Week in Review

IN THE NEWS

• A federal district court blocked President Joseph R. Biden’s order that required federal agencies to consider the social cost and “global damages” of greenhouse gas emissions. The court reasoned that environmental statutes, such as the Clean Air Act, only allow agencies to consider the impacts of greenhouse gas emissions in the United States, not globally. The court also explained that President Biden lacked authority to issue the order without supporting legislation because the impact of the mandate is too broad. Moreover, the court held that the Biden Administration did not follow appropriate procedure under the Administrative Procedure Act in creating the order and that the order was not reasonable.
• Another federal district court allowed the U.S. Environmental Protection Agency (EPA) to revise a Trump-era rule that exempted large agricultural operations from disclosing their toxic air emissions. Several nonprofits sued EPA for maintaining the rule, arguing it violated the Emergency Planning and Community Right-to-Know Act. The court granted EPA’s request to revise the rule in accordance with President Biden’s executive order “to improve public health and protect our environment.” The nonprofits still contested that EPA’s revision of the rule could be lengthy and would continue to deprive communities of important toxic air emissions information. But the court responded that returning the rule to EPA for revision would not “unduly prejudice” the nonprofits, and they could collaborate with EPA to revise the rule.
• The Bureau of Indian Affairs, an agency within the U.S. Department of the Interior, announced changes to its correctional programs. Currently, the agency funds 96 correctional programs. The Bureau designed the reforms to “protect the rights, dignity and safety of those who are in custody.” These changes followed reports of poor treatment of incarcerated individuals in the correctional programs and a third-party report covering the conditions of detention facilities.
• The U.S. Department of Homeland Security (DHS) revised its guidance on the treatment of informal marriages of refugees. These marriages, which occur in refugee camps, have historically been recognized in refugee applications because couples often cannot return to their country of origin to marry and the country they fled to may deny access to marriage. Under the Trump Administration, DHS stopped recognizing these informal marriages. This new guidance reverses that policy, again allowing DHS to recognize informal marriages for immigration purposes.
• The Wisconsin Supreme Court ruled that voters cannot use ballot drop boxes in the state’s April elections. In a lawsuit, plaintiffs claimed that the Wisconsin Elections Commission had incorrectly interpreted state election laws when it allowed voters to drop off their absentee ballots at drop boxes. A lower court previously permitted the drop box policy to remain in place while the case was pending appeal. That permission expired this week, and the Wisconsin Supreme Court denied a request to extend it until the April elections. In dissent, Judge Ann Walsh Brady said “the majority upends the status quo in a maneuver that necessarily brings with it confusion, harm, and uncertainty.”
• The Federal Communications Commission released an order to increase competition among internet providers for renters. The rules contained in the order, expected to take effect later this year, will ban broadband providers from entering agreements with building owners to keep competitors from serving their buildings. The rules will also require providers to inform renters, using “easy-to-understand language,” of any existing exclusivity agreements in their building.
• The U.S. Consumer Product Safety Commission issued a final rule creating new safety requirements for crib mattresses. The final rule includes revised safety warning specifications, and addresses design-related risks, such as “lacerations from coil springs and excessively soft mattresses.” Commissioner of the U.S. Consumer Product Safety Commission Richard Trumka praised the rule for protecting babies and closing a “long-standing gap in safety standards for baby products.”
• The U.S. Fish and Wildlife Service proposed listing the prostrate milkweed as an endangered plant species and designating as “critical habitat” 691 acres of land in Texas along the border with Mexico. The rare plant supports bees, wasps, and monarch butterflies, but has been threatened by competition from other species and human activity, such as energy development. The listing aims to protect and raise awareness about the prostrate milkweed—which has only 24 populations remaining.

WHAT WE’RE READING THIS WEEK

• In an article in the UCLA Journal of Environmental Law and Policy, James R. May and Erin Daly, professors at Delaware Law School, argued that the judiciary should recognize a constitutional right to a stable climate. May and Daly argued that courts can rule on complex environmental rights, and they should not defer decisions about climate change to the executive branch or the legislature. May and Daly also contended that historically, courts have protected natural resources—such as water bodies and air quality—and that a stable climate is “essential to ordered liberty,” which the U.S. Constitution seeks to protect. May and Daly maintained that the judiciary does not need to create its own climate change policies. Rather, it should instruct the government to create an emission-reduction plan and monitor whether that plan meets a constitutional right to a stable climate.
• In an article in the Yale Journal on Regulation, Michael Klausner, professor at Stanford Law School, Michael Ohlrogge, professor at the NYU School of Law, and Emily Ruan, former research associate at Stanford Law School, discussed Special Purpose Acquisition Companies—commonly referred to as SPACs. SPACs can be used as an alternative way to take companies public as opposed to the traditional initial public offering (IPO) process. The method of taking companies public via SPACs has grown significantly in popularity over the past ten years. Klausner, Ohlrogge, and Ruan explored the costs associated with SPACs, and determined that they are higher than the cost of traditional initial public offerings. Klausner, Ohlrogge, and Ruan highlighted that SPACs “enjoy regulatory preferences over IPOs,” and proposed regulatory changes that included removing this preference.
• In a recent report, the U.S. Department of Defense warned that consolidation from company mergers in the defense industry could threaten national security. Researchers found that the number of companies the Defense Department relies on to provide materials, equipment, and weapons has shrunk in the past 30 years. This lack of competition among suppliers results in higher prices, exposure to supply-chain vulnerabilities, less innovation, and lower quality in key national defense resources and services, according to the researchers. Researchers provided five recommendations for increasing competition in the defense industry. These recommendations include working with antitrust agencies to provide greater oversight of mergers between defense companies, increasing outreach and support for small businesses, and creating contingency plans for failures in the supply chains of critical equipment such as missiles and microelectronics.

FLASHBACK FRIDAY

• In an essay in The Regulatory Review, Hannah Kass, PhD candidate at the University of Wisconsin-Madison, argued that large agricultural companies have disproportionate market power over farmers. Kass argued that the Federal Trade Commission (FTC) and U.S. Department of Justice’s Antitrust Division impermissibly allowed agricultural businesses to merge, thereby aggregating market power in only a few businesses. As a result, Kass noted, farmers have suffered economically. For example, the meat packing industry’s monopolization gave businesses the opportunity to reduce their contract prices with farmers collectively. Kass explained that farmers cannot contract elsewhere because so few companies remain in the agricultural industry. Kass recommended that the legislature prevent large agricultural companies from fixing contract prices beneath the cost of food production and that farmers seek judicial review of agricultural mergers and acquisitions approved by the FTC and Antitrust Division.