Week in Review

IN THE NEWS

• The Office of Information and Regulatory Affairs (OIRA) released its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions. The agenda presented the Trump Administration’s regulatory priorities and reported on intended short-term and long-term agency actions. In a separate introduction, OIRA emphasized its increased attention to cost-benefit analysis of proposed rules, and it highlighted recent reforms to tax regulations, which, for the first time, are subject to OIRA oversight.
• As part of the Unified Agenda, the U.S. Environmental Protection Agency (EPA) placed its proposed “transparency” rule on the list of long-term actions, planning to implement it in 2020. The rule, proposed in April, would permit EPA to use only scientific data and findings that are publicly available and reproducible. A spokesperson for EPA reportedly claimed that the categorization of the rule as long term “is not a delay,” but California Attorney General Xavier Becerra (D) tweeted his pleasure that EPA had “shelved this misguided proposal.”
• A federal judge allowed the Borrower Defense Rule—an Obama Administration rule protecting graduates of for-profit colleges—to take effect. Judge Randolph D. Moss of the U.S. District Court for the District of Columbia denied a request for a preliminary injunction that would have prevented the rule from going into effect. Although Julie Murray, a Public Citizen attorney representing students in this case, hailed the decision as a “huge win,” the rule will face further challenges in litigation.
• The U.S. Department of Health and Human Services (HHS) proposed a rule that would require drug manufacturers to disclose the list price of medications in television advertisements. HHS claimed the rule would help consumers “make informed decisions that minimize not only their out-of-pocket costs, but also unreasonable Medicare and Medicaid expenditures.” Peter Maybarduk, director of Public Citizen’s Global Access to Medicines Program, stated that price disclosures would expose “price gouging” by drug companies but that further action was needed to create meaningful consumer choice in the drug market.
• In a unanimous decision, the U.S. Securities and Exchange Commission (SEC) concluded that two national stock exchanges—the New York Stock Exchange and NASDAQ—failed to demonstrate that the fees they charged for access to market data complied with the Securities Exchange Act of 1934. The SEC found that the exchanges did not provide sufficient factual and legal support for the fees they charged. “Today’s decision is a victory for ordinary investors in our stock markets—who have, for too long, been paying steep costs for an uneven playing field,” SEC Commissioner Robert J. Jackson Jr. reportedly said.
• U.S. Secretary of the Interior Ryan Zinke announced “major developments” in the expansion of offshore wind power. The Bureau of Ocean Energy Management (BOEM) will hold an offshore wind auction off the Massachusetts coast, and it announced the environmental review of a potential project off the coast of Rhode Island. BOEM is also seeking comments on potential sites for offshore wind turbines off the coast of California—the first such project on the West Coast.
• EPA reported that U.S. greenhouse gas emissions in 2017 fell nearly 3 percent from 2016 levels. EPA Acting Administrator Andrew Wheeler credited the private sector, “not the heavy hand of the government,” for the reduction in emissions. “The Trump Administration has proven that federal regulations are not necessary to drive CO2 reductions,” Wheeler said.
• The U.S. District Court for the Middle District of Tennessee barred the state from revoking people’s driver licenses for unpaid traffic tickets. The state caused “both constitutional and material injuries” to indigent residents of Tennessee by effectively depriving them of a driver license, Judge Aleta Trauger wrote. Judge Trauger’s ruling followed her July order banning Tennessee from revoking the driver licenses of people who cannot pay their court costs.
• Mayor Ted Wheeler (D) of Portland, Oregon announced his intention to regulate the “time, place, and manner” of demonstrations held in the city. Mat dos Santos, legal director of the ACLU of Oregon, said the “proposed ordinance raises many constitutional concerns” and will “inevitably… get challenged in court. Daryl Turner, president of the Portland Police Association, reportedly supported a “hard line” against violence at protests, provided that the proposed ordinance would not restrict free speech.

WHAT WE’RE READING THIS WEEK

• An “overwhelming” majority of unique comments on the Federal Communications Commission’s (FCC) repeal of net neutrality opposed the repeal, according to a study by Ryan Singel of the Center for Internet and Society at Stanford Law School. Singel examined more than 800,000 comments that were not merely part of a form letter campaign, finding that 99.7 percent of these comments opposed the repeal. He also noted that the opposition was uniform across party lines, and that battleground congressional districts yielded a higher rate of comments. Singel suggested improvements to the FCC’s comment process, such as reorganizing the website for filing comments and sending commenters confirmation emails to weed out bots.
• In a recent paper, Olivia J. Erdelyi of the University of Canterbury College of Business and Law and Judy Goldsmith of the University of Kentucky called for the creation of an international organization to regulate artificial intelligence (AI) technologies. Erdelyi and Goldsmith stressed that AI technologies merit international regulation because their potential effects “transcend national boundaries,” and differing national regulations could contribute to “international tensions.”
• States are not completely immune to suits challenging their regulations as anticompetitive, wrote William Page of the University of Florida Levin College of Law and John Lopatka of the Pennsylvania State University Law School in a recent paper. After Parker v. Brown, states could not be held liable under the Sherman Act for anticompetitive regulations, and the Eleventh Amendment of the U.S. Constitution has been interpreted to protect states from private lawsuits. Page and Lopatka noted that because Parker does not protect state officials from liability and the Eleventh Amendment does not prevent the federal government from suing states, states still face a degree of accountability for anticompetitive actions.