The Regulatory Week in Review: August 26, 2016

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Texas judge blocks bathroom guidance, NLRB rules that graduate students at private universities can unionize, and more…

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IN THE NEWS

  • In a 3-1 decision, the National Labor Relations Board (NLRB) held that “student assistants who have a common-law employment relationship with their university are statutory employees” under the National Labor Relations Act (NLRA) and are therefore able to unionize. The case involved an attempt by the United Auto Workers’ (UAW) to organize graduate students at Columbia University, and overruled a 2004 NRLB decision concerning students at Brown University that the majority criticized as having “deprived an entire category of workers of the protections of the Act, without a convincing justification in either the statutory language or the policies of the Act.”
  • President Obama designated an 87,500-acre monument in Maine in honor of the centennial of the National Park Service, which will manage the land. The Administration hailed the designation, stating that it will “permanently protect significant natural, scientific, and historic and cultural resources, wildlife habitat, and one of the most pristine watersheds in the northeast,” but Representative Rob Bishop (R-Utah), Chairman of the House Committee on Natural Resources, blasted the move by stating that it “subvert[s] the will of Maine’s citizens and leaders” and should have been accomplished through “the public process and not behind closed doors.”
  • The Obama Administration finalized a rule that will require any company seeking a government contract worth more than $500,000 to report past labor law violations prior to securing the contract. Promulgation of this rule was ordered in 2014’s Fair Pay and Safe Workplaces Executive Order, and it has already proven to be polarizing, with Secretary of Labor Thomas Perez praising it as a means of weeding out “[c]ontractors that illegally cut corners at the expense of their workers,” and pro-business groups like the National Association of Manufacturers claiming the rule could cause “hardworking, responsible manufacturers [to] lose out on valuable job-creating work with the federal government for no good reason.”
  • In a brief filed in the U.S. Court of Appeals for the Tenth Circuit, a group of former U.S. Department of the Interior (DOI) officials—who served in the Clinton, George W. Bush, and Obama administrations—criticized U.S. District Court of Wyoming Judge Scott W. Skavdahl’s order earlier this summer that invalidated a rule instituting safety requirements for hydraulic fracturing, or “fracking,” on public lands. Judge Skavdahl had held that the Bureau of Land Management (BLM) lacked authority to promulgate the requirements, but the former DOI officials argued that “the BLM has for decades” regulated “oil and gas drilling activities,” and that the “rules are simply the latest manifestation of this well-established authority.”
  • In a move that would impact the popular Hawaiian tourism activity of swimming with dolphins, the National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Association (NOAA) proposed a rule that would prohibit swimming with or approaching within 50 yards of a Hawaiian spinner dolphin, a regulation that NMFS believes will protect the dolphin population from human disturbance while still allowing a viable tourism industry, but that dolphin tour operators fear will spell the end of dolphin swimming in Hawaii.
  • The National Labor Relations Board (NLRB) ruled 3-1 against supermarket chain King Soopers, holding that the company must fully compensate—including for job hunting costs—employees who have been discriminated against due to union activities. The decision, which marks the first time the NLRB has ordered an employer to reimburse employees for costs incurred while searching for work, is supported by the AFL-CIO and other major unions, who filed amicus briefs in support of the position that was proposed by the NLRB’s general counsel and adopted by the board.
  • The Consumer Financial Protection Bureau (CFPB) ordered Wells Fargo to pay a penalty of $3.6 million for illegal student loan practices—including illegal late fees, failure to provide information critical to the management of loans, and failure to update inaccurate information sent to credit-reporting companies—and also ordered Wells Fargo to pay $450,000 to consumers of their loans and to improve its student loan management practices.

WHAT WE’RE READING THIS WEEK

  • In a study published in the American Journal of Public Health, a group of researchers at the University of California, Berkeley School of Public Health—led by Professor Kristine A. Madsen and Jennifer Falbe—examined the impact of the soda tax enacted in the city of Berkeley in March 2015. The researchers found that, while consumption of soda and other sugary beverages has increased by 4 percent since 2015 in Oakland and San Francisco, consumption of the beverages in Berkeley’s low-income neighborhoods decreased by 21 percent during the same period, suggesting that the tax had its intended effect of curbing soda consumption.
  • The U.S. Environmental Protection Agency (EPA) recently released a report that evaluated the Railroad Commission of Texas’ (RRC) Underground Injection Control (UIC) program, which oversees oil and gas injection wells containing toxic waste from drilling operations across Texas, for Fiscal Years 2010 through 2015. The EPA expressed concern about the “level of seismic activity during 2015 in the Dallas/Ft. Worth area because of the potential to impact public health and the environment.” Luke Metzger, Director of Environment Texas, reportedly stated that the “EPA should insist the [Railroad Commission] accept the scientific evidence and take action to protect Texans from earthquakes,” but the RRC reportedly responded that it already “has in place some of the most stringent rules on disposal wells.”
  • Writing for The Hill, Nikki Fortunato Bas of the Partnership for Working Families argued that there is room for improvement in the plans for infrastructure development put forth by the presidential candidates from both major parties. Bas suggested that, rather than just laying out plans for monetary investment, candidates’ infrastructure plans should focus on community development by engaging with community members and by targeting infrastructure development in a way that will, among other things, create job opportunities for members of the community.