Week in Review

IN THE NEWS

• The U.S. Food and Drug Administration updated the emergency use authorizations for the Pfizer-BioNTech and the Moderna COVID-19 vaccines. The change enables previously boosted individuals that are either immunocompromised or over the age of 50 to receive a second booster shot four months after the first booster. Peter Marks, director of the Center for Biologics Evaluation and Research within the administration, called on all adults to get a booster and highlighted that a second booster could “help increase protection levels” for immunocompromised and older people.
• The U.S. Supreme Court held that federal courts do not have automatic subject-matter jurisdiction to vacate or confirm an arbitration award under sections 9 and 10 of the Federal Arbitration Act, which authorize a party to petition federal courts for review of an arbitration decision. In a previous case, the Court found that a different section of the Federal Arbitration Act expressly authorized federal courts to “look through” a petition to decide if jurisdiction existed in the underlying case, but in this case, the Court found that the same statutory language did not exist in these sections. The Court also reasoned that arbitration agreements are generally governed by state law and belong in state courts. Justice Stephen Breyer dissented, arguing the statute should be read with the “context, structure, history, purpose, and common sense” to allow for the more lenient “look through” approach to establish jurisdiction.
• The U.S. Environmental Protection Agency (EPA) released a four-year strategic plan. EPA outlined four principles it has committed to abide by: following science, following the law, advancing justice and equity, and being transparent. EPA also articulated a number of goals, such as tackling the climate crisis, advancing environmental justice and civil rights, and ensuring clean and safe water for all communities. EPA released its plan within the same week that the Biden Administration proposed an almost $2 billion budget increase for EPA. Catherine Flowers, founding director of the Center for Rural Enterprise and Environmental Justice, applauded the Biden Administration for making environmental justice “a national priority.”
• The Occupational Safety and Health Administration (OSHA) proposed a new rule that would update the recordkeeping requirements related to workplace injuries and illness. Under the existing rules, some employers must report information on workplace injuries and illness to OSHA. The proposed rule would build on the existing scheme and would require additional submissions related to specific high-hazard industries, among other new requirements. According to OSHA, the new rule would enhance the agency’s ability to discover high-risk workplaces for workers.
• The U.S. Securities and Exchange Commission (SEC) published its annual examination priorities. The SEC’s Division of Exams reviews entities registered with the SEC through risk-based examinations and focuses its examinations on “certain practices, products, and services that it believes present potentially heightened risks to investors or the integrity of the U.S. capital markets.” The annual report provides information about how the commission approaches its examinations and highlights areas the commission views as presenting heightened risk. The SEC’s 2022 examination priorities include areas such as crypto-assets and environmental, social and governance (ESG) investing, among others. Acting Director of the Examination Division Richard Best stated that the examination priorities include both emerging issues and “core issues” that have been long standing SEC priorities, such as retail investor protection.
• California governor Gavin Newsom signed an executive order asking certain California agencies, such as the State Water Resources Control Board, to adopt regulations to conserve water resources. For example, Newsom asked the Board to consider banning “watering ornamental grass on commercial properties,” a move which Newsom estimated could save enough water to serve at least several hundred thousand households a year. Newsom also directed local water suppliers to move to Level 2 of their Water Shortage Contingency Plans, which requires them to prepare for water shortages of up to 20 percent. Governor Newsom noted that “amid climate-driven extremes in weather, we must all continue to do our part and make water conservation a way of life.”

WHAT WE’RE READING THIS WEEK

• In an article forthcoming in the Stanford Journal of Blockchain Law and Policy, Chris Brummer, professor at The Georgetown University Law Center, discussed disclosure and  Decentralized Finance, or DeFi. DeFi, in contrast to traditional finance, refers to the “suite of financial services operating on public blockchains designed to mimic or replicate services offered in the traditional financial system like borrowing, lending, asset creation, and more.” Brummer noted that DeFi, through its technological design, discloses substantial material information that would be useful to actors familiar with the technology but highlighted the need to incorporate “shorter, crisper disclosures typically associated with consumer protection law.” Brummer proposed a DeFi disclosure framework and tools, which he argued could be more effective than the SEC’s existing information repository, EDGAR.
• In a recent report, the International Renewable Energy Agency warned that “anything short of radical and immediate action will diminish—and may possibly eliminate—the chance” of keeping Earth’s warming to 1.5 or even 2 degrees Celsius. The agency stressed the need to accelerate the energy transition across the globe and highlighted electrification and energy efficiency as key drivers needed in the transition. The agency also noted that in order to limit warming to 1.5 degree Celsius—the maximum increase leading scientists claim gives the planet the best chance of avoiding catastrophic heating—electricity sectors need to be “thoroughly decarbonized by mid-century, with solar and wind leading the transformation.” The agency concluded that countries need more ambitious decarbonization targets and measures, stating “it is the time for urgent action.”
• In an article in the Cardozo Arts and Entertainment Law Journal, Kal Raustiala of UCLA School of Law and Christopher J. Sprigman of the NYU School of Law responded to concerns about environmental destruction and labor exploitation in the fast fashion industry. Raustiala and Sprigman found that the freedom to copy clothing designs encourages innovation in the fashion industry by accelerating the fashion cycle. They acknowledged that fast fashion causes serious environmental harm, which they recommended legislatures address through policies aimed at minimizing environmental damage across industries. They also emphasized that fast fashion contributes to exploitation of low-wage workers, which they urged regulators to address in generalized labor-related regulation that is not limited to the fast fashion industry.

FLASHBACK FRIDAY

• In an essay for The Regulatory Review, Adam M. Finkel, professor at the University of Michigan School of Public Health and former executive director of the Penn Program on Regulation discussed OSHA as an overall federal agency and how it may find success despite facing “shrill opposition, benign neglect, and false friends.” Finkel suggested that OSHA may overcome its opposition by working with other regulators across federal, state, and local agencies to inspect safety hazards. Finkel also proposed that OSHA nudge companies to promote health and safety for customers, suppliers, and competitors.