Week in Review

IN THE NEWS

• U.S. Secretary of Energy Rick Perry announced his resignation effective December 1. Secretary Perry’s announcement comes days following his refusal to comply with a U.S. House of Representatives subpoena for documents related to his meetings with Ukrainian government officials. He denies that his resignation is related to the impeachment inquiry into President Donald J. Trump. President Trump will nominate Deputy Secretary Dan Brouillette to succeed Perry.
• The U.S. Supreme Court agreed to hear a lawsuit alleging that the structure of the U.S. Consumer Financial Protection Bureau (CFPB) violates the U.S. Constitution. Under the Dodd-Frank Act, the President can only remove the director of the CFPB for good cause. The plaintiff, a law firm under investigation by the CFPB, alleges that the Act’s good-cause removal provision unconstitutionally limits the President’s ability to oversee the executive branch. The Court also asked the parties to prepare one additional issue—whether, if the removal provision is unconstitutional, the rest of the Dodd-Frank Act also must fall.
• The Supreme Court refused to halt a lawsuit brought by the city of Baltimore against 26 oil companies for their contributions to climate change. The companies had previously attempted, and failed, to convince the U.S. Court of Appeals for the Fourth Circuit to block the case after a federal judge ruled that the case could proceed in state court.
• The Trump Administration filed a lawsuit against California for engaging in a cap-and-trade agreement with the Canadian province of Quebec. The complaint stated that the U.S. Constitution grants the federal government exclusive authority to conduct foreign affairs and allowing California to continue “would unlawfully enhance state power at the expense of the United States.” California Governor Gavin Newsom reportedly said, “this latest attacks shows that the White House has its head in the sand when it comes to climate change and serves no purpose other than continued political retribution.”
• The U.S. Department of Agriculture’s (USDA) Office of the Inspector General will investigate whether the agency withheld scientific studies on the impact of climate change on crops. The inquiry comes in the wake of a report issued by the House Democratic Policy and Communications Committee describing USDA’s systematic failure to publicize climate change research. The Inspector General will determine “whether changes in policy and/or processes impacted the publication of scientific reports, documents, and/or communications of USDA’s research results” during the past two years.
• The U.S. Fish and Wildlife Service (FWS) issued a permit for California’s Central Valley Project and State Water Project, finding that the projects will not jeopardize threatened fish species, including the delta smelt. The permit rolls back protections for the delta smelt established in 2008 in response to Central Valley Project and State Water Project operations. The FWS maintained that the projects’ operation plans will “minimize impacts to fisheries and the environment and provide needed water to the State’s farms and people.” Critics like Doug Obegi of the Natural Resources Defense Council pointed out that U.S. Secretary of the Interior David Bernhardt, a former lobbyist for the Westlands Water District, is already under investigation for allegedly using his position to advance his former client’s goals—including a rollback of protection for the delta smelt.
• The U.S. Court of Appeals for the Ninth Circuit upheld an injunction that blocked two rules that limited birth control coverage. One rule allowed health providers to opt out of providing mandated items, such as contraceptives, on the basis of their “sincerely held religious beliefs,” and the second rule clarified that if no religious or moral objection existed, then preventive services coverage still applied. Judge Clifford Wallace wrote that when Congress enacted the Patient Protection and Affordable Care Act, Congress considered religious and moral protections, and to hold otherwise “contradicts congressional intent that all women have access to appropriate preventative care.”
• President Trump issued an executive order that re-established a scientific committee known as the President’s Council of Advisors on Science and Technology (PCAST). The order stated that the PCAST will evaluate problems relating to science and technology for the president and that all administrative agencies must provide the PCAST with relevant scientific and technological information upon request.
• Maryland Attorney General Brian Frosh sued Westminster Management, a property management company previously run by President Trump’s son-in-law Jared Kushner, for illegal and exploitative rental practices. Frosh alleged that the company “violated numerous consumer protection laws” by “taking advantage of consumers, primarily low- and middle-income families, collecting fees and other unlawful costs from them and often failing to make the repairs needed to maintain suitable environments for their tenants.” Laurent Morali, the CEO of Kushner Companies, reportedly vowed to fight the charges and accused Frosh of caring “more about scoring political points than fighting real crime.”

WHAT WE’RE READING THIS WEEK

• In a new article, Justin Elliott and Paul Kiel of ProPublica investigated the Internal Revenue Service’s (IRS) failure to adequately regulate tax filing businesses. Elliott and Kiel traced the history of IRS deals with Intuit, the maker of TurboTax, whereby the federal government would refrain from creating its own free tax filing service in exchange for Intuit offering free services for low-income Americans. Despite ample and well-publicized evidence that Intuit’s free services were not, in fact, free, the IRS continued to sign agreements with Intuit, Elliott and Kiel wrote. The Inspector General for Tax Administration is reportedly in the process of auditing the agency’s latest contract with Intuit.
• Should agencies use their regulatory authority to fix legislative drafting errors? Perhaps not, Leigh Osofsky of the University of North Carolina School of Law argued in a forthcoming article for the Iowa Law Review. Because of the messiness of the legislative process, Osofsky wrote, administrative agencies often quietly fix apparent drafting errors through rulemaking or informal guidance. But the practice violates principles of congressional supremacy and democratic accountability, she argued. Osofsky concluded that it would be better to reform the legislative process itself or improve agency transparency and accountability.
• In a forthcoming article for the UCLA Law Review, Professor Allison Hoffman of the University of Pennsylvania Law School argued that policymakers have relied erroneously on market-based policies for health care services. Market-based policies have not performed efficiently, Hoffman noted, because they fail to capture what consumers want. She pointed out that instead of fixing the health-care system, constant regulatory initiatives have only created an ineffective and massive market bureaucracy.

FLASHBACK FRIDAY

• In a 2017 essay for The Regulatory Review, Craig Segall and David Hults of the California Air Resources Board argued that subnational actors—such as states and cities—are crucial players driving climate policy. Local actors often lead the way for federal environmental action by developing innovating environmental policy solutions in areas such as clean energy and emissions reduction, Segall and Hults argued. Although they acknowledged that more federal support is needed, Segall and Hults cautioned that exclusively national or global solutions to the climate crisis risk depriving government of the experimentation and democratic accountability that comes from locally-driven action.