Week in Review

IN THE NEWS

• The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced an emergency standard requiring companies with 100 or more employees to implement mandatory COVID-19 vaccination policies. The standard follows the plan initially announced by President Joseph R. Biden in September. OSHA’s standard requires employers to give paid time off for vaccinations, maintain record of vaccination status for employees, implement protocols for when employees test positive for COVID-19, and ensure unvaccinated employees wear masks and undergo weekly COVID-19 testing. OSHA’s standard does not, however, require employers to pay for the testing. OSHA Deputy Assistant Secretary of Labor Jim Frederick said the standard would “protect all workers, including those who remain unvaccinated.”
• The U.S. Food and Drug Administration (FDA) granted emergency use authorization for the Pfizer COVID-19 vaccine for children aged 5 through 11 years old—the first vaccine to be authorized for this age group. FDA decided to authorize pediatric COVID-19 vaccination after reviewing and evaluating a study of the vaccine in 3,100 children, which demonstrated the vaccine’s effectiveness and safety. FDA reported that the Pfizer vaccine prevented COVID-19 in children aged 5 to 11 in 90.7 percent of cases in the study. In addition, FDA reported that no serious side effects were detected in the children who received the Pfizer vaccine. Acting FDA Commissioner Janet Woodcock stated that the study’s data “should help assure parents and guardians that this vaccine meets FDA’s high standards.” Following FDA’s emergency authorization, the CDC recommended the Pfizer COVID-19 vaccine for 5-to-11 year olds.
• Secretary of the U.S. Department of Homeland Security Alejandro Mayorkas, issued a memorandum rescinding the Trump Administration’s Migrant Protection Protocols, also known as the “Remain in Mexico” program. Mayorkas also provided an explanation for the Biden Administration’s decision to rescind the program again after a federal court decision required them to reinstate the Trump-era program. In announcing the decision, Mayorkas argued that the “Remain in Mexico” policy fails to deal with the “root causes of irregular migration” and “undercuts” the Biden Administration’s ability to make “critically needed” changes to the nation’s immigration policies.
• The U.S. Supreme Court agreed to review the U.S. Environmental Protection Agency’s (EPA) authority to regulate greenhouse gases. The North American Coal Corporation, one of the parties bringing suit against EPA, urged the Court to resolve whether the U.S. Congress or EPA has the authority to determine how industry-wide practices address climate change, such as rules that govern power plants. The Biden Administration previously asked the Supreme Court to decline reviewing this “premature” case until the Administration could update its climate-related regulations. Because this lawsuit considers the extent of a regulatory agency’s power, petitioners emphasize that the outcome of this case may implicate the authority of any government agency to impose rules.
• The Biden Administration announced a new plan to reduce methane emissions from the oil and gas industry. In support of the new plan, and President Biden’s earlier executive order on the climate crisis, EPA created new requirements for monitoring and detecting methane leaks at new and updated oil and gas sites. EPA’s plan also instructed states to create rules and standards for existing oil and gas wells. EPA estimates that the proposed regulations “would reduce 41 million tons of methane emissions from 2023 to 2035,” which is “more than the amount of carbon dioxide emitted from all U.S. passenger cars and commercial aircraft in 2019.” As an additional part of the Biden Administration’s plan, the U.S. Department of Transportation will issue new pipeline rules to reduce methane emissions.
• The Bureau of Land Management (BLM) announced new analyses of greenhouse gas emissions for oil and gas lease sales that will take place in 2022. The BLM declared that it will “consider the social cost of greenhouse gases” for the first time when preparing environmental assessments of proposed leases on federally-owned lands for oil and gas development. The assessments will be used as part of the process of soliciting public feedback on the proposed lease locations. The BLM’s actions follow the Biden Administration’s earlier executive orders on protecting public health by addressing the climate crisis and tackling the climate crisis domestically and internationally.
• The Cybersecurity and Infrastructure Security Agency directed federal agencies to remedy cybersecurity vulnerabilities. The directive establishes a catalog of vulnerable areas within federal agency networks that have been exploited by malicious actors and requires agencies to fix previously identified issues within two weeks or six months, depending on the severity of the vulnerability. Cybersecurity and Infrastructure Agency director Jen Easterly said that the directive enables agencies “to improve their vulnerability management practices and dramatically reduce their exposure to cyber attacks.”
• A working group led by the U.S. Department of the Treasury released a report recommending that Congress act quickly to regulate stablecoins, which are digital assets that maintain a stable value relative to a national currency such as the U.S. dollar. The group found that stablecoins are being used with more frequency and can pose risks to the economy if their value becomes unstable or if their payment system loses efficiency. The group recommended that Congress require stablecoin issuers to be regulated as insured depository institutions that would be subject to oversight and backed by Federal Reserve services, oversee providers of digital wallets, and implement restrictions on activity between stablecoin issuers and commercial entities.

WHAT WE’RE READING THIS WEEK

• In an article in the Yale Journal on Regulation Online Bulletin, Geoffrey Heeren, professor at the University of Idaho College of Law, argued that the Immigration and Nationality Act authorizes the federal government to grant employment authorization for Deferred Action for Childhood Arrivals (DACA) recipients. Heeren explained that the Immigration and Nationality Act identifies deferred action programs, such as DACA, as authorized for employment. Accordingly, Heeran argued that federal courts in Texas were wrong to restrict employment authorization for DACA recipients for the purpose of deterring undocumented immigration. Heeran concluded that there is “little justification” for withholding employment authorization from DACA recipients and doing so is “antithetical to the founders who believed in a natural right to work to feed oneself and support one’s family.”
• In an article, Tara Righetti, professor at the University of Wyoming College of Law, and her coauthors proposed several policy and regulatory changes to increase the way carbon is captured and stored on U.S. federal lands. Righetti and her coauthors discussed the need for carbon capture, utilization, and storage capacity to limit the worst impacts of climate change. Righetti and her coauthors suggested that a lack of clarity surrounding the requirements for using subterranean space for carbon storage on federal lands has contributed to the nation not living up to its carbon storage potential. Righetti and her coauthors recommended a number of solutions, such as federal legislation to determine the agencies that should govern this area.
• In an essay in the Minnesota Law Review, Bridget C.E. Dooling and Laura Stanley of the George Washington University Regulatory Studies Center argued that the U.S. Drug Enforcement Agency and the Substance Abuse and Mental Health Services Administration have the regulatory ability to extend flexible practices for treating opioid use disorder, which were initially implemented as a response to the COVID-19 pandemic. To achieve this, Dooling and Stanley recommended that the agencies issue joint regulations extending telemedicine prescriptions and treatment options and codify the ability of patients to participate in take-home treatment options. Dooling and Stanley proposed that in the alternative, the agencies could extend flexibilities under the U.S. Department of Health and Human Services’s opioid-specific public health emergency.

FLASHBACK FRIDAY

• In an essay in The Regulatory Review, Shelly Welton, professor at the University of South Carolina School of Law, posited that the Federal Energy Regulatory Commission (FERC) faces challenges in creating an effective Office of Public Participation, but their success will significantly impact society because it will allow for public input on energy projects. Moreover, Welton noted that FERC can better engage the public by researching the public’s past participation in agency rulemaking processes. For example, Welton suggested that the Office of Public Participation hire grassroots-engagement trained field staff to build relationships with communities that are underrepresented at FERC. In addition, Welton insisted that FERC must follow through on its commitments to enact reform based on public participation. Welton concluded that FERC’s Office of Public Participation should center the public’s “powerful visions for a cleaner, more distributed, and more just energy system.”