This Week in Regulation

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The D.C. Circuit rejects EPA’s delay of methane rules, the DOJ and Hawaii debate who should clarify President Trump’s travel ban, and more…

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IN THE NEWS

  • The U.S. Court of Appeals for the District of Columbia Circuit rejected the U.S. Environmental Protection Agency’s (EPA) delay of a 2016 rule that sought to cut methane emissions. This June, EPA delayed parts of the rule, including its effective date, and then proposed to delay those parts for another two years for “reconsideration.” The D.C. Circuit ruled that the Clean Air Act “did not require reconsideration” because “industry groups had ample opportunity to comment on all issues on which EPA granted reconsideration.”
  • The U.S. Department of Justice reportedly asked a federal judge to deny Hawaii’s request for clarification on President Donald Trump’s travel ban executive order, contending that only the U.S. Supreme Court should consider the scope of the travel ban. The executive order went into effect last week, but visa applicants from countries affected by the travel ban can still enter if they have a “bona fide” familial relationship to the United States. Hawaii argued that the White House’s interpretation of “bona fide” familial relationship is too narrow in its request for clarification.
  • The Supreme Court of Canada struck down the “Promise Doctrine,” an interpretation of the Patent Act that allowed courts to invalidate a patent for a drug if that drug did not fulfill all its promised uses. AstraZeneca Plc, the appellant in the case, reportedly argued that the doctrine made it too easy for drug companies to lose patents. The Supreme Court of Canada agreed that “such a consequence is antagonistic to the bargain on which patent law is based.”
  • Regulatory experts asserted that the Presidential Advisory Commission on Election Integrity, established by President Trump, “may have violated” the Paperwork Reduction Act (PRA). A spokesman for Vice President Pence claimed that because the PRA only covers “agencies,” it does not apply to the Commission, which the spokesman argued is not an agency. The Brennan Center and United to Protect Democracy sent a letter to Mick Mulvaney, Director of the Office of Management and Budget, demanding “compliance with the PRA.” Stuart Shapiro of Rutgers University argued that “the PRA is an important safeguard against government overreach” and suggested the Commission “follow the requirements of the PRA.”
  • In a letter to the U.S. Department of the Interior and the U.S. Fish and Wildlife Service (FWS), Earthjustice gave notice that it will sue the FWS if, within 60 days, the FWS does not retract its “rule removing the Greater Yellowstone grizzly population from the list of threatened and endangered species” pursuant to the Endangered Species Act. Earthjustice asserted that the grizzly bear is “imperiled” and its removal from the list “threatens severe consequences for the region’s iconic bear population.”
  • The Federal Trade Commission (FTC) approved a merger between outdoors retailers Cabela’s Inc. and Bass Pro Shops nearly doubling the number of Bass Pro Shops locations and employees. The merger is contingent upon the approval of Cabela’s shareholders and the sale of Cabela’s financial unit to a third party. In a securities filing earlier this year, Cabela’s reported the FTC’s investigation “does not indicate that the FTC has concluded that the transaction raises competition concerns.”
  • The Consumer Financial Protection Bureau published a proposed rule seeking public comment on “potential modifications” to its November 2016 prepaid card rule, which created comprehensive consumer protections for prepaid accounts. The proposed modifications, addressing “unanticipated” issues, include a revision to the error resolution provision, which would no longer require financial institutions to “resolve errors or limit consumers’ liability on unverified prepaid accounts.”
  • For institutions subject to the U.S. Department of Education’s “gainful employment” regulations, the Department extended the deadline to comply with certain disclosure requirements. The deadline is also extended for all programs to file alternate earnings appeals following a court order.
  • The U.S. Food and Drug Administration (FDA) extended the comment period for its interim final rule requiring “disclosure of certain nutrition information for standard menu items in certain restaurants and retail food establishments.” The comments, due August 2, 2017, are intended to help the FDA “further reduce the regulatory burden or increase flexibility.”

WHAT WE’RE READING THIS WEEK

  • In an article for the University of Hawai’i Law Review, Agnieszka McPeak, Associate Professor of Law at the University of Toledo College of Law, argued that “tort law plays a crucial, complementary role” in regulating ridesharing platforms, as she believes that “federal regulation under the new Trump administration seems an unlikely solution.” McPeak reasons that “tort law is already able to handle the seemingly unique liability concerns” and that by using tort law, “important objectives can be achieved without risking over-regulation.”
  • In an article for the magazine Regulation, Craig Loehle, principal scientist, and Erik Schilling, a senior research scientist, both with the National Council for Air and Stream Improvement, argue that recent environmental regulations are very costly and yield “vanishingly small if not zero” benefits. Loehle and Schilling propose a budget-constrained environmental regulatory scheme “to maximize the net benefits of environmental regulation.” Loehle and Schilling contend that, in addition to considering costs, legislators and regulators should set clearer, reasonably attainable standards.
  • In an analysis for The Pew Charitable Trusts, Director of Food Safety for Pew Sandra Eskin argues that federal laws regulating meat safety—like the 1906 Federal Meat Inspection Act—are “outdated.” As a result, “preventable foodborne diseases” still affect people. In response to the problems she sees with the laws, Eskin notes the steps that Pew is taking to bolster the U.S. Department of Agriculture’s (USDA) “food safety program,” and she also recommends, “USDA should direct its inspection resources more efficiently.”