Week in Review

IN THE NEWS

• A federal court in Texas ruled that the Deferred Action for Childhood Arrivals (DACA) program is illegal. The court held that the U.S. Department of Homeland Security (DHS) violated the Administrative Procedure Act (APA) when it created the DACA program without undergoing a notice-and-comment period. The court ordered that, although DHS may continue accepting DACA applications, the agency may not approve new applicants. The court acknowledged that “hundreds of thousands” of immigrants “have relied upon this program for almost a decade” and that current DACA recipients would not lose their benefits under the court’s ruling. President Joseph R. Biden announced that the U.S. Department of Justice plans to appeal the decision but that “only Congress can ensure a permanent solution by granting a path to citizenship” for DACA recipients.
• The White House issued a memorandum under its Justice40 Initiative, an effort to ensure that “40 percent of the overall benefits” from federal climate and clean energy investments reach communities that have been historically marginalized and disadvantaged by pollution. The White House’s memorandum identified 21 initial programs that will maximize benefits for disadvantaged communities, including the U.S. Department of Agriculture’s Rural Energy for America Program and DHS’s Flood Mitigation Assistance Program. In the memo, the White House also directed agencies to identify additional programs that fall under the initiative, such as those that make investment benefits related to climate change, clean energy, affordable and sustainable housing, and clean water.
• A federal court temporarily blocked an Arkansas law that would ban gender-affirming treatment for transgender youth and prohibit people under 18 from accessing puberty blockers or cross-hormone therapy. In May, the American Civil Liberties Union (ACLU) challenged the Arkansas law, which was previously set to go into effect on July 28. Arkansas Attorney General Leslie Rutledge stated that she would appeal the decision and vigorously defend the law. Holly Dickinson, executive director of the ACLU of Arkansas, said that “gender-affirming care is life-saving care” and that the ACLU would not allow politicians to take that care away.
• DHS directed major pipeline companies to implement safety measures to defend against cyber attacks. The directive requires pipeline companies to develop procedures to respond to known security breaches and review existing cybersecurity infrastructure. The directive builds on one released earlier this year following the shutdown of the Colonial Pipeline due to a cyber attack. The previous directive required pipeline companies to report cybersecurity threats, audit cybersecurity practices and shortcomings, and elect a cybersecurity coordinator. U.S. Secretary of Homeland Security Alejandro Mayorkas commented that the new directive can better protect pipeline companies from cyber threats, and he assured that DHS will continue its work with “private sector partners to support their operations and increase their cybersecurity resilience.”
• The U.S. Patent and Trademark Office updated its guidance related to the recent United States v. Arthrex decision. In Arthrex, the U.S. Supreme Court ruled that the director of the Patent Office must be able to review decisions issued by the Patent Trial and Appeal Board. The new guidance describes how the agency will review requests for director review and the possible criteria for assessing whether a decision should be reviewed. The guidance also clarified that parties will not be able to “make new arguments or submit new evidence” with their requests for director review.
• The Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, and the Federal Deposit Insurance Corporation proposed interagency guidance for managing risks related to third-party relationships at banking organizations. The guidance addressed relationships that banks establish with outside parties, such as those to provide mobile payment services and access to credit scoring systems. The agencies requested feedback on the proposed guidance, which harmonized guidance from the three regulators and would replace each of their existing guidance documents.
• The U.S. Court of Appeals for the Eleventh Circuit temporarily reinstated the Centers for Disease Prevention and Control’s (CDC) COVID-19 restrictions on cruise ship operators after a Florida federal trial court invalidated the restrictions. The appellate court’s temporary reinstatement will remain in effect until the court hears appeals arguments about the validity of the CDC cruise restrictions. Florida Governor Ron DeSantis’s press secretary, Christina Pushaw, stated that the governor remains “confident in eventual success on the actual merits of this litigation.”
• The U.S. Department of Energy proposed a new rule for showerhead water flow to roll back increased flow amounts introduced by the Trump Administration. The new rule would return the limits to the standard set during the Obama Administration. The department anticipated that the impact will be minimal because most showerheads already meet the Obama Administration’s standard. Kelly Speakes-Backman, Principal Deputy Assistant Secretary for the Office of Energy Efficiency and Renewable Energy, stated that the proposal was simply “commonsense” in the face of historic droughts affecting certain regions of the United States.

WHAT WE’RE READING THIS WEEK

• In an article for the American Economic Journal: Economic Policy, Kenneth Gillingham, professor at Yale School of the Environment, Sébastien Houde, professor at Grenoble Ecole de Management, and Arthur van Benthem, professor at the Wharton School of the University of Pennsylvania argued that fuel-economy standards are the most-used policy to reduce carbon emissions in the U.S. transportation sector, yet consumers are often nearsighted when evaluating these standards. Gillingham, Houde, and van Benthem proposed that consumers undervalue future fuel savings when purchasing new vehicles and thus often do not purchase energy-efficient investments that have high economic returns, such as cars with high fuel-economy ratings and lower fuel costs. Gillingham, Houde, and van Benthem suggested that such undervaluation may come from consumer inattention, a lack of awareness of fuel standards, or biases in purchasing decisions. They concluded that their behavioral research may be applicable to other consumer purchases with delayed benefits, such as solar panels, energy-efficient upgrades, and health care plans.
• In a recent Brookings Institution report, Johannes Urpelainen, professor at the Johns Hopkins School of Advanced International Study, and Elisha George argued that the United States should lead efforts to reform fossil fuel subsidy programs at the domestic and international level. Urpelainen and George suggested that the United States create a group with members of the G20—a collective of nations focusing on global economy—to create “peer review processes, knowledge sharing, and transparent reporting initiatives” for fossil fuel subsidy monitoring. Urpelainen and George also recommended that countries in the Paris Agreement on Climate Change apply domestic fossil fuel subsidy reforms toward their greenhouse gas emissions goals. They advised that the United States offer technical, legal, and financial assistance to less developed countries to implement fossil fuel phase-out programs. Urpelainen and George predicted that if the United States shifts away from fossil fuels, other countries will follow suit.
• In an essay for the Georgetown Law Journal Online, Nina Kohn, professor at Syracuse University College of Law, argued that the high fatality rates at nursing homes during the COVID-19 pandemic were the result of policy choices and foreseeable regulatory failures. Kohn challenged the “nursing-home-as-victim narrative” and highlighted Medicaid’s preferential treatment of institutional care over home-based care as a core policy failure contributing to nursing home deaths. Kohn proposed regulatory reforms, such as “pay-for-performance approaches” that tie reimbursement to quality care metrics, to better align incentives at nursing homes.

FLASHBACK FRIDAY

• In an essay in The Regulatory Review, Ming Hsu Chen, professor at the University of Colorado Boulder Law School, explained that the Supreme Court’s efforts to review administrative decisions under the Administrative Procedure Act fail to consider discriminatory intent adequately. Chen argued that the Supreme Court did not give adequate weight to racial discrimination in its administrative review of the Deferred Action for Childhood Arrivals (DACA) program and the U.S. Census Bureau’s 2020 plan, for example. Chen also argued that the Court gave little consideration to President Trump’s racial animus when reviewing the Trump Administration’s travel ban, which excluded immigrants from select majority Muslim countries. Chen warned that as long as the Court reviews the validity of administrative actions without considering an administration’s discriminatory intent, administrative actions will continue to have racially discriminatory effects.