The Regulatory Week in Review: June 10, 2016

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TSCA overhaul passes the Senate, a challenge to agency rulemaking power passes the House, and more…

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IN THE NEWS

  • In a move aimed at limiting agencies’ rulemaking power, the House Judiciary Committee passed the Separation of Powers Restoration Act, a law that would overrule the Supreme Court’s 1984 Chevron decision that established deference to agency interpretations of ambiguous statutes, and would instead require courts to review all legal questions de novo—Rep. John Ratcliffe (R-TX) argued that granting such deference is like allowing bureaucrats to “grade their own papers,” while Rep. John Conyers (D-MI) countered that all that hampering the rulemaking process for regulations about things like air, water, and food does is put Americans at risk.
  • The D.C. Circuit Court of Appeals rejected a challenge by four states to a Nuclear Regulatory Commission (NRC) rule permitting spent fuel rods to be stored indefinitely at nuclear power plants—New York, Vermont, Connecticut, and Massachusetts argued that the NRC had violated its obligations under the National Environmental Policy Act (NEPA) by failing to consider alternatives and making unreasonable assumptions regarding environmental impact, but the court noted that the judiciary’s role is limited when applying arbitrary and capricious review.
  • The United States and the European Union agreed to a pact that is intended to prevent EU regulators from blocking transatlantic data transfers by American companies in exchange for the U.S. agreeing to adopt measures to protect the privacy of EU members’ personal data—while the pact will prevent the restriction of data transfers in the short-term, EU data protection supervisor, Giovanni Buttarelli, has been one of many to express doubt as to the pact’s ability to withstand a legal challenge.
  • The Department of Labor (DOL) proposed two new rules aimed at improving the safety of miners, covering both examinations of mines prior to the beginning of work, and exposure of miners to harmful exhaust—the Mine Safety and Health Administration (MSHA) stated that effective examinations are crucial to preventing injuries and improving safety conditions, citing data that shows that between January 2010 and December 2015, more than 60 percent of miner deaths resulted from infractions of the “Rules to Live By” standards, which are known to be common causes of mine accidents.  
  • The U.S. Environmental Protection Agency (EPA) released its first-ever technical guidance on environmental justice, providing EPA analysts with recommendations for how to incorporate environmental justice concerns—which the EPA defines as potential disproportionate impacts on minority, low-income, and indigenous populations—into the rulemaking process.  
  • Judge Andrew Hanen of the Southern District of Texas decided to stay his order requiring Department of Justice (DOJ) lawyers to take ethics classes and turn over documents on tens of thousands of immigrants who were granted deferred action. The stay will prevent the order from going into effect until after the DOJ has had an opportunity to make its case against it in August.

WHAT WE’RE READING THIS WEEK

  • Lin-Manuel Miranda, the creator and star of the hit musical “Hamilton,” wrote an op-ed for the New York Times bemoaning the way the widespread use of “ticket bots”—automated software used by third-party brokers to buy tickets as soon as they are released online—has driven up the prices of tickets to “Hamilton” and other popular entertainment events. Miranda urged the New York State Assembly to pass legislation, similar to that already passed by the New York State Senate, that would impose stricter regulations on the ticket resale market and create criminal penalties for repeat offenders.