Week in Review

IN THE NEWS 

• The European Court of Human Rights ruled that Switzerland’s failure to adequately address the climate crisis was in violation of human rights. The plaintiffs, a group of over 2,000 Swiss women, claimed that the heat waves caused by climate change harmed their health and quality of life. Commentators predicted that this ruling could open the door for similar lawsuits around Europe, which may lead to legislative changes.
• The U.S. Environmental Protection Agency (EPA) announced the first national drinking water standard to limit exposure to per-and polyfluoroalkyl substances (PFAS), man-made chemicals that have been linked to deadly diseases, such as cancer, and immune and developmental damage to infants and children. The final rule restricts six PFAS chemicals in water, requiring water systems to monitor these chemicals and remove them if they are above the allowable levels. EPA estimates that the rule will reduce PFAS exposure for 100 million people and prevent thousands of deaths and serious illnesses.
• EPA also issued a final rule that would reduce toxic air pollutants from chemical plants by 6,200 pounds annually. This rule would apply to over 200 plants that release ethylene oxide and chloroprene, toxic chemicals that after long-term exposure can increase the risk of certain types of cancer. EPA Administrator Michael Regan stated that “this rule alone will reduce the cancer risk for people living in these communities by 96 percent.” The rule also would require these facilities to monitor the air concentration around their manufacturing site for toxic chemicals, which EPA will make publicly available.
• EPA also announced the first national drinking water standard to limit exposure to per-and polyfluoroalkyl substances (PFAS), man-made chemicals that have been linked to deadly diseases, such as cancer, and immune and developmental damage to infants and children. The final rule restricts six PFAS chemicals in water, requiring water systems to monitor these chemicals and remove them if they are above the allowable levels. EPA estimates that the rule will reduce PFAS exposure for 100 million people and prevent thousands of deaths and serious illnesses.
• The U.S. Court of Appeals for the District of Columbia Circuit upheld the 2022 reinstatement of the EPA’s waiver allowing California to set stronger greenhouse gas emission standards and zero-emissions vehicle requirements than the federal government. The waiver was challenged by 17 states and fuel industry trade groups, claiming it was unconstitutional because it granted California powers that other states did not enjoy. In its decision, the court noted that automakers were already exceeding California’s standards and acknowledged the significant impacts pollution and climate change have on California. California’s emissions standards have been adopted by 17 states and Washington, D.C.
• Iowa Governor Kim Reynolds signed a bill into law that criminalizes “illegal reentry” on the state level. The law authorizes state and local police to arrest undocumented immigrants who have illegally re-entered the country. A similar law in Texas is currently being challenged in court on the grounds that it interferes with federal immigration laws. The Iowa bill is slated to take effect on July 1, 2024.
• The National Association of Intercollegiate Athletics (NAIA) announced a policy that restricts participation in women’s sports to people whose biological sex is female and have not begun any “masculinizing hormone therapy.” The NAIA, which oversees 83,000 student athletes across 241 colleges in the United States, stated that students that had begun masculinizing hormone therapy may participate in the school’s internal athletic activities, such as workouts and practices. These students, however, cannot participate in “countable” external competitions, which are competitions impacting student statistics, win-loss records, and coaching records. The NAIA policy does not alter participation in men’s sports.
• The Federal Election Commission proposed a rule that would formally authorize the use of campaign funds to pay for home security measures to “protect against threats to the physical safety of federal officeholders and their families.” Under federal law, candidates for federal office cannot use campaign funds to pay for personal expenses. If enacted, the proposed rule would provide that the Federal Election Commission will not consider the use of campaign funds for reasonable security measures to be personal use.
• The Department of the Interior’s Office of Surface Mining Reclamation and Enforcement finalized a rule that would amend the Office’s notification procedures of violations of the Surface Mining Control and Reclamation Act of 1977. The rule reinstates the requirement that state regulators must respond to notifications from the Office of suspected violations within 10 days, or the Office must immediately order a federal inspection of the mine. Supporters of the rule have reportedly praised the rule for strengthening the ability of local communities to hold mine operators accountable for violations and pollution.

WHAT WE’RE READING THIS WEEK

• In a forthcoming article in the Journal of Law, Economics, and Policy, Professors Kristin E. Hickman, from the University of Minnesota Law School, and Bridget C.E. Dooling, from The Ohio State University Moritz College of Law, discuss a Biden Administration decision to end review of tax regulations by the Office of Information and Regulatory Affairs (OIRA). The Biden Administration pointed to numerous justifications for the decision, and Hickman and Dooling examine those justifications in the article. For example, they address a reported claim from an administrator in OIRA that the decision is merely a “‘return to what had been the status quo’” for about 40-years and clarify that OIRA had always played at least a small part in tax regulation review, and that this decision would be the first time OIRA has no role in tax review regulation.
• In a recent Brookings Institution article, Mark MacCarthy, a Nonresident Senior Fellow in Governance Studies at the Center for Technology Innovation at Brookings, explores various regulatory measures to restore competition in mobile application stores. MacCarthy explained that app developers have to pay Apple and Google 30 percent of their revenue to offer their product on the app stores, which is reducing competition and raising prices for consumers. He suggested that regulators should set the price app stores can charge app developers. MacCarthy also proposed that users should be allowed to install third-party app stores. This “interoperability”, however, requires developers to have full access to the mobile operating systems, which could have significant security risks, warned MacCarthy.
• In an article in the Yale Journal on Regulation, Adam J. Levitin, a professor at Georgetown University Law Center, discusses what he describes as a “financial inclusion trilemma.” As Levitin claims, it is not possible for a bank to simultaneously provide numerous services for low-income consumers, do so at fair terms, and do so profitably. Levitin differentiates between unbanked consumers, who have no relationship with a bank, and underbanked consumers, who have bank accounts but use high-cost alternative financial services, such as payday loans and rent-to-own plans. Although interventions, such as government service mandates, might help provide banking services to the completely unbanked, Levitin suggests these programs would  do little to fulfill underbanked consumers’ demand for affordable credit. Levitin concludes that this trilemma can only be solved by fundamental changes to the U.S. economy.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Richard J. Pierce, a professor at The George Washington University Law School, discussed the U.S. Supreme Court decision in West Virginia v. EPA. Pierce argued the decision will weaken the U.S.’s ability to address climate change by passing the regulatory authority of the issue from agencies to Congress. Pierce explained that the Supreme Court’s decision relied on the “major questions doctrine” which Pierce argued granted the Court broad power to overrule agency actions. According to Pierce, this doctrine could render agencies powerless and leave the power to address issues to Congress. Pierce concluded, however, that Congress’s extreme political polarization makes enacting such legislation nearly impossible, so the U.S. may have no way to mitigate climate change.