Week in Review

IN THE NEWS

• The U.S. Office of Personnel Management released an unpublished final rule strengthening job protections for federal employees by providing that competitive service employees moved to excepted service positions fully retain their rights. The also rule clarifies the definition of employees excepted from civil service protections, and sets up an appeals process for employees involuntarily transferred out of the competitive service. This rule appears to respond to presidential candidate Donald Trump’s promises to reclassify career public servants as political appointees, which would make it easier for a sitting president to dismiss them. President Joe Biden said that the rule was a “step toward combating corruption and partisan influence.”
• Michigan Governor Gretchen Whitmer signed the Michigan Family Protection Act into law. The act legalizes and provides for the regulation of surrogacy, and guarantees equal rights to children born by surrogacy and to LGBTQ+ families. Previously, Michigan was the only state to prohibit all surrogacy contracts. Governor Whitmer stated that “decisions about if, when, and how to have a child should be left to a family, their doctor, and those they love and trust, not politicians.”
• The U.S. Department of Energy finalized a rule revising the calculation of petroleum-equivalent fuel economy for vehicles. The rule refines the method used to determine the fuel economy of alternative fuel vehicles, such as hybrids and electric vehicles. By issuing this rule, the Energy Department seeks to promote fuel efficiency in motor vehicles and ease the transition to alternative energy.
• Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas issued a preliminary injunction blocking new regulations that would broaden the geographies in which lenders would be required to extend loans and other services to low-income Americans. The new rules would modernize how regulators enforce the Community Reinvestment Act of 1977 (CRA), a fair lending law that ensures banks lend to their local communities. Judge Kacsmaryk agreed with the business and banking groups that sued the agencies that issued the rule, finding that the new regulations went beyond what the CRA allowed.
• The new fee schedule for services from the United States Citizenship and Immigration Services office (USCIS) took effect on April 1st. USCIS last raised its fees in 2016. Among other things, the changes include an increase in the fee for an H-1B visa petition from $460 to $780 and a new $600 asylum program fee to be paid by companies when filing employment petitions. USCIS stated that “the fee schedule from 2016 no longer covers operational costs to timely adjudicate USCIS immigration and naturalization benefits.” Several attorneys, however, warned that the new fees may be unaffordable for businesses and workers.
• The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service announced three final rules modifying aspects of the Endangered Species Act (ESA). The final rules affect ESA Section 4, which oversees the classification of species and habitats, and ESA Section 8, which governs how federal actions that are likely to adversely affect species and habitats are reviewed. The regulations also reinstate FWS’s “blanket rule” under Section 4(d), which automatically prohibits unauthorized actions that could harm, harass, pursue, hunt, shoot, wound, kill, trap, capture or collect, plants or animals listed as threatened species.
• The U.S. Department of Agriculture issued a rule containing revised guidelines for controlling retained water in raw meat and poultry. The guideline addresses concerns about excessive water in meat and poultry products, which may affect their quality, safety, and value. The agency emphasized the need for accurate labeling to maintain industry standards and increase consumer confidence in these products.
• The U.S. Patent and Trademark Office (USPTO) issued a notice of proposed rulemaking to increase and introduce new patent fees. The USPTO explained that the fee adjustments are needed to cover the administrative costs of its activities. The proposed revised fee structure may also help the USPTO adjust to high inflation. The USPTO estimates that the applications to the patents program will grow by 2.1 percent and the program will cost $3.973 billion in 2025.
• The Colorado Department of Early Childhood adopted new regulations to enhance the quality of Colorado’s Universal Preschool Program, which provides all children with up to 15 hours of free preschool in their year before kindergarten. Under these regulations, Colorado will phase in a 20 student class size cap for most universal preschool providers over the next two years and preschools in this program will have to use curriculums from a state-approved list.

WHAT WE’RE READING THIS WEEK

• In a forthcoming article in the Georgetown Environmental Law Review, Richard L. Revesz, the AnBryce Professor of Law at New York University Law School, and Max Sarinsky, regulatory policy director at the Institute for Policy Integrity, propose that federal agencies preemptively address challenges under the major questions doctrine by drawing comparisons to prior agency actions. The major questions doctrine calls for skepticism when federal agencies enact novel and significant regulations, and has been used by the U.S. Supreme Court. Revesz and Sarinsky suggest that agencies accomplish this preemption by incorporating these “regulatory antecedents” throughout the rulemaking process. In a related post in the Yale Journal on Regulation Notice & Comment blog, Sarinsky praised the U.S. Environmental Protection Agency’s recent pollution standards as an example for insulating rules from judicial challenges.
• In a forthcoming article in the Columbia Journal of Environmental Law, Katya S. Cronin, an associate professor at the George Washington University Law School, explained the pervasiveness of per- and polyfluoroalkyl substances (PFAS) in our food systems and proposed a solution to increase the effectiveness of the food safety regulatory system. PFAS are linked to numerous health issues, including thyroid cancer, which Cronin argued makes them an immediate public health concern. Instead of addressing this issue via traditional, slow approaches to regulation, such as a regulatory overhaul or PFAS-specific legislation, Cronin suggested using the U.S. Environmental Protection Agency’s current regulatory authority over pesticides to target PFAS. Cronin maintained that this approach to the problem would protect consumers now while also allowing long term reform.
• In a forthcoming article in the Connecticut Law Review, Stephen Clowney, a law professor at University of Arkansas School of Law, analyzed the contributions rural communities offer to America, providing insights that could inform policymakers on crafting more effective rural policy and investment strategies. Clowney found that most defenses of rural communities are weaker than proponents would have hoped. He claimed the strongest argument, however, is that rural amenities cannot be duplicated or reproduced in cities or the suburbs, such as scenic landscapes, mountains, hiking trails, waterways, forests, and historic locations. To revitalize these communities, Clowney suggested that Congress should set national policy goals for rural areas and delegate decision-making authority and funding to individual states to implement these goals effectively.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Jonathan Wood, the Vice President of Law & Policy at the Property and Environment Research Center, discussed a 2022 federal district court decision voiding several Endangered Species Act regulations issued by the Trump Administration. Wood argued that the decision, rather than signaling a victory for environmental advocates, in fact carried ominous implications for the future. The court, Wood contended, asserted that it had broad discretion to nullify these regulations because the new administration had intentions contrary to the administration that enacted them. This exercise of “raw power,” Wood warned, could open the door for future courts to unilaterally nullify Biden Administration regulations.