Week in Review

IN THE NEWS

• The U.S. Senate released a Discussion Draft of its Republican Health Care Bill, which aims “to fix” the Patient Protection and Affordable Care Act. The Discussion Draft, entitled the “Better Care Reconciliation Act of 2017,” amends the American Health Care Act; it seeks to “stabilize collapsing insurance markets” and increase “the affordability of health insurance.” In its provisions, the Discussion Draft removes the individual mandate and the employer mandate, and it also prevents states from using federal dollars to make “payments to a prohibited entity,” which includes certain tax exempt organizations and organizations “engaged in family planning services.”
• The Federal Trade Commission (FTC) announced that it has authorized legal action in an attempt to prevent a planned merger between two daily fantasy sports websites, DraftKings and FanDuel. The FTC said this merger, which would give the companies control over 90 percent of the market, “would deprive customers of the substantial benefits of direct competition.” A judge for the U.S. District Court for the District of Columbia reportedly approved a temporary halt to the merger.
• The Administrative Conference of the United States adopted two recommendations that are expected to improve government transparency, reduce administrative costs and litigation, and streamline processes. The first recommendation, Adjudication Materials on Agency Websites, provides government agencies with guidance on making adjudicatory materials more readily accessible on their websites, and the second, Negotiated Rulemaking and Other Options for Public Engagement, advises agencies on when to use negotiated rulemaking and how to use it effectively.
• President Trump nominated Republican Marvin Kaplan, currently counsel for the Occupational Safety and Health Review Commission, to the National Labor Relations Board. If confirmed by the Senate, Democrats and Republicans would each possess two seats on the five-member board, with the fifth seat still vacant.
• Ajit Pai, Chairman of the Federal Communications Commission (FCC), expressed plans to name Rosemary Harold chief of the FCC’s Enforcement Bureau. The Bureau helps to implement the Communications Act, the rules of the FCC, “and various licensing terms and conditions.” Harold, who is a partner at a law firm, has a history of working with the FCC.  Pai noted the “critical role” the Bureau plays “in enforcing the law to protect customers and support competition in the communications marketplace.”
• The White House Office of Information and Regulatory Affairs reportedly reviewed a rule on beryllium exposure in the workplace, which prompted Richard Trumka, president of AFL-CIO, to make clear his opposition to any “roll back” of an earlier Obama Administration rule issued on beryllium. In March, the U.S. Department of Labor had delayed the effective date of the Obama era rule. Trumka admonished that, “More working people will die if the Trump administration rolls back OSHA’s beryllium rule.”
• Fifteen state attorneys general joined environmental groups in a lawsuit in response to the U.S. Environmental Protection Agency’s (EPA) decision to delay implementation of Obama-era methane pollution rules. The challengers contended that EPA is violating the Clean Air Act by delaying implementation of final regulations without any relevant objections. EPA has argued that it has properly referenced a provision of the Clean Air Act that allows for delays in certain situations.
• The U.S. Food and Drug Administration (FDA) announced it will hold a public meeting on July 18 to examine the “balance between encouraging innovation in drug development and accelerating the availability to the public of lower cost alternatives to innovator drugs,” a goal established in the Drug Price Competition and Patent Term Restoration Act. Emphasizing the “cost savings” of generic drug competition, FDA Commissioner Scott Gottlieb stated the meeting in July will help to identify obstacles that existing FDA regulations may have created.
• A bipartisan group of 35 state attorneys general urged the Federal Communications Commission (FCC) to reject a petition from cable and broadband groups asking the FCC to take away states’ authority to investigate allegations of false advertising of broadband speeds. The cable and broadband groups requested that the FCC implement a national measurement standard for broadband speeds.  The attorneys general argued that the “petition represents nothing more than the industry’s effort to shield itself from state law enforcement.”
• Twenty state attorneys general sent a letter to the U.S. Environmental Protection Agency (EPA) urging the agency to adopt a definition of waters of the United States (WOTUS) within the Clean Water Act (CWA), consistent with what they view as U.S. Supreme Court precedent and which would help preserve the states’ role in managing their own resources. The letter asserts that, as currently on the books, “the WOTUS Rule is unlawful and significantly impinges upon the States’ traditional role as the primary regulators of land and water resources within their borders.”

WHAT WE’RE READING THIS WEEK

• In a book review for the Harvard Law Review, Penn Law Professor Jean Galbraith discussed the book Foreign Affairs Federalism: The Myth of National Exclusivity, by Professors Michael Glennon of The Fletcher School of Law and Diplomacy, Tufts University and Robert Sloane of the Boston University School of Law. Galbraith herself found somewhat limited Glennon and Sloane’s understanding of foreign affairs federalism as having “a backdrop of federal inaction,” noting that states and local governments are “interacting” when it comes to “transnational issues” like climate change. Noting California’s “authority to regulate greenhouse gas emissions,” Galbraith articulated that “the most important developments with respect to climate regulation have involved interactions between the federal and state political branches.”
• In a new paper, Kent Barnett, Associate Professor of Law at the University of Georgia School of Law, Christina L. Boyd, Associate Professor at the University of Georgia School of Public and International Affairs, and Christopher J. Walker, Associate Professor of Law at the Ohio State University Moritz College of Law, analyzed circuit court decisions that review agency statutory interpretations to determine whether the Chevron framework, which requires courts to defer to reasonable agency interpretation of statutes, is applied consistently. Barnett, Boyd, and Walker concluded that the results of their study tend to support the conventional wisdom that courts are not consistently applying Chevron.
• In a paper, Philip Wallach, a senior fellow in Governance Studies at the Brookings Institution, explored ways in which regulation discourages homeowners from investing in rooftop solar panels. Wallach argued that pricing, subsidies, fees, financing and tax treatment, building codes, zoning laws, and other regulatory barriers keep homeowners from installing rooftop solar panels. Because many of these regulations have been imposed at the state and local levels, Wallach contended that state and local officials are in the position to level the playing field for rooftop solar.