Week in Review

IN THE NEWS

• The Council on Environmental Quality announced a proposal to streamline environmental impact assessments for planned federal construction projects. President Donald J. Trump said that the country’s “most critical infrastructure projects have been tied up and bogged down by an outrageously slow and burdensome federal approval process,” and that the new rule would prevent these delays. Senator Maria Cantwell (D-Wash.) emphasized the potential environmental costs of President Trump’s proposal, saying it “favors big polluters and corporate profits over balanced, science-based decision making.”
• The U.S. Department of Transportation released new non-binding guidance for the regulation of driverless cars. Speaking at a tech conference, Transportation Secretary Elaine Chao reportedly stated that although safety is the agency’s priority, “protecting American innovation and creativity” is also an important goal. Her statements aligned with a White House memorandum, released days earlier, that urged policymakers to adopt “a regulatory approach that fosters innovation” by “reducing unnecessary barriers to the development and deployment of AI.”
• The U.S. Department of Housing and Urban Development (HUD) announced a proposed rule that would scale back a fair housing regulation issued under the Obama Administration requiring municipalities to collect housing data and implement desegregation plans to receive federal housing funds. HUD Secretary Ben Carson said the proposal would empower mayors “to make housing decisions that meet their unique needs.” But National Fair Housing Alliance president and CEO Lisa Rice said the proposal “significantly weakens fair housing compliance, entrenches segregated housing patterns, and continues the status quo in which some communities are strengthened by taxpayer-supported programs and amenities while other neighborhoods are starved and deprived of opportunities.”
• The U.S. Environmental Protection Agency (EPA) announced a proposal to regulate nitrogen oxides from heavy-duty trucks. EPA Administrator Andrew Wheeler said the initiative would “lead to a healthier environment.”  But American Lung Association senior vice president Paul Billings reportedly expressed concern that EPA’s proposal was the result of “an attempt by the truck engine manufacturers to undermine or weaken what California is pursuing by going through EPA,” referring to California’s stricter proposed caps for nitrogen oxides.
• U.S. Customs and Border Patrol (CBP) announced the launch of a 90-day pilot program that will collect DNA from detained migrants at ports of entry in Michigan and Texas. The pilot program marks the first step in a proposed plan to collect DNA from undocumented migrants for submission to CODIS, the Federal Bureau of Investigation’s criminal DNA database. The U.S. Department of Justice asserted that “DNA-sample collection could be essential to the detection and solution of crimes” migrants may commit on United States soil. But both civil rights and personal privacy organizations oppose DNA collection from detainees.
• The U.S. Food and Drug Administration (FDA) announced new model standards for state inspections of animal feed. FDA maintained that these standards were voluntary, but federal funds would only be available to states seeking to implement these standards. The standards involve the training, inspecting, assessing, and approving of animal feed.
• The U.S. Court of Appeals for the Second Circuit refused to lift its injunction against a rule that would deny green cards to immigrants who received welfare. In the original injunction, Judge George Daniels held that a rule which would make immigrants ineligible for legal permanent residency if they received any welfare was “repugnant to the American Dream of the opportunity for prosperity and success through hard work and upward mobility.”
• The U.S. Court of Appeals for the Fourth Circuit vacated a key air quality permit for a planned compressor station on the Dominion Energy-owned Atlantic Coast Pipeline. The court found that the permitting agency “failed in its statutory duty to determine the character and degree of injury to the health of the Union Hill residents, and the suitability of the activity to the area.” Jon Mueller, vice president for litigation of the Chesapeake Bay Foundation, called the decision “a major step forward for meaningful environmental justice.” Dominion Energy reportedly stated that it plans to fix the issues identified by the court.
• The U.S. Court of Appeals for the Eighth Circuit ruled that a Missouri law banning advertisements for discounted alcohol violated advertisers’ right to free speech. Judge Jane Kelly rejected Missouri’s argument of a causal link between advertising and consumption, observing that there was “undisputed evidence showing that alcohol consumption actually decreased by 15% while overall alcohol advertising expenditures increased by approximately 400% over the last 30 years.”
• In advance of the 2020 federal election, Facebook banned manipulated photos and videos—so-called deep fakes—from its platform. The ban does not include parody or satire content or video “that has been edited solely to omit or change the order of words.” House Intelligence Committee chair Adam Schiff (D-Calif.) called the policy “a sensible and responsible step” but questioned “whether Facebook can effectively detect deep fakes at the speed and scale required to prevent them from going viral.”

WHAT WE’RE READING THIS WEEK

• How did the use of opioids—a legal, highly regulated drug—develop into a national public health crisis? In a forthcoming article for the Yale Law & Policy Review, Justice Mariano-Florentino Cuéllar of the Supreme Court of California and Keith Humphreys of the Stanford University School of Medicine argued that the complex institutional dynamics of the U.S. pharmaceutical industry led to a system of “diluted regulatory governance” under which drug companies could legally profit from the sale and use of addictive opioids. To be effective, they concluded, any policy reform must account for the institutional realities and political and economic pressures that allowed the crisis to develop in the first place.
• Effective regulation of consumer prices could make consumer law an alternative to tax as a wealth redistribution tool, argued Rory Van Loo of the Boston University School of Law in a new article in the Notre Dame Law Review. Van Loo wrote that consumer law—comprising both consumer protection and antitrust or pro-competition law—is often overlooked by policymakers as less efficient at economic redistribution than tax law. In light of growing profit margins and inequalities, Van Loo concluded, market regulation via consumer law could better satisfy the state’s goal of redistribution.
• Ana Parras, a co-executive director of Texas Environmental Justice Advocacy Services, described in an op-ed for The New York Times how the regulatory rollbacks of EPA’s chemical disaster rules put communities at greater risk. According to Parras, the EPA’s revised rule “eviscerates the Obama-era requirements” by rescinding accident prevention provisions, such as considering safer technology or having outside parties audit accidents.

FLASHBACK FRIDAY

• In a 2014 essay for The Regulatory Review, Timothy Lytton of the Georgia State University College of Law argued that private certification has advantages over government regulation for maintaining quality control of consumer products. Although Lytton acknowledged that private certification occasionally faces reliability concerns, he indicated that it also harnesses greater technical expertise, reflects better monitoring and inspection coverage, and is more efficient than government regulation. Lytton concluded that regulatory design should consider both private certification and government regulation as potential quality control solutions and should integrate both methods to achieve the most efficient and reliable result.