Week in Review

IN THE NEWS

• The Office of Information and Regulatory Affairs (OIRA), which sits within the Office of Management and Budget, issued revisions to Circular A-4, a guidance document that  sets out OIRA’s  recommendations  to federal agencies on conducting accurate regulatory analyses. The revisions—OIRA’s first update to Circular A-4 in 20 years—are designed to improve agencies’ calculations of the benefits and costs of their regulations. The revised Circular sets out, among other guidance, how best to measure a regulation’s future consequences and how agencies should account for nonmonetary effects. The revision is also part of  a broader effort by the Biden Administration to modernize regulatory review.
• Ohio voters approved a ballot measure guaranteeing the right to abortion in the state’s constitution. The measure amends the state’s constitution to affirm that individuals possess the right to make their own choices regarding reproduction, including the option to have an abortion. Ohio, however, may still prohibit abortion when the fetus reaches viability, typically around 23 weeks. Following the U.S. Supreme Court’s decision that ended the constitutional right to an abortion last year, Ohio’s legislature passed an abortion ban that prohibited abortions after roughly six weeks of pregnancy. The ban is currently on hold pending a ruling from the Ohio State Supreme Court, but the results of this election will likely require the court to invalidate the ban.
• Ohio voters approved the recreational use of marijuana for adults. The new law creates the Division of Cannabis Control, a marijuana oversight mechanism within the Ohio Department of Commerce. Tom Haren, a spokesperson for the Coalition to Regulate Marijuana Like Alcohol, stated that he anticipates that adult-use licenses will be issued by August. Ohio is the 24th state to legalize recreational marijuana.
• The Centers for Medicare and Medicaid Services (CMS) proposed a new rule that would revise the Medicare Advantage Program and the Medicare Prescription Drug Benefit Program. The proposed rule would change the compensation structure for independent insurance agents and brokers in order to prevent them from “steering” beneficiaries to health plans that are not in their best interests. The rule would also add behavioral health facilities to the list of facility types that CMS will consider when assessing the adequacy of Medicare Advantage plans. Other proposed changes include requiring that Medicare Advantage plans notify enrollees of their unused supplemental benefits, such as dental and vision coverage, as well as provide greater transparency to CMS and enrollees regarding supplemental benefits for the chronically ill.
• The U.S. Forest Service proposed a rule to allow the agency to review proposals for carbon capture and storage programs on National Forest System lands. Carbon capture and storage is a process by which carbon dioxide is “injected and stored” below the earth’s surface to combat the effects of greenhouse gas emissions. In response to concerns that the pipelines used to capture and store carbon will be routed through poor and minority communities, the Forest Service contended that the proposed rule will not disproportionately affect historically marginalized and low-income groups. In addition, the agency emphasized that the U.S. Environmental Protection Agency would intervene should any proposed program threaten public health.
• The Financial Stability Oversight Council approved new guidance that makes it easier to designate nonbanks, such as hedge funds and asset managers, as “systemically important financial institutions,” or SIFIs. The SIFI classification—which is currently limited to the largest banks in the United States—enables increased scrutiny by the U.S. Federal Reserve and heightened mandates for capital and liquidity. Secretary of the U.S. Department of the Treasury Janet Yellen said the updated guidance will fix the current approach’s “flawed view of how financial risks develop and spread.”
• The U.S. Fish and Wildlife Service (FWS) reinstated endangered species status for the gray wolf in parts of 44 states and threatened species status for the gray wolf in Minnesota. The agency issued the new rule to comply with a district court order that vacated its 2020 rule removing the gray wolf from the List of Endangered and Threatened Wildlife. FWS plans to propose a new rule clarifying the status of gray wolves, and the agency also appealed the district court ruling to the U.S. Court of Appeals for the Ninth Circuit.
• A bipartisan group of U.S. Senators introduced a bill that would, if passed, end consideration of legacy in college and university admissions decisions. The bill would prohibit institutions from giving “preferential treatment” in the admissions process to applicants that have a relationship to alumni or donors of the institution. Senator Todd Young (R-IN), a proponent of the bill, said legacy admissions “restrict opportunities” and “provide unmerited advantage to the most connected individuals.” Following the U.S. Supreme Court’s reversal of race-based affirmative action policies, the U.S. Department of Education recommended eliminating the use of legacy in admission practices to improve campus diversity.
• The Federal Communications Commission (FCC) issued a notice of proposed rulemaking that would classify broadband internet access as a “telecommunications service”, bringing the service under the agency’s authority. The FCC argued that this classification will enable the agency to protect broadband access and “safeguard the fair and open internet.” Because broadband internet access is essential to daily life, the FCC stated that it plans to pursue a national regulatory approach with consumers at its core.

WHAT WE’RE READING THIS WEEK

• In a forthcoming article in the George Mason Law Review, Kent Barnett, a professor at the University of Georgia School of Law, and Christopher J. Walker, a professor at University of Michigan Law School, argue that the U.S. Supreme Court should not overrule its Chevron rule in Loper Bright Enterprises v. Raimondo, a case on the Court’s docket for the 2023–2024 term. The Chevron rule requires that courts defer to federal agencies in the interpretation of ambiguous statutes. Here, Barnett and Walker assert that preserving Chevron will encourage stability in federal law and still allow courts to review “impermissibly arbitrary and capricious” agency interpretations of statutes.
• In a recent article in the New York University Annual Survey of American Law, Cynthia Estlund, a professor at New York University School of Law, argued that technology has increased firms’ ability to replace workers, resulting in an erosion of workers’ bargaining power. Estlund explained how dramatic improvements in automation as well as technology’s role in streamlining outsourcing has significantly undermined workers’ market power. Estlund contended, however, that legal reforms facilitating unions and collective bargaining would not be enough. Estlund proposed using state regulatory power to regulate labor standards and rebalance worker’s bargaining power.
• In a recent article in the Fordham Law Review, Drew Simshaw, assistant professor at Gonzaga University School of Law, argued that the current regulatory state of legal technology is disjunctive. Simshaw recognized that new legal technologies such as legal chatbots can “help close the access to justice gap” by providing more services to low and middle income people. But, according to Simshaw, these technologies are unregulated. In turn, Simshaw encouraged states to join a system of national regulation that allows for creators of legal technologies to innovate, while also enabling regulators to make informed decisions on promising new technologies.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Holly Doremus, a professor at the University of California, Berkeley School of Law, predicted that the U.S. Supreme Court’s 2019 Weyerhaeuser v. U.S. Fish and Wildlife Service decision would increase administrative costs. In Weyerhaeuser, the Court declined to defer to the FWS’s definition of “critical habitat” in its listing of the dusky gopher frog as an endangered species, which made it more difficult for the FWS to define the scope of its endangered status. Doremus asserted that this ruling will encourage “disgruntled landowners” to litigate, and will add administrative costs as courts review FWS explanations more closely.