Week in Review

IN THE NEWS

• The U.S. District Court for the District of Columbia ruled that the U.S. Army Corps of Engineers must redo its environmental analysis for certain sections of the Dakota Access pipeline. The court found that the Corps’ environmental analysis did not fully comply with the National Environmental Policy Act because it did not adequately consider how a possible spill could impact “fishing rights, hunting rights, or environmental justice.” Dave Archambault II, chairman of the Standing Rock Sioux Tribe, which has been trying to block the pipeline, hailed the decision as “a major victory.” The court will determine later whether the pipeline must pause operations while the army redoes its environmental analysis.

• The U.S. Court of Appeals for the Ninth Circuit upheld a lower court’s injunction against President Donald Trump’s travel ban executive order. The Ninth Circuit refused to reinstate the executive order, which would have temporarily banned the issuance of visas to citizens of six majority-Muslim countries, because the President exceeded the power delegated to him in the Immigration and Nationality Act. In response to this ruling, the Department of Justice sent a letter to the Supreme Court, which has not yet agreed to hear the litigation over the travel ban, and asked to update its briefings to the Court since the Ninth Circuit’s decision was based on immigration laws rather than the Constitution, as was the Fourth Circuit’s decision.

• The U.S. Supreme Court unanimously ruled that companies with products that are highly similar to other products already on the market will not have to wait an additional six months after U.S. Food and Drug Administration (FDA) approval before launching their new products. The biomedicine company Sandoz had petitioned the Court arguing that a wait following FDA approval created six months of additional exclusivity for the original product already on the market. Carol Lynch, Global Head of biopharmaceuticals for Sandoz, reportedly said in a statement that the Court’s ruling will “help expedite patient access to life-enhancing treatments.”

• The U.S. Court of Appeals for the District of Columbia Circuit held that the Federal Communications Commission (FCC) cannot cap rates for inmates’ intrastate telephone calls. The case,  brought by five providers of inmate payphones along with state and local officials, contested the FCC’s “design to expand the FCC’s regulatory authority.” FCC Chairman Ajit Pai praised the decision as matching his own views. On the other hand, FCC Commissioner Mignon Clyburn called the ruling “deeply disappointing,” noting the “pain, anguish and financial burden” that accompanies contacting inmates.

• The U.S. Environmental Protection Agency (EPA) delayed implementation an Obama-era chemical safety regulation until at least February of 2019. The rule, which was finalized in December, heightens safety requirements at chemical production plants. EPA postponed implementation of the rule to “fully evaluate the public comments” on and “consider other issues” with the rule.

• Eleven state attorneys general joined the Natural Resources Defense Council and three other environmental groups in a lawsuit challenging the Department of Energy’s (DOE) decision to delay implementation of energy efficiency regulations. The regulations DOE delayed include test procedures for walk-in freezers and conservation standards for ceiling fans. Challengers have argued that DOE’s lack of action on the rules, which were projected to save consumers and businesses $11.6 billion over 30 years, violated the agency’s error-correction regulation under the Energy Policy and Conservation Act.

• In what U.S. Secretary of Education Betsy DeVos called “a regulatory reset,” the U.S. Department of Education said it will postpone financial aid regulations published during the Obama Administration. The now-postponed regulations would have introduced ways “to protect student loan borrowers from misleading, deceitful, and predatory practices.” The Education Department argued that “justice requires” delaying the regulations because the regulations are currently being fought in federal court. The Department also argued that failing to postpone the regulations could result in “substantial costs” for institutions affected by the regulations and that the postponement will give the Department time “to review and revise” the regulations.

• The U.S. Department of the Interior’s Bureau of Land Management issued a notice postponing for 2 years the date by which energy operators need to comply with its waste prevention rule that limited methane burned off from drilling operations on federal and tribal lands. This notice follows an industry petition for judicial review of the rule and an unsuccessful attempt by congressional Republicans to repeal the rule under the Congressional Review Act.

• In response to a January Executive Order requiring the federal government to minimize the economic and regulatory burdens of the Patient Protection and Affordable Care Act, the U.S. Department of Health and Human Services published a request for comments on efforts to create a more patient-centered health care system.

• The U.S. Department of the Treasury requested public comment on existing “regulations that can be eliminated, modified, or streamlined in order to reduce burdens.” The request promotes President Donald Trump’s Executive Order 13,771, which calls for agencies to remove two regulations for every new one released. Pursuant to Executive Order 13,777, which aims to help accomplish the goals of Executive Order 13,771, the Treasury is creating a task force which will “evaluate existing regulations and make recommendations” for “possible repeal, replacement, or modification.”

WHAT WE’RE READING THIS WEEK

• In an article, Nellie Liang, the Miriam K. Carliner Senior Fellow in Economic Studies at the Brookings Institution, assessed a U.S. Department of the Treasury report that offers suggestions for how Congress and regulators can reduce financial regulations to benefit banks and borrowers. Liang said that the proposal to loosen regulations on smaller banks is welcome because “community banks can and do fail without risking the stability of the broader financial system.” She disagreed, however, with proposals to relax capital requirements for larger financial institutions because that “would make the system more prone to another financial crisis.”

• In a recent article in the North Carolina Law Review, William S. Dodge, professor at University of California, Davis, School of Law, examined a presumption that federal laws apply outside of a specified geographic area and under which step of the Chevron framework, which requires Courts to defer to reasonable agency interpretation of statutes, this presumption should be analyzed. Dodge argued that courts should defer to an agency’s reasonable interpretation of the geographic scope of a statute because agencies, rather than courts, are likely to have the better understanding of the purpose of a statute, regulatory options, and any conflicts with foreign interests.

• In an essay for The Hill, former Chief of Staff for the White House Office of National Drug Control Policy Regina LaBelle discussed the U.S. Food and Drug Administration’s (FDA) decision to take the prescription opioid Opana ER off the market. LaBelle argued that “this action by itself is not the solution to the opioid epidemic.” She called upon “FDA and other HHS agencies such as the Substance Abuse and Mental Health Services Administration” to take other steps to improve overdose prevention.