Week in Review

IN THE NEWS

• The U.S. Department of Homeland Security (DHS) waived 26 administrative and environmental protection laws to expedite construction of a wall along portions of the United States’ border with Mexico. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 permits DHS to waive any law to create barriers or roads necessary to prevent illegal immigration. The waiver permits DHS to ignore the provisions of the Endangered Species Act, Clean Water Act, and Administrative Procedure Act among other laws. DHS asserted that the “immediate and acute” need to build physical barriers along the southern border justified the waiver. The Center for Biological Diversity described the waiver as a “horrific step backwards” for conservation efforts in the region.
• The Biden-Harris Administration canceled another $9 billion in student debt for qualified public service workers, borrowers with permanent disabilities, and borrowers who have paid loans for more than 20 years. The announcement brought the total amount of debt forgiven by the Administration to $127 billion for almost 3.6 million borrowers. In his announcement, President Joseph R. Biden criticized the Supreme Court’s decision in Nebraska v. Biden, that blocked previous debt forgiveness efforts, and accused it of siding with “Republican elected officials and special interests.” U.S. Senator Bill Cassidy (R-La.) questioned the Education Department’s statutory authority to cancel debt and accused the Biden Administration of “illegally acting without congressional approval.”
• The U.S. Department of Health and Human Services (HHS) proposed a rule that would codify a framework for the care of unaccompanied minors in the custody of the Unaccompanied Children Program of the Office of Refugee Resettlement (ORR). HHS proposed standards for the “placement, removal, and release” of unaccompanied minors in ORR custody. The rule would also expand access to child advocates and interpreters and create procedural safeguards for children during ORR hearings. HHS Secretary Xavier Becerra praised the proposed rule for taking “significant steps to ensure that these vulnerable children are protected.”
• The U.S. Department of the Interior and the Bureau of Ocean Energy Management published a proposed offshore oil and gas leasing program that allows for the fewest offshore oil and gas lease sales in history. The program sets out the Interior Department’s plans for offshore oil and gas leases for the next five years. In its proposal, the Interior Department proposed permitting a maximum of three potential offshore oil and gas lease sales over the next five years, the fewest ever over a five-year span. Secretary of the Interior Deb Haaland stated that the program reflects the Biden-Harris Administration’s commitment to clean energy and the United States’s growing offshore wind industry.
• The U.S. Department of Energy issued a final rule that sets new energy efficiency standards under the Energy Policy and Conservation Act for consumer furnaces. The new standards require that all furnaces produced after 2028 use 15 percent less energy than the least efficient models on the market. The Energy Department estimated that the increased efficiency standards for furnaces will reduce annual household utility costs by over $1 billion. Secretary of Energy Jennifer Granholm reiterated that the Energy Department would continue “reducing energy use and slashing harmful pollutants in homes across the nation.” The Vice President of the American Gas Association, Richard Meyer, argued that the new rule would require costly retrofitting by consumers.
• Nebraska Governor Jim Pillen approved emergency regulations for the Let Them Grow Act, which target gender-affirming care of minors. The regulations require that minors receive at least 40 hours of “gender-identity-focused” therapeutic treatment before receiving puberty-blocking medications or hormone therapy. In addition, the regulations include an informed consent requirement for the treatments followed by a mandatory waiting period before the treatments can be delivered. Although Pillen praised the regulations for protecting Nebraska’s youth from treatments “that could result in irreparable harm,” opponents of the regulations are concerned with the stringency of the guidelines.
• California Governor Gavin Newsom vetoed a bill which would have allowed workers to receive unemployment benefits if they were on strike for at least two weeks. Labor advocates contend that Newsom’s veto benefited corporations but harmed workers because the desired unemployment benefits would require California to increase taxes on employers. Though Newsom reaffirmed his respect for workers and appreciation for collective action, he asserted that “now is not the time to increase costs or incur this sizable debt.”
• The U.S. Forest Service proposed a rule to streamline enforcement of criminal penalties on its roads and trails by empowering its law enforcement officers to issue notices of violations, rather than requiring regional directors to authorize penalties for specific times and places. The Service noted an increase in incidents of theft, stalking, and harassment, as well as a “significant volume” of drug possession violations. Due to the recent severity and proliferation of wildfires, the rule would also ban possession and use of fireworks year-round, rather than in select high-risk areas or seasons.
• The U.S. Consumer Product and Safety Commission (CSPC) recalled 300,000 one-wheel electric skateboards produced by Future Motion, a major American electric skateboard manufacturer. The recall detailed how failures in the boards’ self-balancing functions reportedly resulted in four deaths. The CPSC noted that Future Motion had received reports of deaths and serious injuries including concussion, paralysis, and bone fractures since 2019. In 2022, Future Motion refused the CPCS’s request to recall the product calling its safety claims “unjustified and alarmist.”

WHAT WE’RE READING THIS WEEK

• In a CATO Institute article, Victoria Litman, an adjunct professor at the Roger Williams University School of Law, argued that the federal government should minimize its regulation of cannabis as many states and the federal government move toward cannabis legalization. Litman recognized that federal action is necessary to remove cannabis from the Controlled Substances Act and thereby legalize it at the federal level. Litman noted, however, that federal cannabis regulations may violate constitutional principles of federalism. Instead, federal regulation of cannabis should recognize and support robust, existing state regulatory systems, Litman concluded.
• In a forthcoming article in the Harvard Environmental Law Review, Robert Glicksman, and Johanna Adashek, professors at the George Washington University Law School, argued for the U.S. Environmental Protection Agency (EPA) to exercise broad emergency powers under § 303 of the Clean Air Act to regulate toxic airborne microplastics, known as PFAS. Glicksman and Adashek explained that the harms of PFAS exposure, such as risks of cancer and reproductive problems, qualify PFAS for § 303 regulation. Glicksman and Adashek concluded by arguing that EPA’s statutory authority to regulate PFAS is clear enough to withstand a constitutional challenge, even under the major questions doctrine.
• In a report released by the Center for American Progress, Mariel Lutz, a research associate on the Conservation Policy team at American Progress, and Jenny Rowland-Shea, the director of the Public Lands team at American Progress, explored how many large oil and gas companies in the United States regularly violate labor and environmental standards and take advantage of the dated federal gas and oil leasing systems. Lutz and Rowland-Shea argued that the U.S. government can tackle this behavior by creating “strong regulations that hold the industry accountable.” Lutz and Rowland proposed that, for example, the Interior Department could disqualify companies who perform certain “bad-act” behaviors from using U.S. land for oil and gas exploration.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Joseph A. Ingrao, currently a judicial law clerk, argued that traditional utility ratemaking practices have a disproportionate impact on communities of color. Ingrao explained that traditional “cost-of-service” ratemaking allows utility providers to charge rates according to their costs of operation. Ingrao argued that this system of ratemaking encourages the inefficient operation of utilities and energy overproduction. Ingrao alternatively proposed a pay-for-performance system that permits states to adjust utility compensation plans based on specified performance standards—a system that would ultimately reduce utility bills for communities of color.