Week in Review

IN THE NEWS

• President Joseph R. Biden vetoed a joint resolution that aimed to reverse a U.S. Department of Labor rule allowing pension managers to consider environmental, social, and corporate governance factors when making investment decisions. The veto is President Biden’s first since taking office. The Senate and House voted to disapprove of the rule under the Congressional Review Act, which authorizes Congress to end the legal effect of agency regulations and bars future regulations that are substantially the same as the disapproved rule. President Biden explained that he vetoed the resolution because individuals managing retirement plans “should be able to consider any factor that maximizes financial returns for retirees across the country.”
• The U.S. Supreme Court unanimously held that a deaf student can sue his public school for money damages under the Americans with Disabilities Act (ADA) for failing to provide him an education tailored to his needs, even after he had already settled a complaint filed under a different law. The student, Miguel Luna Perez, and his family first settled a lawsuit under the Individuals with Disabilities Education Act (IDEA), which guarantees disabled children the right to receive a free and appropriate education, but does not allow plaintiffs to receive money as a remedy. Although lower courts held that Perez could not pursue an ADA claim because of his IDEA settlement, the Supreme Court ruled that, because Perez and his family were seeking a form of relief not available under IDEA, they could still bring their ADA suit.
• Uganda’s parliament passed a law making it illegal for individuals to identify as LGBTQ+ or promote homosexuality in any way. The law, which has not yet been published, includes severe punishment, such as the death penalty for “aggravated homosexuality,” which earlier drafts of the bill define as same-sex relations involving a person living with HIV, a minor, a person with a disability, or someone who has been drugged. The law also threatens a life sentence for anyone engaging in same-sex relations. Although over 30 African countries, including Uganda, criminalize same-sex acts, Uganda’s law is the first to criminalize people who identify as LGBTQ+. Secretary of State Antony Blinken urged President Yoweri Museveni to “strongly reconsider” signing the law.
• President Biden designated Avi Kwa Ame, a mountain in Nevada, and Castner Range, a mountain range in Texas, as national monuments, protecting these sites from future development. Both sites hold cultural significance to the tribal nations and Indigenous peoples who have historically inhabited these areas and also contain significant ecological resources. The U.S. Army, however, had occupied the Castner Range area for several decades for use as a military training ground. Through his proclamation, President Biden ordered the clean-up of any remnants of the military’s previous use of Castner Range, and he directed several agencies to consult indigenous Tribal nations in the future management of both monuments.
• Wyoming Governor Mark Gordon signed a bill into law banning medical abortion pills. Medication abortion is already banned in states that have total abortion bans, but Wyoming became the first state to outlaw the use of abortion pills without a total ban. Governor Gordon banned abortion pills as a Texas federal judge is expected to rule on whether the U.S. Food and Drug Administration should withdraw its decades-old approval of the abortion pill mifepristone. Governor Gordon also allowed a separate bill banning abortion to become law without his signature, but a federal judge blocked the ban shortly after it took effect.
• A federal judge temporarily blocked the implementation of a U.S. Environmental Protection Agency (EPA) water regulation that expands the protections of the Clean Water Act to thousands of small streams, wetlands and other waterways. Texas and Idaho challenged the regulation, arguing that it violated both the Administrative Procedures Act and the Commerce Clause. The judge paused the enforcement of the regulation because of its high compliance costs and the substantial likelihood that a court will invalidate the regulation upon further review. The Supreme Court heard a challenge to the same rule during its fall term, which it has yet to rule on.
• The Oklahoma Supreme Court overturned part of the state’s near-total abortion ban. The court held that the state must allow a patient to terminate a pregnancy if a doctor has determined with reasonable medical certainty that continuing the pregnancy would endanger the patient’s life. The court emphasized that the state Constitution includes “an inherent right of a pregnant woman to terminate a pregnancy when necessary to save her life.”

WHAT WE’RE READING THIS WEEK

• In an Urban Institute report, Frederic Blavin, Principal Research Associate at the Urban Institute, and his coauthors analyzed chronically ill adults’ use of telehealth during the first year of the pandemic. Blavin and his coauthors found that individuals were satisfied with their telehealth visits, but still believed some in-person care will be necessary going forward. The public health emergency declaration for COVID-19 will end in May 2023, and many provisions that have expanded access to telehealth—such as waiving cross-state licensing requirements for providers—will expire unless lawmakers make permanent changes, explained Blavin and his coauthors. Blavin and his coauthors concluded that demand for telehealth will remain high after this expiration,  and lawmakers should prioritize preserving continued access to telehealth.
• In an article in the Wyoming Law Review, Keke Jason Stark, a professor at the Alexander Blewitt III School of Law at the University of Montana, and his coauthors, detail the legal history of Indigenous rights to Yellowstone National Park. They explain that, when Congress first established the park, a series of laws and court decisions rendered the Indigenous tribes who lived there trespassers, and criminalized long-standing Indigenous cultural practices such as hunting. Stark and his coauthors also analyze recent federal actions, such as executive orders requiring tribal consultation, and conclude that these actions could create opportunities for the Indigenous tribes of Yellowstone to reclaim their relationships with the land.
• In a recent research paper, Michael Barsa and David A. Dana, professors at Northwestern University Pritzker School of Law, argued that the U.S. Supreme Court’s decision in West Virginia v. EPA could prevent federal laws from preempting or overriding state laws authorizing lawsuits against energy companies Barsa and Dana explained that federal laws frequently preempt state laws that permit parties to sue energy companies to recover costs associated with climate change. In West Virginia v. EPA, the Court ruled that agencies cannot adopt regulations of “vast economic or political significance” without clear congressional authorization. Barsa and Dana concluded that this rationale could also mean agencies must have clear congressional authorization for federal preemption of state climate change laws.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Jasmine E. Harris, a professor at the University of Pennsylvania Carey Law School, proposed several priorities for the next wave of disability rights. Harris explained that lawmakers have traditionally limited disability rights initiatives to anti-discrimination efforts and improving access to public benefits, at the expense of persons with disabilities. Harris noted, for example, that persons with disabilities were disproportionately affected by power outages during the recent California wildfires. Harris concluded that lawmakers must broaden their viewpoints and use disability rights as a lens to analyze other issues, such as environmental justice and emergency response concerns.