Week in Review

IN THE NEWS

• The U.S. Senate passed the Respect for Marriage Act, which would grant federal protections for same-sex and interracial marriages. The bill would repeal the 1996 Defense of Marriage Act that the U.S. Supreme Court declared unconstitutional. Senate majority leader Chuck Schumer remarked that “the rights of all married couples will never truly be safe without the proper protections under federal law.” President Joseph R. Biden voiced support for the bill and is expected to sign it into law.
• The U.S. House of Representatives passed a bill that would enforce an agreement between rail workers and companies to avert a railroad strike and shutdown. The U.S. Chamber of Commerce estimated that a railroad shutdown would cause $2 billion per day in economic loss. The agreement would increase wages and reduce penalties for workers who take time off. President Biden praised the bill and urged the U.S. Senate to pass it quickly to avoid supply chain disruptions.
• The Biden Administration released a memorandum outlining uniform standards for agencies to follow when consulting with Native American Tribal Nations about federal actions that may affect them. The memorandum incorporates feedback from tribal representatives on the implementation of an executive order that initially directed agencies to ensure timely input and tribal participation with proposed actions through consultation. In addition, the memorandum now instructs agencies to provide adequate notice of consultation and comment periods and better prioritize tribal leader participation.
• New York City Mayor Eric Adams issued a directive expanding when emergency workers may involuntarily hospitalize unhoused individuals who appear to be unable to care for themselves. In the past, emergency workers such as police officers, firefighters and city Department of Health workers could only order hospitalization if an individual presented a violent danger to themselves or others. Adams described the notion that city officials could only act in those limited circumstances as a myth that “must be put to rest.” Head of the city council’s committee on general welfare Diana Ayala contended that addressing public health issues should not be left to law enforcement.
• The U.S. Department of Health and Human Services proposed a new rule that would strengthen privacy protections for patients with substance use disorder. The proposed rule would enable patients to request restrictions on certain records disclosures and to receive an accounting of all records disclosures made by health care providers. In addition, the proposed rule would expand protections against the disclosure of records for use in civil and criminal proceedings. Department Secretary Xavier Becerra emphasized that, if finalized, the regulations would “ensure individuals do not forego life-saving care due to concerns about records disclosure.”
• The U.S. Federal Communications Commission (FCC) unanimously adopted new rules that ban the importation and sale of communications devices categorized by the agency as a threat to national security. The rules complete the implementation of the Secure Equipment Act of 2021 and target devices made by certain telecommunications companies, most of which are Chinese. The FCC also launched a reimbursement program to remove from U.S. infrastructure devices that were installed prior to the implementation of the new rules. FCC chair Jessica Rosenworcel stated that the rules help to ensure “that untrustworthy communications equipment is not authorized for use” in the United States.
• The U.S. Fish and Wildlife Service (FWS) passed a final rule to reclassify the northern long-eared bat as an endangered species. FWS explained that northern long-eared bats are increasingly affected by a disease called white-nose syndrome, which has caused an estimated population decline of 97 percent across 79 percent of their habitat. FWS expects that by 2030 the disease will have spread through 100 percent of the bats’ habitat. With this new classification, FWS prohibits the hunting, capturing, or killing of northern long-eared bats.

WHAT WE’RE READING THIS WEEK

• In a Center for American Progress report, Drew McConville, senior fellow at American Progress, Michael Freeman, policy analyst at American Progress, and Sam Zeno, research assistant at American Progress, proposed several conservation initiatives that they believe President Biden should undertake. Among their suggestions, McConville, Freeman, and Zeno contended that President Biden should designate new national monuments, marine sanctuaries, and wildlife refugees. They also recommended that President Biden direct the Bureau of Land Management to develop comprehensive regulations protecting its land. McConville and coauthors emphasized that action in the upcoming months is critical for President Biden to meet his conservation goals.
• In a Brookings Institution report, Sanjay Patnaik, director of the Center on Regulation and Markets, and Rayan Sud, research assistant at the Center, examined obstacles in the energy production permitting process. Patnaik and Sud contended that the Biden Administration will need to accelerate the creation of clean energy infrastructure to meet its pledge to reduce carbon emissions. New clean energy projects, Patnaik and Sud explained, are often delayed during the permitting process at the state and local level. Although the Biden Administration has increased the speed of some environmental reviews by setting time limits and limiting state permitting power, Patnaik and Sud suggested that more permitting reforms are required to meet the Administration’s emissions goals.
• In an essay in the Journal of Environmental Law, Jessica Allen, faculty of law at the University of Oxford, and several coauthors discuss the existing regulatory framework for animal conservation and how it is unlikely to apply to de-extinct animals—animals which were previously extinct, but brought back through cloning, genetic engineering, or selective breeding for similar traits. Allen and coauthors suggest that de-extinct animals likely would not be protected under the Endangered Species Act of 1973. They explain that species usually only receive protection if they are subject to disease, over-used commercially, or their habitats are damaged. Allen and coauthors argue that de-extinct animals would not meet this criteria because extinct animals do not have a habitat, and protections applied to the species before extinction would not carry over to de-extinct animals.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Timothy D. Lytton, associate dean and professor at Georgia State University College of Law, described likely legal challenges to a New York bill which would create liability for public nuisance if gun sellers or manufacturers did not establish measures to prevent unlawful gun use, sale, or possession. Lytton explained that, in the past, Congress specifically passed the Protection of Lawful Commerce in Arms Act to end public nuisance lawsuits against the gun industry. Lytton noted that the gun industry would likely challenge the New York bill as contradicting Congress’s purpose for the federal act. He also anticipated that the gun industry would argue that the bill would encourage litigation, discouraging manufacturers and sellers from being in the market and thus limiting access to firearms in violation of the Second Amendment.