Week in Review

IN THE NEWS

• The U.S. Court of Appeals for the Fifth Circuit issued an order temporarily blocking the recent standard released by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) that required companies with 100 or more employees to implement COVID-19 vaccination policies. Eleven states had previously filed lawsuits against OSHA’s standard. In blocking the standard, the court reasoned that there were “statutory and constitutional issues” with the vaccine mandate. The U.S. Department of Justice filed a response to the court’s decision, arguing that OSHA was within its rights to issue the standard because it was “necessary to address a grave danger.”
• A coalition of 30 countries, several automakers and automotive fleet owners and operators, and numerous city, state, and regional governments committed to accelerating the adoption of 100 percent zero-emissions cars within each jurisdiction or organization by 2040. Four of the top five car-producing countries in the world—China, the United States, Japan, and Germany—did not sign the agreement, although California, New York, and Washington state agreed to participate. Although the agreement is non-binding, Steven van Weyenberg, Minister for the Environment of the Netherlands, emphasized the importance of decarbonizing the transportation sector and called on other countries to join “as soon as possible.”
• A European court fined Google with a 2.4 billion euro penalty, holding that Google’s promotion of its own shopping marketplace over its competitors—such as Amazon and eBay—was anti-competitive. The judgment upheld the European Commission’s 2017 finding that Google had violated antitrust laws. The Commission praised the ruling, stating that it “will continue to use all tools at its disposal to address the role of big digital platforms.” Google may still appeal the decision.
• The U.S. Congress voted 228-206 in favor of passing a $1.2 trillion infrastructure bill. The bill includes measures such as improving the resiliency of the U.S. electric grid, creating charging infrastructure for electric vehicles, making safer public water systems, and increasing access to high-speed internet for people across the country. President Joseph R. Biden called the “monumental” infrastructure bill a “once-in-a-generation investment.” The White House announced that President Biden will sign the bill into law on November 15.
• The Department of Homeland Security (DHS) will help settle Afghans paroled in the United States for humanitarian reasons by waiving fees associated with document processing and streamlining application processing for permanent resident cards and work authorization, among other things. Afghans may also apply for asylum. DHS Secretary Alejandro Mayorkas stated that DHS’s actions illustrate its “ongoing commitment to Afghan nationals who provided valuable assistance to the United States over the past two decades.”
• A Texas federal court ruled that Texas Governor Greg Abbot’s executive order, which prevented school districts from mandating masks in schools, was invalid, as it violated the Americans with Disabilities Act. Seven students with disabilities explained that they are at increased risk of contracting and suffering acute symptoms from COVID-19. The court determined that Abbot’s executive order denied students with disabilities “equal opportunity to participate in in-person learning with their non-disabled peers,” unlawfully discriminating against people with disabilities. Attorney with Disability Rights Texas, Kym Davis Rogers, praised the decision, stating that “no student should be forced to make the choice of forfeiting their education or risking their health.”
• The U.S. Securities and Exchange Commission approved the Public Company Accounting Oversight Board’s Rule 6100. Rule 6100 creates a framework for the Public Company Accounting Oversight Board to evaluate whether foreign jurisdictions allow it to adequately inspect registered public accounting firms. The rule was proposed earlier this year to implement a requirement from the Holding Foreign Companies Accountable Act. Under the Act, stock is banned from trading if the issuing company’s auditors are located in a jurisdiction that the board—which is required to inspect registered accounting firms under the Sarbanes Oxley Act—cannot inspect completely for three consecutive years. U.S. Securities and Exchange Commission Acting Chief Accountant Paul Munter praised Rule 6100 as a step that will enable investors to “draw the same level of confidence from the quality of the audits of all issuers no matter where their registered public accounting firm is located.”
• The U.S. Fish and Wildlife Service proposed a rule designating the Egyptian Tortoise as a threatened species under the Endangered Species Act. Egyptian Tortoises are found in certain areas of Libya, Egypt, and Israel and are the “smallest and least-known tortoise species inhabiting the Mediterranean basin.” The proposed rule would prohibit the import, export, and sale, among other things, of the Egyptian Tortoise by people subject to U.S. jurisdiction. Under the Endangered Species Act, the U.S. Fish and Wildlife Service can include foreign species on the list of endangered and threatened species. Such a listing can create conservation benefits in addition to the regulations prohibiting commercial activities related to the species.

WHAT WE’RE READING THIS WEEK

• In a working paper, Mason Marks, professor at University of New Hampshire Franklin Pierce School of Law, and I. Glenn Cohen, professor at Harvard Law School, warned of potential drawbacks to issuing patents for psychedelics—drugs that were largely outlawed but now studied and used in treatments for mental illnesses. Marks and Cohen argued that patenting psychedelics could stunt research and development by giving patent holders exclusive rights, and the U.S. Patent and Trademark Office may readily approve undesirable psychedelic patents because patent issuers lack sufficient expertise in psychedelics. Marks and Cohen also contended that patenting the natural compounds in psychedelics will deprive Indigenous communities of compensation and acknowledgement for their historical use of psychedelics in cultural practices and treatment. Marks and Cohen proposed numerous solutions, such as requiring a higher standard of uniqueness in granting psychedelic patents, limiting the enforcement of psychedelic patents, or outright prohibiting patents on psychedelics.
• In a report issued by Climate Action Tracker, the organization found that current global policies aimed at limiting the increase of the earth’s temperature will fail to meet the goal of a 1.5 degree decrease in temperature by the end of the century. Climate Action Tracker estimated that the 2030 emission reduction targets would collectively achieve a 2.4 degree Celsius increase by 2100. The organization argued that all countries must eliminate the use of coal power by 2040 and that developed countries should be coal-free by 2030. Climate Action Tracker emphasized that switching from coal to natural gas is not “compatible” with global climate reduction agreements to lower carbon emissions by 1.5 degrees. In addition, the organization suggested that countries back up their carbon reduction goals with more “robust legislations and detailed plans.”
• In a working paper, Steven Salop, professor at the Georgetown University Law Center, and several coauthors discussed the impacts of Ohio v. American Express, a 2018 U.S. Supreme Court antitrust decision. Salop and his coauthors examined the “substantial analytical errors” in the case, argued for an alternative framework for analyzing similar antitrust cases, and then applied the alternative approach to the facts of the American Express case. Salop and his coauthors concluded by offering possible courses of action for different actors, such as overruling the case or amending the Sherman Act.

FLASHBACK FRIDAY

• In an essay in The Regulatory Review, graduate student Inhwan Ko and professors Nives Dolšak and Aseem Prakash of the University of Washington discussed the issues related to net-zero emission pledges. Ko, Dolšak, and Prakash questioned the efficacy of net-zero emission pledges, highlighting that pledges are not binding unless they are implemented through legislation. Ko, Dolšak, and Prakash noted the existing uncertainty around monitoring compliance with previous emissions pledges, as well as challenges linked to a lack of sanctions for unmet targets.