Week in Review

IN THE NEWS

• The U.S. Supreme Court upheld a California law banning the sale of pork made from pigs kept in tightly confined spaces. In its opinion, the Court rejected the pork industry’s argument that the California ban regulates out-of-state farmers in violation of the U.S. Constitution’s Commerce Clause. Specifically, the Court’s “dormant” Commerce Clause doctrine prohibits states from discriminating against out-of-state economic interests. The Court, however, reasoned that the California law does not discriminate between states, because it places the same restrictions on out-of-state and in-state pork producers.
• The U.S. Environmental Protection Agency (EPA) proposed new carbon pollution standards for coal and natural gas-fired power plants. EPA explained that its proposed standards would prevent the emission of more than 600 million metric tons of carbon dioxide from power plants. In addition, EPA stated that its proposal would cut tens of thousands of tons of harmful air pollutants, such as particulate matter, sulfur dioxide, and nitrogen oxide. EPA estimated that the new standards could produce up to $85 billion in net climate and health benefits.
• The U.S. Department of Transportation announced plans to require airlines to cover the cost of amenities such as meals, hotels, and rebooking for stranded passengers for the first time in history. The planned rulemaking would aim to require that airlines compensate passengers for cancellations or significant delays caused by the airlines. U.S. Secretary of Transportation Pete Buttigieg stated that “when an airline causes a flight cancellation or delay, passengers should not foot the bill.”
• EPA also proposed more stringent criteria for pollutant and greenhouse gas emissions standards for light-duty passenger cars, light trucks, and medium-duty vehicles. According to its proposal, EPA would phase in these requirements for vehicle models from years 2027 to 2032. EPA suggested that these revised standards were appropriate in light of emerging zero-emission vehicle technologies and recent federal legislation that is intended to support investment in and adoption of these technologies.
• The Consumer Financial Protection Bureau (CFPB) released guidance clarifying that a bank cannot reopen an account to process transaction fees after a customer has already closed the account. The CFPB concluded that when a bank reopens an account without informing the customer, it causes substantial harm to the customer, who then potentially has to pay several other fees after a negative balance appears in the reopened account. CFPB Director Rohit Chopra called the reopened account a “fake account” and the practice of reopening accounts “the harvesting of illegal junk fees.”
• The U.S. Drug Enforcement Administration (DEA) extended through at least November 2023 a telehealth rule permitting doctors to prescribe certain controlled substances without meeting with the patient in person. The rule, which was created during the COVID-19 pandemic, authorizes medical professionals to prescribe certain controlled substances after meeting with a patient via video conference. DEA Administrator Ann Milgram stated that the DEA “recognizes the importance of telemedicine in providing Americans with access to needed medications.”
• The International Trade Administration proposed strengthening the enforcement of anti-dumping and countervailing duty laws by allowing the U.S. Department of Commerce to determine when a particular market situation distorts the costs and prices of imported products. In the notice, the Administration explained that these modifications would bring anti-dumping and countervailing duty regulations into conformity with the agency’s general procedures and would allow for more effective enforcement.
• The National Telecommunications and Information Administration (NTIA) requested public comment on its proposal to enhance privacy protections for holders of .us domains. The NTIA’s proposal would require a party requesting data pertaining to a us. domain holder to authenticate itself by providing an email address, stating a purpose for retrieving the information, and accepting terms of service. The NTIA suggested that this rule would align the United States’ protection of registered domain holders’ privacy with the European Union’s privacy safeguards.

WHAT WE’RE READING THIS WEEK

• In an article in the New York University Law Review, Gregory H. Shill, a professor at the University of Iowa College of Law, argued that the National Highway Transportation Safety Administration (NHTSA) has not done enough to protect pedestrians from motor vehicles. He outlined steps NHTSA could take to improve pedestrian safety. First, Shill recommended that NHTSA directly consider pedestrian safety—not just passenger safety—when evaluating motor vehicle safety. Second, Shill advised NHTSA to require that vehicles be designed to protect people inside and outside of them. Third, Shill proposed that NHTSA modify its safety tests to account specifically for the risks faced by child pedestrians.
• In an Urban Institute report, a team of research associates at the organization argued that loosening restrictive land-use regulations increases the availability of affordable housing. After examining land-use reforms adopted between 2000 and 2019, the research associates found that reforms that increased housing density–the number of housing units per unit of land–resulted in a 0.8 percent increase in housing availability within three to nine years. Likewise, land-use regulations that increased land-use restrictions resulted in lower density developments and more expensive housing. The research associates concluded that “reforms loosening restrictions are, on average, associated with an uptick in new housing supply.”
• In a forthcoming article in the Columbia Science and Technology Law Review, Matthew Kugler, a professor at Northwestern Law, argued that public opinion of state uses of facial recognition technology should influence the regulation of that technology. Kugler described how the government increasingly relies on facial recognition technology for law enforcement, public security, and fraud detection. Kugler discussed how empirical studies demonstrate that the public is more comfortable with governmental uses of facial recognition that target serious crimes, but people are less comfortable with more casual uses, such as live scanning of public areas to detect criminals.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Brandy L. Wagstaff, a professor at the George Mason University School of Law, and Jacob Quasius, an attorney at the U.S. Department of Housing and Urban Development, argued that the U.S. Equal Employment Opportunity Commission (EEOC) should clarify that telework qualifies as a reasonable accommodation under Title I of the Americans with Disabilities Act. Wagstaff and Quasius noted that, although the EEOC has recognized that telework qualifies as a reasonable accommodation, courts often deny employee telework accommodation requests. Wagstaff and Quasius urged the EEOC “to recognize the shifting telework landscape.”