Week in Review

IN THE NEWS

• The U.S. Food and Drug Administration (FDA) amended the authorization of COVID-19 booster shots to extend to all individuals who are 18 or older and have received their initial Moderna or Pfizer-BioNTech vaccinations at least six months prior. FDA’s amended authorization also allows boosters for those who are 18 or older and have received a Johnson & Johnson vaccine at least two months prior to receiving a booster. Discussing the authorizations, acting FDA Commissioner Janet Woodcock stated the booster shots will help “to provide continued protection against COVID-19, including the serious consequences that can occur, such as hospitalization or death.”
• The U.S. Department of Labor finalized a regulation that will increase the minimum wage for federal contractors to $15 per hour beginning on January 1, 2022. The Labor Department’s regulation also eliminated a previous exemption that allowed workers with disabilities to be paid less than minimum wage. The regulations followed President Joseph R. Biden’s executive order issued earlier this year, which directed the Secretary of Labor to raise the minimum wage to $15 by 2022 and to increase this amount each subsequent year. The Labor Department projected that over 327,000 people will see an increase in their wages.
• The Federal Communications Commission (FCC) approved a rule requiring text providers to support text messages sent to 988, the newly created 3-digit suicide prevention lifeline. Previously, the FCC established 988 as the shortcut to reach the national suicide prevention lifeline and required telecommunications providers to “make any network changes necessary to ensure that users can dial 988” by July 16, 2022. FCC Commissioner Geoffrey Starks praised the rule for making the lifeline even more accessible to certain communities, such as young people and people with disabilities.
• The U.S. House of Representatives voted 220-213 to pass President Biden’s Build Back Better bill and sent the bill to the U.S. Senate. If passed by the Senate, the bill would fund $555 billion to combat climate change, provide pre-kindergarten for all, and increase the availability of affordable housing, among other measures. The bill would also increase taxes on “high income individuals” and create a 15 percent tax on corporations that exceed $1 billion in profits per year. Discussing the upcoming Senate vote and the need to work with centrist Democrats such as U.S. Senators Joe Manchin (D-W. Va.) and Kyrsten Sinema (D-Ariz.), Senate Majority Leader Chuck Schumer (D-N.Y.) reportedly stated that he and other Democrats are “going to try to negotiate with them and get a very strong, bold bill out of the Senate which will then go back to the House and pass.”
• The Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, and the Federal Deposit Insurance Corporation issued a final rule requiring banks to notify regulators about computer-security incidents, such as a violation of “security procedures.” The rule requires banks to alert their primary regulator within 36 hours of a significant computer-security incident. Under the new rule banks also must notify customers immediately following any computer-security incident that is anticipated to last for a minimum of four hours.
• The U.S. Supreme Court dismissed a lawsuit filed by Mississippi alleging that the groundwater pumping of the City of Memphis, Tennessee has altered groundwater flow in an aquifer that sits beneath both Mississippi and Tennessee. Mississippi contended that the altered groundwater flow is causing billions of gallons of water to flow into Tennessee state lines that otherwise would have remained inside Mississippi state lines. Despite Mississippi’s insistence that it rightfully owned the water beneath its state borders, the Court held that the aquifer is an interstate waterbody and Mississippi must seek a remedy for “fair allocation” of the shared water resource. This case establishes that a multistate underground aquifer must be fairly allocated rather than each state having legal ownership over the water within its borders.
• The U.S. Department of Justice filed an antitrust suit to block United States Sugar Corporation from acquiring Imperial Sugar Company. The two firms operate in an “already cozy sugar industry” in the southeast of the United States. The Justice Department alleged that the acquisition would reduce competition, resulting in more expensive refined sugar. As a primary ingredient in many foods and beverages, increased prices of refined sugar could harm both U.S. consumers and businesses.
• An appeals court upheld a county judge’s local mask mandate in Dallas, Texas despite Governor Greg Abbott’s insistence that he has authority to ban mask requirements statewide. The court determined that, although Texas law does grant the governor emergency powers during a disaster such as the COVID-19 pandemic, the law does not grant the governor that power to act “as the commander in chief of individual counties in Texas.” Judge Clay Jenkins—the Dallas county judge who implemented the mask mandate—praised the court’s opinion, reportedly stating society should “follow the science wherever it leads.”

WHAT WE’RE READING THIS WEEK

• In a report issued by the U.S. Environmental Protection Agency (EPA), EPA outlined its strategy for the next three years to hold polluters accountable for releasing “forever chemicals” known as per- and poly-fluoroalkyl substances (PFAS) into the environment. EPA explained that PFAS, which are used in industrial production and consumer products such as clothing and furniture, can be released into groundwater, soil, and the air to harm humans and the environment. To combat PFAS, EPA highlighted that it will invest in research to understand better the chemical, prevent PFAS from being emitted by using “all available statutory authorities,” and increase the speed and availability of cleanup measures. Because disadvantaged and low-income communities often live near sources that emit PFAS, EPA noted that it will prioritize input and engagement from these communities when making decisions about these chemicals.
• In an article in the Harvard Law Review Forum, Sara Bronin, professor at Cornell University College of Architecture, Art, and Planning, and Gregory Shill, professor at the University of Iowa College of Law, discussed the impact of the Manual on Uniform Traffic Control Devices for Streets and Highways on transportation. Bronin and Shill explained how the manual contains policies that effectively promote fast driving because they measure, and seek to maximize, road effectiveness by the number of vehicles passing through an intersection. Bronin and Shill highlighted the effect that policies promoting fast driving have on non-drivers, which represent almost one-third of Americans, and on greenhouse gas emissions. Bronin and Shill proposed changes to the manual, including altering the way speed limits are typically set.
• In a paper, Arden Rowell, professor at the University of Illinois College of Law, argued that cost-benefit analysis—a method by which agencies weigh the positive and negative impacts of a rule—is not merely a technical analysis, but one that imports ethical value judgments as well. Rowell explained that, although cost-benefit analysis may try to measure only the monetary impacts of a rule, ethical considerations still underlie how agencies conduct cost-benefit analysis. For example, Rowell noted that a cost-benefit analysis on a rule about the social costs of carbon dioxide would have drastically different results if the costs of climate change were weighed on a global scale instead of a domestic scale. Rowell contended that greater scrutiny from courts and creating an agency tasked with assessing ethical decisions in cost-benefit analysis may help agencies give more thought to their ethical value judgments in cost-benefit analysis.

FLASHBACK FRIDAY

• In an essay in The Regulatory Review, Michael M. Oswalt, professor at Northern Illinois University College of Law, and César Rosado-Marzán, professor at the University of Iowa College of Law, argued that collaborative efforts to increase labor wages must be supported by laws and support systems for government officials that negotiate labor wages. Oswalt and Rosado-Marzán noted that efforts in Chicago, for example, do not adequately involve management. Moreover, Oswalt and Rosado-Marzán explained that collaborative efforts to raise labor wages depend on established relationships, which can disappear when a public official leaves their post. Oswalt and Rosado-Marzán concluded that they are “optimistic,” and collaborative efforts to raise wages can be successful if public officials are given adequate support.