Week in Review

IN THE NEWS

• The Centers for Disease Control and Prevention (CDC) issued a health advisory urging individuals who are pregnant or trying to become pregnant to vaccinate themselves against COVID-19. The CDC explained that the benefits of COVID-19 vaccination for pregnant people outweigh possible risks. Vaccination rates for pregnant individuals remain low, and the CDC warns that pregnant individuals with COVID-19 have a higher tendency to become severely ill and are at risk for pregnancy complications. The CDC recommended that public health jurisdictions and healthcare providers increase vaccination efforts for pregnant individuals and increase outreach efforts. CDC Director Rochelle P. Walensky noted that pregnant individuals should talk with their healthcare providers about “the protective benefits of the COVID-19 vaccine to keep their babies and themselves safe.”
• The U.S. Department of Homeland Security (DHS) issued a proposed rule that would “preserve and fortify” the Deferred Action for Childhood Arrivals (DACA) policy. The proposed rule follows a Texas federal court order that prevents DHS from granting new DACA requests, but allows renewals. The Biden Administration appealed the ruling, which will not be impacted by the new rule. Marielena Hincapié, executive director of the National Immigration Law Center, explained that the new rule does not substantially change the original DACA policy, but rather is an attempt to “write things out in more detail” in response to the Texas court order. DHS Secretary Alejandro Mayorkas called the proposed rule “an important step” toward protecting DACA recipients by reinforcing their status as individuals who are “not a priority for removal.” Secretary Mayorkas also noted that “only Congress can provide permanent protection” through immigration reform.
• A district court in Arizona temporarily blocked a portion of the state’s new abortion law that would have made it illegal for doctors to perform abortions in cases where the fetus has a genetic abnormality. The judge held that the provision was “unconstitutionally vague” because Arizona’s law did not clarify what qualifies as a genetic abnormality or how much knowledge doctors would need about their patient’s motivations to be held criminally liable. Attorney at the Center for Reproductive Rights, Emily Nestler, expressed relief that the court temporary blocked the provision and stated that “people should not be interrogated about their reasons for seeking an abortion.”
• The U.S. Department of the Interior issued a notice that it will review potential environmental impacts of two wind projects proposed to be built off of New Jersey’s shore. The Interior Department projected that just one of the projects would generate power for over 700,000 homes and create over 22,290 jobs over the course of its lifecycle. Interior Department Secretary Deb Haaland noted the “enormous potential” that offshore wind holds for the United States and stated that “the Interior Department is moving rapidly to develop a clean energy future with good-paying union jobs.”
• The Biden Administration withdrew a Trump-era rule that would have decreased royalty payments from corporations that lease federal land for oil and gas production. The rule also sought to revalue coal produced on federal and Native American land and reassess civil penalties for lease violations. The federal government predicts that royalties would have decreased by $64 million per year had the rule gone into effect. U.S. Department of the Interior Secretary, Deb Haaland, stated that withdrawing the rule will help “American taxpayers receive fair returns for the oil and natural gas produced on federal lands.”
• The U.S. Fish and Wildlife Service (FWS) revoked a Trump-era rule that reduced the government’s ability to prosecute companies that killed federally protected migratory birds. The FWS also announced plans to create a permitting process for the incidental killing of migratory birds for industry or private reasons, a regulatory protection the Trump-era rule lacked. Interior Department Assistant Secretary for Fish and Wildlife and Parks, Shannon Estenoz, explained that the FWS will be creating future regulations “to both conserve birds and provide regulatory certainty to industry and stakeholders.”
• China’s State Council released plans aimed at affecting the lives of women and children in the country. The plans included provisions such as reducing the amount of abortions performed that the government has determined not medically necessary, preventing unwanted pregnancies, and increasing women’s access to birth control. Other provisions sought to fight against gender discrimination in the workplace. Yi Fuxian, scientist at the University of Wisconsin-Madison, stated that “although China will regulate abortion, it will not be as strict as it is now in the United States.”
• The Financial Crimes Enforcement Network (FinCEN) issued an advance notice of proposed rulemaking seeking public comment on anti-money laundering regulations for antiquities dealers. The Anti-Money Laundering (AML) Act of 2020 amended the Bank Secrecy Act and added certain persons “engaged in the trade of antiquities” to the definition of “financial institution,” which would subject them to anti-money laundering regulations. The Secretary of the U.S. Department of Treasury tasked FinCEN to create rules carrying out the amendment. Acting Director of FinCEN Himamauli Das called on the antiquities industry to provide feedback on the advanced notice of proposed rulemaking saying that FinCEN’s effort shows its “continued commitment to implement the AML Act.”

WHAT WE’RE READING THIS WEEK

• In an article in the Vanderbilt Law Review, Monika U. Ehrman, law professor at University of North Texas at Dallas, argued that energy law should reimagine electricity regulations in the United States to meet electrical demands and combat climate change. Ehrman agreed with Joshua Macey, professor at the University of Chicago Law School, that traditional energy utilities should not be able to recover for energy generation losses as currently permitted. Ehrman argued that renewable energy companies are being shut out of the energy market because current rules do not let renewable energy companies compete with traditional energy providers. Ehrman also agreed with Macey that regulators should not require new energy companies to receive a certificate to conduct business. Ehrman contested that removing these barriers will allow more renewable energy into the energy grid system.
• In a paper in the Yale Law Journal Forum, Kyle Langvardt and James Fallows Tierney, professors at the University of Nebraska College of Law, discuss gamification and securities regulation. Langvardt and Fallows Tierney argued that gamification, defined as “behavioral prompts and flashy casino-like design elements that encourage trading,” should not be regulated through rules on software design because they could potentially raise constitutional issues, such as First Amendment challenges. Langvardt and Fallows Tierney concluded that regulators should leverage existing regulatory policies that do not relate specifically to technology when considering how to regulate gamification.
• ​​In a recent working paper, Matthew Collin, economist at the Brookings Institution, and his coauthors reported the results of a study that surveyed the impact of text message campaigns on property tax compliance in Tanzania. Collin and his team divided individuals who had yet to pay property taxes into four groups and sent three groups different types of reminder text messages—a simple reminder, a message that showed the link between tax revenue and public services, and a message that emphasized the social pressure of noncompliance—with the fourth group serving as a control. The authors found that all text campaigns resulted in increased tax payments and concluded that text message reminders are a low-cost and useful government tool to encourage compliance with revenue-raising regulations.

FLASHBACK FRIDAY

• In an essay in The Regulatory Review, Michael Nonaka, partner at Covington & Burling LLP, argued that FinCEN is positioned to be “one of the most influential federal government agencies” for regulating innovation in the financial services industry due to its broad mandate over financial institutions. Nonaka discussed the agency’s history and authority, including its responsibilities related to anti-money laundering compliance. Nonaka noted the agency’s “unique and direct role” related to cryptocurrency and digital asset regulation.