Week in Review

IN THE NEWS

• President Obama has released the regulatory agenda for the final months of his presidency. The agenda features rules being considered by federal agencies in a wide array of areas, including payday loans, firearm classifications, and construction standards, along with rules that have already been proposed, such as the Department of Agriculture’s (USDA) already threatened standards for what can be called an organic egg.

• The U.S. Supreme Court declined to rule on the merits in Zubik v. Burwell—a challenge from religious groups to an accommodation offered by the U.S. Department of Health and Human Services that allows groups to be exempt from the Affordable Care Act’s (ACA) contraception mandate as long as they inform their insurers or the government that they wished to be exempt—remanding the case to the U.S. Courts of Appeals for the Third, Fifth, Tenth, and D.C. Circuits, and encouraging those lower courts to consider whether a compromise on the issue is possible. The decision is seen by many as a sign that the Supreme Court is hamstrung without a ninth justice, and was praised by both opponents of the accommodation and the White House.

• The Department of Labor (DOL) issued a final rule that will dramatically increase the number of workers that must receive overtime pay, more than doubling the eligibility threshold of $23,660 that was established in 2004 – a move that the DOL lauded as a meaningful step in ensuring that all workers are fairly compensated, but which House Speaker Paul Ryan decried as “an absolute disaster” for the economy and predicted would lead many businesses to simply eliminate salaried positions.

• The Environmental Protection Agency (EPA) proposed to increase the amount of ethanol that must be blended into gasoline under its Renewable Fuel Standard Program to 18.8 billion gallons for 2017 – the move drew criticism from both biofuel supporters like the National Biodiesel Board (NBB), who urged the EPA to set a higher level closer to the 24 billion gallons authorized under the program, and from oil industry advocates like the American Fuel & Petrochemical Manufacturers (AFPM), who argued that the new targets go “beyond marketplace realities.”

• The California State Water Resources Control Board (SWRCB) suspended the statewide mandatory reduction in urban water use of 25% imposed last year by an executive order issued by Governor Jerry Brown—the Board’s move comes after a relatively wet winter and leaves water conservation to individual water districts, resulting in the complete elimination of conservation measures in some districts, while others will merely see reduced measures.

• The U.S. Court of Appeals for the District of Columbia announced that West Virginia v. Environmental Protection Agency, a challenge to the Environmental Protection Agency’s (EPA) Clean Power Plan, will be heard by the full Court en banc in September,  rather than by a three-judge panel in June as previously announced—a decision that comes after the U.S. Supreme Court stayed the rule in February, marking the first time the Court granted a request to stay a rule before it was reviewed by a federal appeals court.

• A bipartisan group of Senators and Congressmen announced that they are close to reaching a final compromise on legislation to reform the Toxic Substances Control Act (TSCA) that they believe is an improvement over H.R. 2576 and S. 697,  the TSCA reform bills passed by the U. S. House and Senate—a compromise that is supported by the Environmental Protection Agency (EPA), but that is opposed by key House Democrats, including the ranking member of the House Energy and Commerce Committee.

• The House Education and Workforce Committee approved a resolution that would block the Labor Department’s (DOL) persuader rule, which requires companies to disclose meetings with their legal advisors about blocking unionization by their workers. Democrats feel the DOL rule is essential to corporate transparency, while Republicans on the committee fear it could have a chilling effect on employers’ right to legal counsel.

• The Securities and Exchange Commission (SEC) announced that it will grant a whistleblower its third-largest reward ever of between $5 Million and $6 Million – emphasizing that employees are often the ones who are best-placed to discover securities violations, the SEC justified the decision as rewarding an insider tip that led to the discovery of violations that would have been “nearly impossible” for the SEC to detect on its own.

WHAT WE’RE READING THIS WEEK

• Susan Dudley of The George Washington University’s (GWU) Regulatory Studies Center and Melinda Warren of the Weidenbaum Center Forum at Washington University in St. Louis (WUSTL), released a study that analyzed regulatory spending from 1960 through 2017. They found that President Obama’s 2017 budget proposal spends $61 Billion compared to President Eisenhower’s $3 Billion, both denominated in 2009 dollars. In addition to agency spending, the report found large increases in the number of bureaucrats and noted that the study did not account for many other costs of regulation such as slower economic growth, higher prices, and lower wages.

• In a forthcoming article for the University of Pennsylvania Law Review, Christopher Slobogin, a professor at Vanderbilt Law School, argued that police agencies “should be governed by the same administrative principles that govern other agencies.” Slobogin wrote that requiring police agencies to adhere to administrative law principles and engage in a notice-and-comment or analogous process when creating policies that are “aimed at largely innocent categories of actors”—such as drug testing programs and data collection—would be an effective way to address Fourth Amendment concerns while still giving significant weight to police agency decision-making.

• A recent poll on the “New Digital Economy” conducted by the Pew Research Center found that Americans are fairly split on how to best regulate ride-hailing services like Uber. 35% of those polled who were familiar with the debate on the regulation of ride-sharing said they felt these services should have to follow the same rules for things like pricing and insurance access that are applied to traditional taxi companies, while 42% feel these rules should not apply, and 23% remain undecided. Among those who actually use these services, support for not applying taxi rules outweighs support for imposing the rules by a more than two-to-one ratio.