Week in Review

IN THE NEWS

• The U.S. Supreme Court declined to issue a stay of recent Environmental Protection Agency (EPA) rules aimed at reducing emissions, allowing them to remain in effect while being considered by the U.S. Court Appeals for the D.C. Circuit. Both final rules regulated the oil and gas industry—the first focused on reducing methane emissions and the second on reducing mercury emissions. Republican-led states and companies in the oil and gas industry challenged the rules. The Supreme Court also has pending requests to stay a third EPA final rule, which aims to reduce carbon dioxide emissions by power plants.
• The Environmental Protection Agency (EPA) issued a final rule aimed at identifying and replacing all lead pipes in the United States within the next ten years. The final rule will also impose more stringent requirements for the testing of drinking water, mandate a lower threshold for communities to act when drinking water may be unsafe, and bolster communication between communities and health professionals. EPA Administrator Michael S. Regan emphasized that lead poisoning is a “generational public health problem” and that no American “should have to worry about lead-contaminated water in their homes.”
• The U.S. Supreme Court agreed to hear a challenge to the Nuclear Regulatory Commission (NRC)’s authority to license private companies to operate temporary facilities that store spent nuclear fuel. Nuclear waste has been accumulating throughout the United States for decades as Congress’s search for a permanent facility has stalled due to local opposition over the proposed location. The NRC contends that the Atomic Energy Act grants it authority to license private temporary facilities until a permanent federal facility is constructed. The State of Texas argues the NRC lacks such authority under the statute. The U.S. Court of Appeals for the Fifth Circuit agreed with Texas and blocked the NRC’s licenses. In its 2024 term, the Supreme Court will review the Fifth Circuit’s ruling and is expected to address the question of whether Texas has standing to sue the NRC, despite not participating in the licensing proceedings.
• North Carolina Governor Roy Cooper signed a bill into law that aims to help Western North Carolina recover after Hurricane Helene. The bill’s goals include providing $250 million to the state’s Department of Public Safety and Division of Emergency Management to aid relief efforts, and providing $16 million to its Department of Public Instruction to compensate school employees for salary lost due to the hurricane. The bill extends the declared state of emergency until March 2025 to allow North Carolina to recover from the damage.
• Twenty Republican-led states and several nursing home organizations filed a lawsuit against the Biden Administration to bar a final rule that would increase the minimum requirements for nursing home staffing. The final rule requires that nursing homes provide at least 3.48 hours a day of nurse staffing for each resident and that a registered nurse always be present in the facility. The plaintiffs alleged that the Biden Administration overreached its statutory authority, that the final rule is “monumentally costly and nearly impossible to comply with,” and that many nursing homes will be forced to close, meaning the “main victims will be the patients who will have nowhere else to go.” President Joseph R. Biden has made it a priority to “protect seniors’ lives and life savings by cracking down on nursing homes that commit fraud” and “endanger patient safety.”
• The Centers for Medicare & Medicaid Services (CMS) proposed a rule aimed at enhancing Affordable Care Act protections for victims of fraud and unauthorized activity by insurance agents and brokers. The proposed rule would expand CMS’s authority to suspend agents and brokers who “pose an unacceptable risk” to consumers. To increase transparency and accountability in the Medicare and Medicaid enrollment processes, the rule would also enhance the consumer consent documentation standards and require updates to help consumers differentiate between plans.
• The Pipeline and Hazardous Materials Safety Administration of the U.S. Department of Transportation issued a notice of proposed rulemaking intending to modernize hazardous materials transportation regulations. Features of the proposed rule include relaxing communication requirements for truck drivers transporting hazardous material and accelerating safety reviews of tank car designs. The changes aim to strengthen safety standards concerning the transportation of hazardous materials, while reducing regulatory burdens and saving businesses and consumers close to one hundred million annually.
• Michigan Governor Gretchen Whitmer signed a number of bills into law aimed at expanding access to health care and protecting the rights of home care workers in Michigan. The signed bills permit individual home help caregivers to unionize and would enhance access to rural healthcare by changing the definition of “rural hospital” to encompass more hospitals and provide additional resources to these hospitals. Governor Whitmer predicted that the bills would “make a real difference in people’s lives by expanding access to health care, protecting workers’ rights, and putting money back in Michiganders’ pockets.”

WHAT WE’RE READING THIS WEEK

• In a forthcoming article in the Widener Commonwealth Law Review, Robert L. Glicksman, the J.B. & Maurice C. Shapiro Professor of Environmental Law at The George Washington University Law School, concluded that civil penalty regimes under certain environmental laws may “survive an attack on Seventh Amendment grounds,” despite the U.S. Supreme Court’s recent holding in Securities and Exchange Commission (SEC) v. Jarkesy. In Jarkesy, the Court held that the SEC’s imposition of civil penalties in securities fraud adjudications violated the Seventh Amendment right to a jury trial. Glicksman argued that analyzing similar disputes will involve determining whether the statutory claim resembles a common law cause of action to which the right to a jury trial attaches. Glicksman concluded that the standards under environmental statutes, such as the Clean Water Act and Clean Air Act, are “light years away” from public nuisance common law, which he reasoned is the closest analog. Glicksman thus predicted that civil penalties for environmental violations may withstand constitutional scrutiny.
• In a brief issued by the Urban Institute, Laurie Goodman, a fellow at the Institute, Todd Hill, a program manager at the Institute, and Jung Hyun Choi, a research associate at the Institute, argue for revisions to proposed Consumer Financial Protection Bureau (CFPB) rules that would provide help to borrowers having difficulty paying their mortgages. The proposed rule includes providing loss mitigation information to borrowers with limited English proficiency in languages they can understand. Goodman and her coauthors argue, however, that the proposed rule’s approach to providing language access to borrowers with limited English proficiency is too costly and burdensome for lenders, and suggest that data collection surveys could be used instead to gauge how many languages lenders should provide translation services for. Goodman and her coauthors also argue that in an attempt to end dual tracking, the CFPB allows for long periods of borrower non response, and suggest that borrowers should be moved toward foreclosure after a shorter length of time.
• In an article in the Boston College Law Review, Guy Rubinstein, an Edmond J. Safra Graduate Fellow in Ethics at Harvard Law School, argued that the exclusionary rule—a doctrine barring use of evidence obtained in violation of the Constitution—is misunderstood and that its deterrent effects are better appreciated by prosecutors, not police officers. Rubinstein claimed that because police officers are more concerned with arrests than convictions, prosecutors must ensure that police searches are lawful. He noted that the rule encourages prosecutors to prevent evidence from being excluded and identified various ways that prosecutors can influence police officers, such as through training and legal counseling. Rubinstein concluded that prosecutors will use their influence “more if courts and the public reward them when they do so” and “remind them that promoting lawful policing largely depends on them.”

EDITOR’S CHOICE

• In an essay in The Regulatory Review, David J. Hayes, professor at Stanford Law School, examined the Trump Administration’s reduction in environmental law enforcement actions, revealing a systematic weakening of environmental protections. Hayes observed that, in 2019, EPA inspections decreased by half and enforcement cases reached a 25-year low. He noted the Trump Administration rolled back limits across the three largest sources of climate pollution: greenhouse gas emissions, tailpipe emissions, and oil and gas methane emissions. Hayes argued that the Trump Administration was more interested in “enabling companies to avoid” the law than enforcing it. Beyond reducing the number of inspections and enforcements, Hayes identified an “anti-environmental philosophy” and a pattern of “removing key regulatory protections and pushing to hard-wire favoritism for polluters” in the Trump Administration.