressed his support for a Federal Communications Commission (FCC) proposal to open up the market for cable set-top boxes, which is currently dominated by cable providers, to greater competition—the President and members of his administration feel that expanding the market will increase the quality of cable boxes and drive down their price, while others feel it could do exactly the opposite, and may even be unnecessary due to technological developments.

• Pennsylvania’s Public Utility Commission (PUC) handed down its largest penalty ever by approving an $11.4 Million fine against Uber for the company’s failure to obtain proper licensure before operating in the state, a reduction from the $50 Million figure that had initially been recommended by administrative law judges – a Commissioner reportedly stated that the fine was necessary because of Uber’s “willful violations” of the Commission’s orders, but a dissenting Commissioner reportedly described it as “grossly excessive” because the violations didn’t cause harm and customers desired the service.

• The Environmental Protection Agency (EPA) issued a final finding that it is “necessary and appropriate” to set standards for mercury emissions emissions from coal and oil-fired power plants—a finding required by the Supreme Court’s ruling last June in Michigan v. EPA, which said that the, before regulating mercury under the Clean Air Act, the agency must complete a cost-benefit analysis and find that the regulation “is necessary and appropriate.”

• The Supreme Court heard oral arguments in a case about whether car dealership service advisors, who interface with customers and discuss service options with them, are exempt from earning overtime under the Fair Labor Standards Act (FLSA) – at issue was a 9^th Circuit Court of Appeals decision which had upheld a Department of Labor (DOL) interpretation that the exemption from the overtime requirements for salespeople, mechanics, and parts workers, does not apply to service advisors, which Penn Law professor Stephanos Bibas, representing the service advisors, defended by arguing that service advisors are less integral to the servicing process than parts workers.

• The Occupational Safety and Health Administration (OSHA) finalized new protections for whistleblowers in the food industry, protecting food workers who report food safety violations from dismissal or other retaliation from their employer—in addition to protection for employees, OSHA claims the rule will help promote the nation’s food safety and security.

WHAT WE’RE READING THIS WEEK

• In a forthcoming article for the Ohio State Journal of Criminal Law, Professor Sam Kamin of the University of Denver Sturm College of Law considered the role of prosecutorial discretion as it relates to laws impacting immigration and marijuana. Professor Kamin discussed how the current Administration has looked to prosecutorial discretion to effectuate policy goals.

• Florencia Marotta-Wurgler, a professor at the New York University School of Law, recently wrote a paper on the current self-regulation model on consumer information privacy. Drawing from her empirical research, she found that, across markets, the average privacy policy complied with 39 percent of the relevant Federal Trade Commission (FTC) guidelines. She also noted that cloud-computing companies are better at complying with data security practices than are other firms.