Week in Review

IN THE NEWS

• The Environmental Protection Agency (EPA) announced a proposal that would replace all of the lead water pipes in the United States within the next 10 years. With about nine million pipes to remove and replace, EPA estimated that this project would cost between $20 billion to $30 billion. The rule would also lower the allowable amount of lead in drinking water from 15 parts per billion to 10 parts per billion. These proposed actions would advance the Biden Administration’s commitment to protect communities from lead exposure and promote safer drinking water.
• The U.S. Court of Appeals for the Eleventh Circuit reversed a lower court ruling that struck down Georgia’s statewide elections for its five-member commission regulating utilities. The lower court found that the system illegally diluted Black votes in the state. U.S. Circuit Judge Elizabeth Branch wrote for the unanimous panel that “Georgia chose this electoral format to protect critical policy interests and there is no evidence, or allegation, that race was a motivating factor in this decision.” The Eleventh Circuit, however, reasoned that the lower court’s ruling would require replacing Georgia’s entire election system and highlighted that it has “never gone this far” for a Voting Rights Act remedy.
• EPA issued a final rule establishing a legal limit for the residue of the pesticide tolpyralate in barley, wheat, and certain livestock products. Tolpyralate is an herbicide used to control the growth of weeds without harming crops. The agency considered the risks of this herbicide, including its potential to lead to cancer and to cause adverse health effects on children. EPA concluded that residue from tolpyralate was unlikely to harm the general population and determined the legal limit based on the low risk of the substance.
• The Board of Governors of the Federal Reserve System issued a final rule setting capital requirements for banks engaged in insurance activities. To satisfy their capital requirements, banks must hold a certain amount of assets aside to mitigate the risk stemming from their activities. The rule creates a framework, dubbed the Building Block Approach, which will place a bank’s subsidiaries into groups based on each subsidiary’s business type and will apply different capital requirements to each group based on the unique risks faced. According to the Federal Reserve, this new system will “maintain the regulatory framework” while reducing the regulatory burden.
• The Centers for Medicare and Medicaid issued a final rule updating payment systems and reporting requirements for several Medicare programs, including the Medicare Hospital Outpatient Prospective Payment System. The rule refines public posting requirements for hospitals to promote price transparency and finalizes a correction to the standards governing the designation and certification of rural emergency hospitals. In addition, the rule implements new personnel qualifications for therapists and counselors in community mental health centers.
• The Internal Revenue Service (IRS) issued a notice of proposed rulemaking that would update regulations concerning the tax treatment of transactions between partnerships and related persons, such as individuals who hold an interest in the partnership’s profits. Currently, IRS regulations treat these transactions as occurring between the related person and the members of the partnership individually. More recent congressional legislation, however, shows intent to view each partnership as an individual entity, not as a combined set of partners. The related person would be treated as related to the partnership, not simply related to a partner. The updated regulations would conform to current legislation by treating each partnership as a single entity.
• The National Labor Relations Board extended the effective date of its final rule for determining joint employer status under the National Labor Relations Act. The rule clarifies the standard for finding that two employers are joint employers of a given employee and lowers the threshold to prove this employer status. The agency stated that the goal of this rule is to align the agency’s joint employer standard to “established common-law agency principles,” particularly the employer’s control over its employees.
• The U.S. Fish and Wildlife Service announced a final rule to list the North American wolverine as a threatened species under the Endangered Species Act. This rule comes in response to scientific findings that climate change is likely to destroy the wolverine’s snowy habitat. The agency’s Pacific Regional Director Hugh Morrison explained that this classification “will help to stem the long-term impact and enhance the viability of wolverines in the contiguous United States.”

WHAT WE’RE READING THIS WEEK

• In a recent article, David Pimentel, a law professor at the University of Idaho College of Law, argued that vague and broadly written child neglect laws have forced parents to become overprotective, “helicopter parents.” Pimentel noted that some states have responded to this threat by enacting legislation that protects “reasonable childhood independence.” Pimentel reviewed this legislation and crafted principles that future legislation should embrace, such as affirmatively listing activities that a child can do independently that would not constitute neglect. Pimentel concluded that his recommendations can lead to laws that protect parents and the choices they make in raising their children.
• In a recent paper, Mark Klamberg, a professor at Stockholm University, examined methods of regulating the use of artificial intelligence in the military. Klamberg proposed three ways to cap the use of military artificial intelligence, which includes lethal autonomous weapons systems that act without a human operator. Klamberg suggested that regulators apply existing rules in international humanitarian law, add new artificial intelligence-specific regulations to existing rules of military engagement, or generate a new regulatory framework through an international treaty. Klamberg emphasized that any regulation should be based on the premise that combatants do not have an unlimited right to injure the enemy.
• In a forthcoming article in the Journal of Economic Perspectives, Lucas Davis, a professor at the University of California–Berkeley, Catherine Hausman, a professor at the University of Michigan, and Nancy Rose, a professor at the Massachusetts Institute of Technology explored the difficulties posed by renewable electricity transmission. Davis, Hausman, and Rose explained that although clean energy is cheaper than ever, the best renewable energy sources are only located in specific regions of the United States. This limited access to renewables, they argued, results in major technical and regulatory challenges when transmitting clean electricity to end users throughout the country. Davis, Hausman, and Rose proposed enhancing federal authority to build new transmission lines, upgrading high-voltage lines in existing transmission projects, and increasing investment in battery storage facilities.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Herbert Hovenkamp, a law professor at the University of Pennsylvania Carey Law School, argued that antitrust remedies must reflect the underlying goal of antitrust law—to make markets more competitive. Hovenkamp explained that in some cases, antitrust remedies, such as injunctions and company breakups, have either done more harm than good or nothing at all. Instead, Hovenkamp suggested that, as an alternative remedy, courts could require platforms to share the data they collect with competitors. Hovencamp argued that this would increase competition in the market and preserve the platform’s value to consumers.