The Regulatory Week in Review: July 22, 2016

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The DOJ asks the Supreme Court to rehear United States v. Texas, the Fifth Circuit rules against Texas’s voter ID law, and more…

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IN THE NEWS

  • In the aftermath of last month’s 4-4 U.S. Supreme Court decision that left in place a lower court ruling blocking Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)—President Obama’s executive action on immigration that would allow as many as five million undocumented immigrants who are the parents of U.S. citizens or lawful permanent residents to request work permits and temporary relief from deportation—the U.S. Department of Justice (DOJ) has asked the Supreme Court to  rehear the case once a ninth Justice has been confirmed by the U.S. Senate, arguing that it would be consistent with past Supreme Court practice for the Court to revisit a case in which the Justices issued a tied decision due to a vacancy.
  • The U.S. Court of Appeals for the Fifth Circuit ruled that Texas’ law requiring voters to present a photo ID is discriminatory, thereby violating the Voting Rights Act. The ruling ordered the U.S. District Court for the Southern District of Texas to develop an appropriate remedy, stressing the importance of fashioning a short-term solution that addresses the discriminatory impact of the law without disrupting the upcoming general election—the district court will revisit the law after the election to determine whether the legislature had a discriminatory intent in passing the law. The decision comes shortly after a preliminary ruling on Wisconsin’s voter identification law that will allow voters to sign an affidavit in place of showing a photo ID.
  • Attorney General Loretta Lynch announced that the U.S. Department of Justice (DOJ) had filed lawsuits intended to block two major health insurance mergers—Anthem’s acquisition of Cigna, and Aetna’s acquisition of Humana. In her briefing, Lynch reportedly highlighted the fact that these mergers would further consolidate power in the insurance industry by reducing the number of major insurers from five to three—both Anthem and Aetna released statements following Lynch’s announcement in which they pledged to fiercely defend their respective mergers in court.
  • Canada’s Minister of Environment and Climate Change, Catherine McKenna, reportedly announced that Canada will implement a national tax on carbon—McKenna has described carbon pricing as “one of the most efficient ways to reduce emissions,” and one that capitalizes on the “emerging low-carbon economy.” McKenna’s statement came shortly after 20 Canadian companies joined the Carbon Pricing Leadership Coalition (CPLC), an organization that leverages business and government entities to fight climate change.
  • The U.S. Department of Education (DoED) announced a series of new policies aimed at better protecting students who use loans to fund their education—included in the 56-page memo are directions for the Federal Student Aid (FSA) office to implement various tools to improve communications with borrowers, including rebranding FSA communications materials to match the DoED style.
  • Despite the recent announcement that Volkswagen had agreed to a $14.7 billion settlement with the United States arising out of allegations made by the U.S. Environmental Protection Agency (EPA) that Volkswagen cheated on diesel emissions tests, litigation over the emissions scandal continues, with three states—Maryland, Massachusetts, and New York—filing lawsuits against Volkswagen this week alleging that, contrary to Volkswagen’s contention, the company’s chief executive was complicit in the scandal, and that the cheating was a “result of a willful and systematic scheme of cheating by dozens of employees at all levels of the company.”
  • Following years of negotiations over the liability of Enbridge, a Canadian energy company, in the 2010 oil spill in Michigan’s Kalamazoo River—in which a pipeline rupture caused the largest inland oil spill in American history—the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice (DOJ) announced that the company had agreed to a $177 million settlement with the federal government, including a $62 million fine—which has been criticized by members of the environmental community as insufficient to deter future accidents—as well as funds to implement a program to prevent future oil spills.

WHAT WE’RE READING THIS WEEK

  • The Environmental Protection Agency (EPA) and the Department of Transportation (DOT) jointly released a draft technical report that assessed whether fuel efficiency standards for car model years 2022-2025 should be changed—the agencies concluded that, despite the 54.5 mile-per-gallon (mpg) standard that was touted as “groundbreaking” by the Obama Administration in August of 2012, it is more likely that car manufacturers will achieve a fuel efficiency standard of 50.8 mpg or, at best, 52.6 mpg, due in part to increased sales of SUVs and lower-than-expected fuel prices.
  • In an essay for The Hill, U.S. Representatives Kevin Brady (R-Texas) and Richard Neal (D-Mass.) argued for replacing the Windfall Elimination Provision (WEP), an amendment to the Social Security Act that reduces payments for people whose careers involved work in both the public and private sectors. In place of the WEP, which Reps. Brady and Neal feel relies on an arbitrary calculation, the pair advocate for what they see as a more transparent and fair system in which benefits reflect the percentage of a person’s career spent in Social Security covered jobs.
  • Writing for the New York Times, journalist Coral Davenport examined how states are preparing to comply with the Clean Power Plan—the Obama Administration rule that aims to regulate greenhouse gas emissions from power plants under the Clean Air Act—despite the fact that the plan has been stayed by the U.S. Supreme Court. Davenport notes that among the states considering developing compliance programs are not just Democratic-led states with climate polices already in place, such as New York and California, but also states that were among the 27 to sue the U.S. Environmental Protection Agency (EPA) over the plan.