Week in Review

IN THE NEWS

• The Senate passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act by voice vote, sending the legislation—which was passed by the House last month, and which will reform the Toxic Substances Control Act (TSCA) for the first time since the statute was enacted in 1976—to President Obama, who reportedly intends to sign it into law.  

• In a move aimed at limiting agencies’ rulemaking power, the House Judiciary Committee passed the Separation of Powers Restoration Act, a law that would overrule the Supreme Court’s 1984 Chevron decision that established deference to agency interpretations of ambiguous statutes, and would instead require courts to review all legal questions de novo—Rep. John Ratcliffe (R-TX) argued that granting such deference is like allowing bureaucrats to “grade their own papers,” while Rep. John Conyers (D-MI) countered that all that hampering the rulemaking process for regulations about things like air, water, and food does is put Americans at risk.

• The D.C. Circuit Court of Appeals rejected a challenge by four states to a Nuclear Regulatory Commission (NRC) rule permitting spent fuel rods to be stored indefinitely at nuclear power plants—New York, Vermont, Connecticut, and Massachusetts argued that the NRC had violated its obligations under the National Environmental Policy Act (NEPA) by failing to consider alternatives and making unreasonable assumptions regarding environmental impact, but the court noted that the judiciary’s role is limited when applying arbitrary and capricious review.

• The United States and the European Union agreed to a pact that is intended to prevent EU regulators from blocking transatlantic data transfers by American companies in exchange for the U.S. agreeing to adopt measures to protect the privacy of EU members’ personal data—while the pact will prevent the restriction of data transfers in the short-term, EU data protection supervisor, Giovanni Buttarelli, has been one of many to express doubt as to the pact’s ability to withstand a legal challenge.

• The House passed the Ozone Standards Implementation Act of 2016, a bill that would delay the implementation of the stricter ozone standards set by the Environmental Protection Agency (EPA) last year, and introduce cost as a factor considered in the review of EPA air pollutant rules—while the bill has received support amongst businesses and states, it is unlikely to become law, as President Obama announced he would veto it should it pass the Senate.

• The Department of Labor (DOL) proposed two new rules aimed at improving the safety of miners, covering both examinations of mines prior to the beginning of work, and exposure of miners to harmful exhaust—the Mine Safety and Health Administration (MSHA) stated that effective examinations are crucial to preventing injuries and improving safety conditions, citing data that shows that between January 2010 and December 2015, more than 60 percent of miner deaths resulted from infractions of the “Rules to Live By” standards, which are known to be common causes of mine accidents.  

• The U.S. Environmental Protection Agency (EPA) released its first-ever technical guidance on environmental justice, providing EPA analysts with recommendations for how to incorporate environmental justice concerns—which the EPA defines as potential disproportionate impacts on minority, low-income, and indigenous populations—into the rulemaking process.  

• Rep. Jeb Hensarling (R-TX), chairman of the House Financial Services Committee, released details about the Financial CHOICE Act, a bill that would dismantle much of The Dodd-Frank Wall Street Reform and Consumer Protection Act by repealing the Volcker Rule, weakening the Consumer Financial Protection Bureau (CFPB), and making other policy changes that would limit the regulatory oversight of banks. While Rep. Hensarling said that the bill is a necessary “new legislative paradigm” for the financial sector, the proposal was criticized by Democrats, including Senator Elizabeth Warren (D-MA), as a return to dangerous pre-2008 policies.

• Judge Andrew Hanen of the Southern District of Texas decided to stay his order requiring Department of Justice (DOJ) lawyers to take ethics classes and turn over documents on tens of thousands of immigrants who were granted deferred action. The stay will prevent the order from going into effect until after the DOJ has had an opportunity to make its case against it in August.

WHAT WE’RE READING THIS WEEK

• Preston Cooper of the Manhattan Institute for Policy Research, a leading free-market think tank, recently published an article defending the new powers that would be granted to the Environmental Protection Agency (EPA) under the Frank R. Lautenberg Chemical Safety for the 21st Century Act, a measure currently awaiting President Obama’s signature that would reform the Toxic Substances Control Act (TSCA) to allow the EPA to regulate chemicals used in common household products. Cooper argues that, in the absence of a federal scheme, “an inconsistent patchwork of regulations” has developed as states have passed 167 statutes regulating toxic chemicals, and that a common system would reduce cost and complexity for manufacturers.

• Writing for The Hill, Lawrence J. Spiwak of the Phoenix Center for Advanced Legal and Economic Public Policy Studies criticized Federal Communications Commission (FCC) policies that he believes will significantly diminish future investment in broadband networks. Spiwak pointed to the FCC’s Open Internet Order, which reclassified broadband services as common carrier services, and a newly fractured approach to digital privacy regulation to argue that the FCC is prioritizing the profits of “edge” providers like Google over those of “core” broadband networks like Comcast, a move he believes could have a negative impact on the development of broadband networks.

• Lin-Manuel Miranda, the creator and star of the hit musical “Hamilton,” wrote an op-ed for the New York Times bemoaning the way the widespread use of “ticket bots”—automated software used by third-party brokers to buy tickets as soon as they are released online—has driven up the prices of tickets to “Hamilton” and other popular entertainment events. Miranda urged the New York State Assembly to pass legislation, similar to that already passed by the New York State Senate, that would impose stricter regulations on the ticket resale market and create criminal penalties for repeat offenders.