Week in Review

IN THE NEWS

• The U.S. District Court for the District of Massachusetts ruled that Harvard University’s affirmative action policy is constitutional. Judge Allison Burroughs wrote that a court “will not dismantle a very fine admissions program that passes constitutional muster, solely because it could do it better.” Lee Cheng, the secretary of the Asian American Legal Foundation, reportedly criticized the decision because “the data showed Harvard racially stereotyped a group of Americans who are supposed to have the same rights to be free from the stigma of racial classification.”
• The U.S. Court of Appeals for the D.C. Circuit upheld a net neutrality regulation by the Federal Communications Commission (FCC) that classified internet service providers as “information services,” in effect scaling back the agency’s ability to regulate them. Citing precedent requiring deference when an agency acts reasonably, the D.C. Circuit found that the FCC had “advanced what is, under controlling precedent, a reasonable interpretation of the statute.” FCC Commissioner Jessica Rosenworcel, who has been outspoken against the new regulation, said the decision “was on the wrong side of American history.”
• The U.S. District Court for the Northern District of Georgia temporarily blocked a Georgia law that would have banned abortions once a fetus has a detectable heartbeat. U.S. District Judge Steve Jones found that the plaintiffs were likely to succeed in their claim that the law violates Georgians’ right to privacy and liberty under the Fourteenth Amendment, noting that “the Supreme Court has repeatedly and unequivocally held that a State may not ban abortion prior to viability.” Joshua Edmonds, executive director of the Georgia Life Alliance, reportedly called the decision “yet another demonstration of judicial activism against an overwhelming majority of Georgians who support protecting innocent life.”
• Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia blocked the U.S. Department of Homeland Security’s (DHS) new rule expediting deportation of undocumented immigrants. Judge Jackson found that the rule would irreparably harm these immigrants and their families, and that DHS likely violated procedural requirements for rulemaking. The White House criticized Judge Jackson’s opinion, stating that expedited removal “is vital to addressing the many aliens in the United States who have no right to remain here.” Trina Realmuto, directing attorney at the American Immigration Council, said the court’s decision “will protect hundreds of thousands of longtime U.S. residents from being deported without a court hearing.”
• DHS announced its latest waiver of U.S. environmental laws, citing “an acute and immediate need” for additional border walls between Texas and Mexico. Acting DHS Secretary Kevin McAleenan referenced high levels of undocumented immigrant and illegal drug traffic across the border and stated that this traffic warrants quick action without consideration of environmental impacts. DHS announced similar waivers in April and August 2019, and the U.S. District Court for the District of Columbia upheld the agency’s right to waive environmental laws. Paulo Lopes of the Center for Biological Diversity reportedly criticized DHS’s latest waivers, calling it “heartbreaking to see dozens of laws ignored so that more of the beautiful Rio Grande Valley can be bulldozed for Trump’s border wall.”
• The U.S. Department of Transportation finalized a rule updating its pipeline safety requirements, nearly a decade after first proposing the changes. The rule will require pipeline operators to make wider use of leak detection systems and to conduct more frequent inspections of pipelines located in disaster-prone and rural areas. U.S. Representative Peter DeFazio (D-Ore.), chair of the House Committee on Transportation and Infrastructure, reportedly praised the changes but warned that “critical safety gaps” remain in the Transportation Department’s pipeline safety rules.
• The Transportation and Climate Initiative—a coalition of 12 northeastern states and the District of Columbia—published a framework for a regional policy proposal to reduce transportation sector carbon emissions across all 13 participating jurisdictions. The framework outlined the major elements of a regional carbon “cap-and-invest” program that would set annually declining carbon emissions limits for the transportation sector, with proceeds to be invested in local carbon reduction initiatives and complementary policy goals. Sierra Club’s eastern region deputy director Mark Kresowik applauded the coalition “for working together to accelerate the clean transportation solutions that our communities desperately need and deserve.”
• California Governor Gavin Newsom signed a bill that will allow college athletes to profit from their endorsements starting in 2023. Newsom said that this bill could “initiate dozens of other states to enact similar legislation.” Citing the confusion that could arise from having varied state laws, the National Collegiate Athletic Association (NCAA) argued that “improvement needs to happen on a national level through the NCAA’s rules-making process.”
• City council members in Ames, Iowa announced their intention to decline a request from the Federal Highway Administration (FHA) to remove the town’s pride flag crosswalks. The council reports that the FHA addressed a letter to the city manager earlier this month, writing that multicolored crosswalks create “confusion for motorists, pedestrians, and other jurisdictions who may see these markings and install similar crosswalk treatments in their cities” and citing FHA guidance on colored crosswalks. Following a reported briefing by city attorney Mark Lambert, the Ames city council determined that the FHA does not have jurisdiction over the roads crossed by rainbow stripes and decided not to accede to the FHA’s request.

WHAT WE’RE READING THIS WEEK

• Claims that federal regulation destroys jobs and imposes excessive costs on the American economy rest on shaky empirical ground, according to an article in Ecology Law Quarterly by Richard Parker of the University of Connecticut School of Law. Current proponents of reducing regulation frequently rely on two studies that found regulation costs the American economy around $2 trillion annually, Parker wrote. But those studies have serious flaws, he argued, including a lack of peer review, methodological shortcomings, and a failure to account for the benefits of regulations. The uncritical acceptance of the studies’ findings by members of Congress, Parker suggested, raises troubling questions about the U.S. government’s ability to make well-founded public policy decisions.
• In a new post for the Brookings Institution blog TechTank, Jack Karsten and Bhaargavi Ashok summarized the different challenges confronting private and public sector use of unmanned aerial systems (UAS). UAS are widely used for commercial purposes but are also employed in government initiatives, including the U.S. Department of the Interior’s use of UAS to monitor acres under agency management. Karsten and Ashok noted, however, that increased use produces increased concern over security, privacy, and physical safety. Karsten and Ashok concluded by calling upon state and federal regulatory agencies to work together to respond to address public and governmental concerns.
• In an article for the Pace Environmental Law Review, Professor Rachel E. Deming of the Dwayne O. Andreas School of Law argued that voters interested in conservation should pass state constitutional amendments that protect the environment. Deming, however, recognized this will not always ensure success, pointing to two examples—Florida’s “Florida Forever” and New York’s “Forever Wild” constitutional amendments—to illustrate differences in state enforcement. She noted that the “Florida Forever” amendment has not been successfully upheld in Florida courts, despite former Governor Rick Scott (R-Fla.) violating a number of its provisions. The New York “Forever Wild” amendment, according to Deming, has seen much more success in court.

FLASHBACK FRIDAY

• In a 2018 article for The Regulatory Review, Randolph J. May, president of the Free State Foundation, predicted that courts would be unlikely to block the FCC’s then-recent order rolling back so-called net neutrality protections. Because courts give substantial deference to agency decisions, May argued, an agency is free to change its position as long as it does not run afoul of the Administrative Procedure Act’s rule against “arbitrary and capricious” agency action. May concluded that the resulting regulatory instability is bad for consumers and suggested that Congress resolve the issue by legislating clear rules on net neutrality.