Week in Review

IN THE NEWS 

• The U.S. Supreme Court held oral arguments in a case that many experts expect to affect the 1984 case Chevron U.S.A. v. Natural Resources Defense Council, a landmark decision that requires courts to defer to an agency’s reasonable interpretation of federal laws. In the arguments, the justices focused little on the facts of the current case, Loper Bright Enterprises v. Raimondo, which concerns a regulation covering Atlantic herring fishing boats, and they instead discussed the current role of Chevron deference in administrative law. Chief Justice John Roberts said that Chevron might be considered “overruled … in practice,” noting that the Supreme Court has not invoked Chevron deference in several years.
• The Supreme Court will consider whether local laws that criminalize homeless individuals sleeping in public amount to cruel and unusual punishment. In 2022, the U.S. Court of Appeals for the Ninth Circuit ruled that officials in Grants Pass, Oregon cannot enforce anti-camping ordinances if there are no other places for homeless individuals to go. In a brief, unhoused individuals in Grants Pass argued that because there are no homeless shelters in the city, they are forced to sleep outside, and these ordinances “criminalize their existence.” Officials in other major cities, including Los Angeles and Phoenix, petitioned for the Supreme Court to hear the case. California Governor Gavin Newsom expressed that by overturning the Ninth Circuit ruling, the Supreme Court can support “efforts to clear encampments and deliver services to those in need.” 
• The U.S. Department of Health and Human Services (HHS) issued a report recommending that the Drug Enforcement Administration reclassify marijuana from Schedule I—used for drugs with no accepted medical use—to Schedule III, which includes drugs with less abuse potential. In its 250-page report, HHS concluded that cannabis may have medical benefits, and though abuse can lead to psychological and physical dependence, it presents less of a risk to users than other Schedule I drugs, such as heroin or MDMA. Some experts raised concerns that the report fails to account for the increasing strength of marijuana, which has been linked to psychiatric issues, especially in adolescents. The Drug Enforcement Administration is considering the recommendation and will open its reclassification decision to public comment.
• The U.S. Environmental Protection Agency (EPA) issued a proposed rule to reduce methane emissions from the oil and gas industry by fining methane emitters for excess emissions. Starting in 2025, EPA would fine oil and gas producers $900 per ton of methane emitted over the permitted level, and such fines would increase to $1,500 per ton in 2026. EPA Administrator Michael S. Regan explained that the rule is part of a “comprehensive strategy to reduce wasteful methane emissions that endanger communities and fuel the climate crisis.”
• The Consumer Financial Protection Bureau issued a proposed rule that would change how banks charge consumers overdraft fees when they withdraw more than their account balance. The proposed rule would require increased disclosure from banks to consumers about the impacts of an overdraft, and would limit the fees which banks may charge consumers for an overdraft. Consumer Financial Protection Bureau director Rohit Chapra argued that the proposed rule would “close a longstanding loophole that allowed many large banks to turn overdraft fees into a massive junk fee harvesting machine.”
• The Federal Communications Commission (FCC) issued a final rule requiring service providers for the newly created federal 988 Suicide and Crisis Lifeline to report outages to the FCC. The reporting requirements are similar to the FCC’s rule for 911 service providers, such that any service provider that can “receive, process, or forward calls” to the 988 hotline must report any outage at least 30 minutes in duration. The rule builds on the Biden Administration’s initiative to address the mental health epidemic in the United States.
• The U.S. Department of Justice’s Civil Rights Division issued a notice of proposed rulemaking to ensure that medical diagnostic equipment such as dental chairs, medical examination tables, and weight scales comply with the Americans with Disabilities Act. The Justice Department claims that a lack of accessible medical diagnostic equipment contributes to serious health complications for people with disabilities. The proposed rule would target medical facilities operated mostly by state and local governments.
• The U.S. Consumer Product Safety Commission proposed a rule that would set the first-ever safety standards for infant support cushions to reduce risks of death and injury. The proposed rule would include performance requirements such as product stability and surface firmness. Furthermore, the proposed rule would mandate that support cushions include a “strongly worded, conspicuous, and permanent on-product warning” to eliminate suffocation and fall hazards. 
• The U.S. Department of Energy issued a final rule amending energy conservation standards for refrigerators and freezers. The Energy Department determined that the new standards will reduce the energy usage of these products by 11 percent, lower consumer cost, and lessen the negative environmental effects of their energy output. The Energy Department’s analysis of the new standards indicated that they are the “maximum improvement in energy efficiency that is technologically feasible and economically justified.”

 WHAT WE’RE READING THIS WEEK

• ​​In an article in the South Dakota Law Review, Paul Mooney, a tribal attorney for the Keweenaw Bay Indian Community in Michigan, argued that tribes seeking to enter the cannabis industry face unique barriers to entry, leading to inequitable outcomes for Native Americans. Mooney explained that many states’ cannabis retail license laws exclude Native American tribes that apply for a tribal business license. Mooney further noted federal law may also prevent tribes from using their casino gaming revenue to invest in businesses that deal in marijuana. To overcome these obstacles, Mooney suggested that tribes pursue special agreements with states on licensing or push for state legislation that makes tribes eligible for retail licenses.
• In a working paper released by the University of Pennsylvania Institute of Law and Economics, Gideon Parchomovsky, a law professor at the University of Pennsylvania Carey Law School, and Asaf Eckstein, a law professor at the Hebrew University of Jerusalem, challenged the argument that private companies require greater regulation. Parchomovsky and Eckstein compared the internal governance and practices of the largest private companies with more regulated public companies. Despite the difference in regulatory requirements, Parchomovsky and Eckstein found no significant difference in the governance structures and practices between public and private companies. Parchomovsky and Eckstein argued that this finding indicates that the need to regulate large private companies may be overstated, since they already operate like regulated public companies.
• In an article published in Regulation, Paul Bonifas, Director of Operations at 9H Research Foundation, and Timothy Considine, economics professor at the University of Wyoming, argued that the estimated benefits from the proposed EPA rule designed to set strict limits on tailpipe emissions are inflated. To comply with these limits, nearly 60 percent of cars sold in 2032 would have to be electric vehicles (EVs). Bonifas and Considine argued that EPA underestimated both the energy costs of EVs and the cost to consumers purchasing new EVs. Bonifas and Considine explained that air pollution is already decreasing with the use of modern conventional combustion engines without the forced adoption of EVs, and urged policymakers to reconsider the proposed rule in light of the actual costs it confers on U.S. consumers.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Jessica Trounstine, a professor at Vanderbilt University, argued that examining how local governments’ policies drive segregation is more fruitful than interrogating individual choices. Trounstine traced the history of exclusionary zoning and restrictive covenants and explained that seemingly neutral policies, such as density restrictions or minimum lot sizes, “codify earlier patterns of racial and economic segregations.” Trounstine concluded that undoing segregation requires ensuring housing availability for lower-income families even within wealthy neighborhoods and cities.