Week in Review

IN THE NEWS

• President Donald Trump disbanded the Presidential Advisory Commission on Election Integrity because many states were unwilling to share their voter data with the Commission. “Rather than engage in endless legal battles at taxpayer expense,” the White House reasoned, President Trump decided to dissolve the Commission and is considering next steps.
• The Trump Administration announced its plan to develop the National Outer Continental Shelf Oil and Gas Leasing Program, which would allow new offshore oil and gas drilling in nearly all United States waters. Noting that not all areas are appropriate for offshore drilling, U.S. Department of the Interior Secretary Ryan Zinke said “the important thing is we strike the right balance to protect our coasts and people while still powering America and achieving American Energy Dominance.”
• The U.S. Department of Justice (DOJ) issued a memo rescinding previous guidance that allowed states to implement their own marijuana laws without federal enforcement. The memo also directed all U.S. Attorneys to “enforce the laws enacted by Congress and to follow well-established principles when pursuing prosecutions related to marijuana activities.” Washington Governor Jay Inslee, whose state has legalized recreational marijuana, said this decision “is the wrong direction for our state” and he will “vigorously defend” the state’s laws “against undue federal infringement.”
• Paul Manafort, President Trump’s former campaign manager, filed a lawsuit against the DOJ and Special Counsel Robert S. Mueller III. Manafort claimed that Mueller—who is investigating Russian interference in President Trump’s presidential election campaign—had impermissibly surpassed his power under DOJ regulations by indicting Manafort for activity unconnected to the campaign. Manafort also alleged that the DOJ gave too much power to Mueller when initially appointing him, which violated the Administrative Procedure Act’s prohibition on “arbitrary and capricious” actions.
• The U.S. Environmental Protection Agency (EPA) took seven “Superfund sites” off of the National Priorities List (NPL). Under Superfund, a federal law, EPA can “clean up contaminated sites” like landfills and mining areas. The NPL identifies the sites that require such a cleanup. EPA justified the recent elimination of seven sites by noting that “all remedies are successfully implemented and no further cleanup is required.”
• The U.S. Fish and Wildlife Service (FWS) proposed to list the Barrens topminnow, a small fish found in Tennessee, as an endangered species under the Endangered Species Act. According to the FWS, the top threat to the Barrens topminnow is the western mosquitofish which “prey on young topminnows and harass adults” causing only adults to remain after spawning season. After being proposed for endangered species protection more than 40 years ago, a senior scientist at the Center for Biological Diversity said she hopes that this proposal “will be the turning point that keeps it from being lost forever.”
• The Federal Trade Commission approved a settlement with Lenovo, a computer manufacturer, over claims that the company sold computers with pre-loaded software that exposed customers to security risks in order to target advertising. As part of the settlement, the company must fully disclose the presence of this kind of software on its computers and get consumers’ consent to run the software.
• The Committee on Foreign Investment in the United States (CFIUS) blocked the sale of MoneyGram, a money transfer company, to Chinese company Alibaba due to concerns over data safety. Alex Holmes, MoneyGram’s Chief Executive Officer, explained that MoneyGram was “disappointed” by the decision and reasoned that CFIUS blocked the merger because of a changing “geopolitical environment.”
• The Pennsylvania Department of Environmental Protection (DEP) ordered Sunoco to stop working on a pipeline it was constructing through seventeen Pennsylvania counties until it complied with applicable permitting requirements. The DEP found that Sunoco had violated several environmental laws and regulations and that it did not meet certain permitting requirements. DEP Secretary Patrick McDonnell said of the order, “We are living up to our promise to hold this project accountable to the strong protections in the permits.”

WHAT WE’RE READING THIS WEEK

• In a forthcoming article for the Fordham Law Review, Catherine Sharkey of the New York University School of Law argued that reviewing courts should incorporate State Farm “hard look” review when evaluating the second step of Chevron review—considering whether an agency’s statutory interpretation was reasonable. Sharkey contended that incorporating the State Farm rule, which requires “reasoned decisionmaking” by the agency, into Chevron review would mitigate “judicial acquiescence to agencies’ legal statutory interpretations.”
• In an article for The Hill, Ali Breland identified “five regulatory fights facing tech in 2018” including net neutrality, transparency in elections, the merger between AT&T and Time Warner, cryptocurrency, and sex-trafficking. Specifically, Breland argued that “more scrutiny on election transparency issues” was likely, as legislators are pushing bills to tighten political advertising on popular websites. Breland also noted that “initial steps towards rules on digital currency” are in the works “across the globe.”
• In an essay for the UC Davis Law Review, Jane Bambauer, a professor at the University of Arizona James E. Rogers College of Law, explored whether health and medical artificial intelligence (AI) should be regulated “more like doctors than like devices.” Bambauer concluded that the U.S. Food and Drug Administration should regulate medical AI by “comparing their performance to the costs and error of their nearest substitutes: doctors.”