Week in Review

IN THE NEWS

• A federal judge denied a request for a preliminary injunction that would have halted the U.S. Department of Labor’s (DOL) fiduciary rule, currently scheduled for implementation in April 2017. The judge reasoned that the sole issue before the court was “whether plaintiff is likely to succeed on the merits of its claim” that the Labor Department did not follow proper administrative procedures in creating the rule, and that the injunction was not warranted because the plaintiff is unlikely to succeed at trial. The future of the rule reportedly remains unclear under a Trump Administration.

• The Senate unanimously passed legislation that would prohibit so-called “gag clauses,” which aim to prevent consumers from posting negative reviews of products online. The bill received bipartisan support—Senator John Thune (R-S.D.) stated that the legislation “supports consumer rights and the integrity of critical feedback about products and services sold online,” and Senator Brian Schatz (D-Hawaii) reasoned that  “[r]eviews on where to shop, eat, or stay on websites like Yelp or TripAdvisor help consumers make informed choices about where to spend their money.”

• Two counties in Utah reportedly filed suit against the Obama Administration over a moratorium on leases to mine coal on federal land issued by the Bureau of Land Management (BLM). In the suit, which is the first to be filed over the moratorium, the counties reportedly alleged that the BLM moratorium violates several laws and requested a court order that the BLM resume its evaluation of leases. The counties reportedly also claimed that jobs will be lost without new mining operations on federal land.

• The U.S. Environmental Protection Agency (EPA) proposed not lowering its car fuel efficiency standards, saying that they should remain in place for car model years 2022 to 2025. EPA Administrator Gina McCarthy reportedly said the analysis of the standards was undertaken in light of “the auto industry’s importance to American jobs and communities and the industry’s need for certainty well into the future.” After “extensive technical analysis,” EPA concluded that “automakers are well positioned” to meet the standards.

• The U.S. Department of Housing and Urban Development (HUD) issued a final rule banning smoking inside public housing facilities. The rule—which bans smoking in all indoor areas and within 25 feet of housing and administrative office buildings—will impact over 940,000 public housing units. The rule will also affect 760,000 children, a group that Secretary of Housing and Urban Development Julián Castro reportedly said “[deserve] to grow up in a safe, healthy home free from harmful second-hand cigarette smoke.”

• President-elect Donald Trump announced that he intends to nominate Representative Tom Price (R-Ga.), a former orthopedic surgeon who is the current chair of the House Budget Committee, and who has a track record of opposing the Affordable Care Act—including by drafting a replacement health law which would have eliminated mandated coverage and incorporated a more free market approach, as well as supporting significant changes to Medicare and Medicaid—as Secretary of the U.S. Department of Health and Human Services (HHS). The New York Times editorial board called the choice “radical,” but it is supported by the American Medical Association.

• Acting to meet a deadline imposed by an amendment to the Toxic Substances Control Act (TSCA) which was signed into law in June 2016, the U.S. Environmental Protection Agency (EPA) announced the first ten chemicals which will be evaluated for the potential risk they pose to human health and the environment. The list includes asbestos, a decision which was welcomed by members of the environmental community and which means that asbestos will now undergo risk evaluations within the next three years. If EPA concludes that any of the chemicals presents an “unreasonable risk,” EPA is statutorily obligated to mitigate that risk within two years.

• The U.S. House of Representatives passed, with broad bipartisan support, the 21st Century Cures Act, a bill which authorizes $4.8 billion for medical research—including funding for the Obama administration’s “moonshot” project to cure cancer and BRAIN initiative to advance understanding of the human brain—gives states $1 billion to combat the opioid addiction crisis, and includes provisions intended to increase the speed at which prescription drugs are approved. The legislation is expected to receive a vote in the Senate next week, is supported by President Barack Obama, but is opposed by Senator Elizabeth Warren (D-Mass.), who characterized the bill as a giveaway to the pharmaceutical industry that goes too far in relaxing some standards for approval of drugs by the U.S. Food and Drug Administration (FDA).

• Sen. Ron Johnson (R-Wis.), Chairman of the Senate Committee on Homeland Security and Governmental Affairs, issued three letters—to the heads of the U.S. Department of Labor (DOL), U.S. Food and Drug Administration (FDA), and U.S. Environmental Protection Agency (EPA)—asking that regulators stop moving forward with several major Obama Administration regulations, including the fiduciary rule and the overtime rule. Sen. Johnson reasoned that the “incoming administration and the 115th Congress will likely re-examine and unwind burdensome regulations,” and he asserted that the recent presidential election had demonstrated the public’s “disapproval of a federal government run by regulation and executive fiat.”

WHAT WE’RE READING THIS WEEK

• A new book entitled “Achieving Regulatory Excellence,” edited by University of Pennsylvania Law School professor and director of the Penn Program on Regulation Cary Coglianese, draws from the work of several international experts to offer insights from a variety of disciplines “on what regulators need to do to improve their performance.” The book seeks to provide guidance “about how regulators can set appropriate priorities and make sound, evidence-based decisions through processes that are transparent and participatory.”

• Sam Batkins of the American Action Forum (AAF) announced that AAF has, through its Reg Rodeo database, calculated that total regulatory costs imposed since 2005 have topped $1 trillion. Over the same period of time, the AAF calculations show that these regulations have required more than 700 million paperwork hours and have also resulted in $745 billion in benefits. Batkins cites the U.S. Environmental Protection Agency (EPA), which the AAF calculations show has generated $191 billion in regulatory costs since 2005, as the top contributor to regulatory costs.

• In an issue brief published by the Wharton Public Policy Initiative at the University of Pennsylvania, Wharton professor Jose Miguel Abito, Massachusetts Institute of Technology professor Christopher R. Knittel, Carleton University professor Konstantinos Metaxoglou, and Getulio Vargas Foundation professor Andre Trindade examine the economic costs and benefits of the Clean Power Plan. The brief concludes that implementing the Clean Power Plan on a state-by-state basis, as opposed to establishing regional targets, is economically efficient, because it will create incentives for states to invest in new natural gas capacity, resulting in an overall decrease in wholesale electricity prices.