Week in Review

IN THE NEWS

• The U.S. District Court for the District of Columbia issued an opinion that resolved lawsuits challenging Google’s search engine dominance. The court held that “Google is a monopolist, and it has acted as one to maintain its monopoly,” in violation of the Sherman Act. U.S. District Judge Amit P. Mehta wrote the 277-page opinion and determined that Google’s practices “impair rivals’ opportunities to compete” and “has enabled Google to increase text ad prices without any meaningful competitive constraint.” The ruling followed a nine-week trial that concluded in November 2023.
• The Biden Administration proposed a regulation intending to prevent airlines from imposing additional costs on families that wish to sit next to one another on flights. The proposed regulation aims to lessen the financial burden on families that travel with children. The proposed rule is a part of President Joseph R. Biden’s wider effort to combat corporate practices that unfairly increase costs to consumers.
• A Biden Administration rule aiming to improve staffing and the quality of care in federally funded nursing homes took effect on August 8, 2024. The Centers for Medicare and Medicaid Services (CMS) ruled that each nursing home resident must receive 3.48 hours of nursing care and that a registered nurse must be onsite 24 hours per day, seven days a week. The rule will also require facilities to conduct evidence-based, data-driven assessments to determine necessary resources and staffing. Challengers to the rule pushed back, arguing the new requirements are “onerous” and create “impossible-to-meet standards.” Opponents also contended that CMS failed to account for the shortage of skilled workers, such as registered nurses.
• President Joseph R. Biden invoked his authority under the Defense Production Act of 1950 (DPA) to accelerate the production of heat pumps, a more energy-efficient alternative to air conditioning and conventional water heaters. Heat pumps produce up to 50 percent fewer greenhouse gasses and reduce energy consumption compared to traditional heating and cooling systems. President Biden relied on the threats from climate change to use the DPA, which confers upon the President broad authority to influence domestic industry in the interest of national defense. Under the same authority in 2023, President Biden allocated $169 million for the same purpose. In this second round of awards, the U.S. Department of Energy announced an $85 million investment in heat pumps.
• The U.S. Court of Appeals for the Sixth Circuit temporarily blocked the Federal Communication Commission’s reinstatement of net neutrality rules, signaling that the Commission would likely lose the legal challenge to broadband providers. The Commission’s proposed net neutrality rules, which were originally adopted during the Obama Administration and revoked during the Trump Administration, would allow the Commission to regulate internet access. The court determined that “net neutrality is likely a major question requiring clear congressional authorization” and that “the Commission has failed to satisfy the high bar for imposing such regulations.” The Sixth Circuit’s stay of the net neutrality rules is effective until the court fully reviews and decides the case on the merits.
• The New Jersey Department of Environmental Protection issued a proposed rule that would update land resource protection regulations, such as creating risk zones for buildings at risk of flooding due to rises in sea level, to manage the effects of climate change. The updated regulations are intended to help residents and communities better respond to rises in sea level and chronic flooding, protecting New Jersey communities and resources. Some key aims of the proposed rule include improving water quality by adequately managing stormwater, through decreasing stormwater volume and removing pollutants, and promoting nature based solutions, such as creating permits for research projects restoring wetlands.
• In a 3-2 vote, the Georgia State Election Board passed a new rule allowing Georgia counties to demand “reasonable inquiry” before certifying election results. Proponents of the rule claim that the Board should have the ability to review documents when they have outstanding questions, thereby protecting voters. Opponents of the rule, however, argue that the rule gives the Board the power to delay certifying the results of an election at the request of a single individual and is unnecessary due to Georgia’s lack of issues certifying votes in past elections.
• The U.S. District Court for the Southern District of New York entered a consent order resolving a civil complaint filed by the Commodity Futures Trading Commission that requires FTX, a cryptocurrency exchange service, and its related entity, Alameda Research (Alameda), to pay $12.7 billion. The Court found that FTX, Alameda, and others violated multiple laws and regulations, including the Commodity Exchange Act, through a widespread fraud scheme against customers, digital asset lenders, and other actions. The consent order also permanently enjoined FTX, Almeda, and their respective agents from future acts, including engaging in digital asset commodity transactions on behalf of others.

WHAT WE’RE READING THIS WEEK

• In an article in the Vanderbilt Law Review, Laura E. Dolbow, Associate Professor of Law at the University of Colorado Law School, provided insight into when and how often Congress precludes judicial review of agency actions expressly. When Congress precludes judicial review, “courts cannot examine agency actions for arbitrariness or procedural deficiencies.” Dolbow concluded that most bars on judicial review target internal agency decisions, such as allocating resources, setting priorities, and managing personnel. Dolbow argued that courts and policymakers should consider the availability of alternative oversight tools—such as political oversight, internal supervision, and public participation—when construing bars on judicial review.
• In a Brookings Institution paper, Samantha Gross, Director of the Energy Security and Climate Initiative at Brookings, argued that the United States should work to reduce its oil demand to fight climate change, rather than focusing upon curbing production. Gross outlined three ways the United States can decrease demand for oil and, thus, its harsh effects on the climate: regulating oil production so that producers conduct it in the most environmentally friendly way possible; instituting policies that will reduce the country’s use of oil; and cooperating directly with energy companies that can make the transition away from oil smoother. If the United States solely focuses on reducing oil production, Gross claimed, other countries will make up the difference and produce oil in ways that are more environmentally harmful than in the United States.
• In a report published by the Urban Institute, Jason Cohn, a research associate at the Institute, and Jason D. Delisle, a nonresident senior fellow at the Institute, compared the College Cost Reduction Act (CCRA), a bill establishing accountability rules for higher education institutions by reforming their grants and loan programs, to the Biden Administration’s Saving on a Valuable Education (SAVE) plan, an income driven repayment plan. Cohn and Delisle’s report included findings that the CCRA would increase benefits for graduate borrowers while decreasing benefits for undergraduate borrowers, and that those using Public Service Loan Forgiveness would repay more under CCRA than SAVE. Cohn and Delisle argued that in order to distribute more of the CCRA’s proposed benefits to undergraduate and low income borrowers, a time-based loan forgiveness provision could be considered.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Abigail Slater, Economic Policy Adviser to Senator J.D. Vance (R-Ohio), discussed the lesser-known path to net neutrality: the Federal Trade Commission (FTC), instead of the Federal Communications Commission (FCC). Absent a legislative solution, Slater contended that the FCC could reclassify broadband internet access so that FTC could regulate it—since the Federal Trade Commission Act bars the FTC from regulating telecommunications. Then, the FTC would rely on “its general authority to police unfair and deceptive” practices. Slater noted that, as a “law enforcement agency with quasi-regulatory authority,” the FTC would wait for net neutrality violations to occur and for complaints from affected consumers before stepping in. Slater, however, questioned whether the FTC approach to net neutrality should take priority over the legislative process.