The Regulatory Week in Review: August 25, 2017

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D.C. Circuit rejects FERC’s approval of three pipelines, EEOC must reconsider a regulation allowing employers to fine employees not participating in wellness programs, and more…

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IN THE NEWS

  • The U.S. Court of Appeals for the D.C. Circuit rejected the Federal Energy Regulatory Commission’s (FERC) approval of the construction and operation of three natural gas pipelines in the southeastern United States. The court held that FERC failed to give adequate consideration to the proposed pipelines’ climate impact and that, without such consideration, “it is difficult to see how FERC could engage in ‘informed decision making’ with respect to the greenhouse-gas effects of this project.”
  • The U.S. District Court for the District of Columbia held that the U.S. Equal Employment Opportunity Commission (EEOC) must reconsider a regulation that allows employers to fine employees who choose not to participate in workplace wellness programs up to 30 percent of annual insurance premiums. The American Association of Retired Persons challenged the regulation, arguing that the 30 percent threshold was too high for participation in the programs to be considered “voluntary.” Though the rule still remains in effect while the EEOC reconsiders it, the court sent the regulation back to the EEOC due to lack of “any concrete data, studies or analysis” justifying the 30 percent threshold, but it allowed the rule to remain in effect pending the agency’s reconsideration.
  • The Southern Environmental Law Center (SELC) brought a lawsuit against the U.S. Environmental Protection Agency (EPA) under the Freedom of Information Act (FOIA), alleging that EPA created “bureaucratic roadblocks to providing requested information” showing EPA’s compliance with Executive Order 13,777. SELC claimed that 13,777 “could have profound impacts on the work of EPA and its mission to protect human health and the environment.” In the lawsuit, SELC wrote that “EPA obstruction harms SELC’s work” because “SELC and its partners cannot effectively participate in regulatory reform decisionmaking and advocate for essential environmental protections.” SELC asked the court to announce “that EPA has violated FOIA” and order EPA to produce the requested documents.
  • The Federal Trade Commission approved Amazon’s proposed acquisition of Whole Foods. In June, Amazon announced that it plans to acquire Whole Foods’ 465 brick-and-mortar stores for $13.7 billion.
  • Senate Democrats sent a letter to U.S. Secretary of Transportation Elaine Chao requesting information as to why the U.S. Department of Transportation (DOT) withdrew plans to propose a rule requiring all railroad and trucking companies to test drivers for sleep apnea. The letter also urged DOT to reconsider the withdrawal or implement a new safety plan “in order to help avoid future fatigue-related tragedies.”
  • U.S. Department of the Interior (DOI) Secretary Ryan Zinke announced that he will recommend to President Trump that none of the 27 national monument designations under review will be revoked entirely, but there will be “unspecified boundary adjustments for some monuments.” Executive Order 13,792 placed the monuments under review: in the interest of “energy independence,” “public access,” “burden” on government, and “economic growth,” 13,792 directed the DOI to “conduct a review of” sites marked as national monuments under the Antiquities Act. Zinke’s recommendation came in a report delivered to President Trump.
  • EPA and the U.S. Army Corps of Engineers extended by 30 days the comment period for a proposed rule that would repeal the Clean Water Rule and return to the definition of “waters of the United States” (WOTUS) that was in place prior to a 2015 change adopted by both agencies during the Obama Administration. EPA extended the comment period following stakeholder requests for the extension.
  • Delaware Governor John Carney signed legislation that toughens data breach notification laws, making Delaware the fourteenth state to require companies to implement and maintain “reasonable security measures to safeguard personal information.” The bill’s sponsor, Delaware State Representative Paul Baumbach (D-Newark), reportedly said that “this is a meaningful step forward in addressing these breaches so that we guarantee better protections for our residents and help them rebuild their lives after a cyberattack.”
  • The National Credit Union Administration (NCUA) issued a call for comments in accordance with Executive Order 13,777 to identify possible NCUA regulations that may be outdated, ineffective, or excessively burdensome. The NCUA, an independent agency, is not subject to the executive order; however the NCUA chose to comply and established a “Regulatory Reform Task Force to oversee the implementation of the agency’s regulatory reform agenda.”
  • Leaders of Spotify, “the world’s largest paid music streaming service,” were reportedly called to a meeting last month with the U.S. Securities and Exchange Commission to discuss Spotify’s proposal to forego an initial public offering (IPO) and instead “list directly on the New York Stock Exchange,” which would be the first time a company has done so on the New York Stock Exchange. Usually, an IPO helps the company to “raise money or make itself known to potential stockholders,” but Spotify already has 60 million subscribers and “awareness among investors.” Listing directly would allow Spotify to eschew “underwriting fees and restrictions on stock sales by current owners,” and it would keep the holdings of current shareholders strong. According to Bloomberg’s Lucas Shaw, “the company’s plan poses an early test for how far SEC Chairman Jay Clayton is willing to go to boost new U.S. listings.”

WHAT WE’RE READING THIS WEEK

  • Joshua D. Wright, of the Antonin Scalia Law School, George Mason University, argued in an essay for the Free State Foundation that “antitrust’s rule of reason framework is a superior regulatory framework than the categorical ban on vertical agreements” between Internet service providers and content providers established by the Federal Communications Commission (FCC). The FCC adopted the ban—popularly called “net neutrality”—to prevent anticompetitive behavior by the companies involved in vertical agreements. Wright explained that the “rule of reason framework” of antitrust law examines each vertical agreement on its own, thereby weeding out anticompetitive agreements while keeping ones that do not adversely affect consumers.
  • In a recent paper, Daniel A. Farber, Professor of Law at the University of California, Berkeley, reconsidered in light of the Trump Administration a 2001 article written by then-Professor Elena Kagan—which argued that the president could direct federal regulatory decisions by administrative agencies. In light of what Farber called the “Trump experience,” which has “already raised serious questions about the desirability of centralization of power in the White House,” the paper highlights “the benefits of a bureaucratic voice in decision-making.”
  • In a forthcoming paper in the International Review of Financial Analysis, Shaen Corbet, Lecturer in Finance at the Dublin City University Business School, and Charles J. Larkin, Research Associate and Adjunct Lecturer at the Trinity Business School, examined the recent international financial crisis and the European Commission’s decision to “transition the powers of the Committee of European Banking Supervisors to that of the European Banking Authority” and how the banking sector reacts to bank closures. Corbet and Larkin concluded that regulation may be “hindering and restricting the growth of some domestic and more peripheral and locally designed banking sectors in the form of rules designed for commercial banking operations.”