Week in Review

IN THE NEWS

• The U.S. Senate voted 51-50 to open debate on an act to repeal and replace the Patient Protection and Affordable Care Act (ACA). On Tuesday evening, Senate Majority Leader Mitch McConnell’s (R-Ky.) amended version of the Better Care Reconciliation Act was defeated by a vote of 57-43, with nine Republican Senators in opposition. On Wednesday, a proposal to repeal the ACA and not implement a replacement for two years, was defeated by a vote of 55-45, with seven Republican Senators in opposition. Early Friday morning, the Senate voted 50-49 not to pass the so-called “skinny repeal” of the ACA.
• The U.S. House of Representatives passed a resolution using the Congressional Review Act (CRA) to override the Consumer Financial Protection Bureau’s arbitration rule. The rule would allow consumers to pursue a class-action lawsuit instead of forcing the use of arbitration where there is a dispute over bank and credit card accounts. The Trump Administration supported the resolution and stated that the “legislation would protect consumer choices by eliminating a costly and burdensome regulation” and that if the resolution, in its current form, were presented to President Trump, “his advisors would recommend that he sign it into law.” The U.S. Senate Committee on Banking, Housing, and Urban Affairs announced that the Committee’s Chairman Mike Crapo (R-Idaho) and Republican colleagues would file a CRA Joint Resolution of Disapproval in the Senate.
• California Governor Jerry Brown signed cap-and-trade and air quality bills to combat climate change in the state. The cap-and-trade bill would “strengthen and extend the state’s cap-and-trade program, which would have expired without legislative action.” It would to lower carbon pollution “as the program’s emissions cap declines.” The air quality bill would “measure and combat air pollution at the neighborhood level – in the communities most impacted.” Professors Cary Coglianese of the University of Pennsylvania Law School and Shana Starobin, Assistant Professor of Government and Environmental Studies at Bowdoin College,  note that “subnational governments may offer the only meaningful hope for the United States to make significant policy progress,” but those governments should be mindful of “larger legal constraints.”
• The U.S. Department of Labor (DOL) requested public comment on a 2016 rule that increased the number of employees eligible for overtime payment under the Fair Labor Standards Act, in part by raising the salary level needed for exemption from overtime payment. In November 2016, the U.S. District Court for the Eastern District of Texas blocked the DOL from executing the rule. The DOL has asked the public to weigh in on whether the salary level in the 2016 rule should be changed and what should be the proper test to determine whether an employee is exempt.
• The United Kingdom announced that it will ban the sale of new diesel and gasoline cars in 2040. The government claimed this ban “will resolve the country’s air quality problem as combustion engines gradually disappear from the streets of our towns and cities.” Mike Hawes, Chief Executive of the Society of Motor Manufacturers and Traders, reportedly warned against an outright ban on diesel vehicles because such a ban “could undermine the UK’s successful automotive sector.”
• Twelve state attorneys general sued the U.S. Environmental Protection Agency (EPA) over its decision to delay a chemical facility safety regulation. The states claimed that the Clean Air Act (CAA) mandated this rule, so EPA’s delay violated the CAA. The suit is led by New York Attorney General Eric Schneiderman who said of the delay, “The Trump EPA continues to put special interests before the health and safety of the people they serve.” EPA claimed it is delaying the rule to “fully evaluate the public comments raised by multiple petitioners and consider other issues.”
• The U.S. Department of the Interior’s Bureau of Land Management (BLM) proposed a rule that would rescind its 2015 rule that governed standards for hydraulic fracturing activities on tribal and Indian lands and would return to language that “existed immediately before” the rule went into effect. The BLM stated this 2015 rule was “unnecessarily duplicative of state and some tribal regulations and imposes burdensome reporting requirements and other unjustified costs on the oil and gas industry.”
• Thirty-six U.S. Senators asked U.S. Secretary of the Interior Ryan Zinke to increase the number of offshore sites in the Outer Continental Shelf where oil and natural gas can be drilled. Even though a Five Year Program already established offshore drilling locations, the Senators wrote that they wanted Zinke “to carefully review those areas that were not included in the 2017-2022 Five Year Program to ensure that opportunities are not missed.” The Senators noted, “Offshore leasing benefits the economies of all the states, helps reduce the federal deficit, provides affordable energy to families and businesses, and strengthens our national security.”
• The Transportation Security Administration (TSA) announced that it is implementing a new regulation that will require all electronics larger than a cellphone to be placed in individual bins for X-ray screening. TSA said separate X-ray screening allows TSA officers to “obtain a clearer X-ray image.” Acting TSA Administrator Huban Gowadia explained the rationale behind the new process: “It is critical for TSA to constantly enhance and adjust security screening procedures to stay ahead of evolving threats and keep passengers safe.”

WHAT WE’RE READING THIS WEEK

• In a paper, Donald Kochan, Professor and Associate Dean for Research and Faculty Development at the Chapman University Dale E. Fowler School of Law, explained why the notice and comment process, which Kochan dubbed the “commenting power,” is “so critical” in our democratic republic. Kochan described general case law involving the “commenting power” and provided a “critical tutorial” for anybody interested in getting involved with regulatory change.
• In an article, Stephanie Strom of the New York Times examined findings by the Organic Consumers Association of glyphosate, an herbicide, in ten out of eleven samples of Ben and Jerry’s ice cream. Strom noted that there have been “divergent findings over glyphosate’s impact on health” which “have divided governments, scientists, regulators and even the World Health Organization.” Strom wrote that certain regulators deem the levels trivial because the quantities are “far below” the EPA’s cap. However, she also acknowledged a study that “suggests that the glyphosate levels still might be significant” as well as the difficulty that the U.S. Food and Drug Administration has with testing for glyphosate.
• In an essay for the George Mason Law Review, David Zaring, Associate Professor at The Wharton School of the University of Pennsylvania, identified “the ways that law and regulation will affect the response to the next financial crisis.” Zaring argued that the response will lie primarily in local regulation that “will be created and applied as the result of an international process.”