Week in Review

IN THE NEWS

• The Iowa Supreme Court declined to lift a block on the state’s six-week abortion ban which a lower court had established after Iowa Governor Kim Reynolds signed the ban into law in 2018. Justice Thomas D. Waterman explained that the statute which prohibited abortion whenever a fetal heartbeat can be detected was no more than “a hypothetical law” when it was signed because it was likely to be declared unconstitutional at the time. Justice Waterman also explained that affirming the ban today would effectively “bypass the legislature” because the ban was approved by a previous general assembly, not the acting general assembly. Although Ruth Richardson, president of Planned Parenthood North Central States, called the decision “an enormous win,” Governor Reynolds stated that the lack of action was a “disappointment” and that she would review options to proceed past the injunction.
• Two federal district court judges issued injunctions blocking laws in Arkansas and Indiana that banned the provision of gender-affirming care to transgender youth. In Arkansas, Judge Jay Moody permanently enjoined a law that banned doctors from providing gender-affirming care to people under 18. In Indiana, Judge James Patrick Hanlon’s order allowed the state’s ban on gender-affirming surgeries for minors to stand, but included a preliminary injunction against the law’s prohibition of certain medical and therapeutic treatments for transgender minors. Executive Director of the ACLU of Arkansas, Holly Dickson, celebrated the decision as a victory, and Kenneth Falk, Legal Director of the ACLU of Indiana, vowed to continue working to strike down the remaining elements of the Indiana ban.
• The Administrative Conference of the United States (ACUS) adopted four recommendations designed to promote efficiency, transparency, and public participation in administrative programs. One recommendation, if acted on by Congress, would create more comprehensive standards for what legal materials agencies must disclose proactively on their websites and how these materials should be published. ACUS also encouraged agencies to offer virtual options for public participation in rulemaking activities, and it identified best practices for developing online processes for agency adjudications, such as uploading and viewing case materials. Lastly, ACUS outlined best practices for agencies’ use of AI tools to identify rules that are out of date, redundant, or contain typos.
• The U.S. Department of Transportation issued a rule clarifying its authority to pursue enforcement actions against airlines for unfair and deceptive practices by bringing civil actions in federal court. The updated rule permits the Transportation Department either to file a complaint in court when efforts to settle the matter have failed, or to pursue litigation as an alternative to setting a matter for hearing before an administrative law judge. The new rule is part of the Biden Administration’s broader effort to address common frustrations with the airline industry. Other initiatives include efforts that may require that airlines provide total fee transparency, rebooking services for stranded passengers, and fairer refund policies.
• The Bureau of Land Management (BLM) issued a proposed rule that is designed to encourage solar and wind energy projects by altering BLM’s approach to leasing rights-of-way over federal lands. The proposed rule would lower the acreage fees and rents for federal rights-of-way for wind and solar projects and permit BLM to prioritize solar and wind projects, as authorized by sections of the Energy Act of 2020. Current regulations require project developers to pay the “market rate” for a right-of-way, but the proposed rule would eliminate this requirement for solar and wind projects.
• The U.S. Fish and Wildlife Service issued a notice of proposed rulemaking seeking to reinstate broad protective regulations, or “blanket rules,” for newly listed threatened species under the Endangered Species Act (ESA). The proposed rule also would give federally recognized Tribes access to exemptions that are currently reserved for employees of the Service and other state agencies. A description of the proposed rule explains that these exemptions could empower Tribes “to aid injured or diseased wildlife or plants…without permits.” For over 40 years, the agency has used blanket rules to automatically extend ESA protections to all newly listed threatened species, streamlining the regulatory process. In September 2019, the agency withdrew the rule enabling default application of ESA protections to those species, obligating the agency instead to issue individual, species-specific rules. The proposed reinstatement of blanket rules is a product of President Joseph R. Biden’s 2021 executive order directing agencies to review all agency actions issued during the Trump Administration.
• Federal agencies responsible for regulating consumer financial transactions, including the Consumer Financial Protection Bureau and the Federal Housing Finance Agency, collectively issued a proposed rule to implement provisions of the Dodd-Frank Act that regulate automated valuation models. Automated valuation models are digital real estate evaluation programs that monitor financial portfolios or underwrite real estate loans. The proposed rule would require valuation models and their users to comply with anti-discrimination laws, seek to prevent the manipulation of data, aim to combat conflicts of interest, and help ensure a “high level of confidence in the estimates produced” by valuation models.
• The U.S. Court of Appeals for the D.C. Circuit this week upheld a challenge from the Maine Lobsterman’s Association to National Oceanic and Atmospheric Administration rules designed to protect the North Atlantic Right Whale. The D.C. Circuit stated that the federal government could not rely on “worst-case scenarios” when protecting endangered species and instead must tailor regulations to “likely” ecological outcomes. The existing rules prohibited the use of certain fishing gear, such as traplines. The Maine Lobsterman’s Association argued that the new regulations would result in the loss of thousands of jobs in the lobster industry. Conservation groups, however, argued that strict rules were necessary because the prohibited fishing gear traumatized whales and prevented breeding.
• The U.S. Department of Energy issued a final rule amending the energy conservation standards for microwave ovens under the Energy Policy and Conservation Act, a federal law which established that amended energy conservation standards must be economically justified and must be as energy efficient as possible. The Energy Department determined that the technology needed to achieve the amended standards in microwave ovens is already commercially available. Microwave ovens under the amended standards are projected to use nearly 20 percent less energy than those without the standards. The Energy Department expects that the standards will produce emissions reductions equivalent to the yearly energy usage of 19,000 households.

WHAT WE’RE READING THIS WEEK

• In a recent report, Drew McConville, a Senior Fellow at the Center for American Progress, argued that BLM’s proposed rule permitting “conservation leasing” on public lands would improve the quality of U.S. public lands and encourage the development of clean energy projects. Currently, when developers propose a project that could impact local ecosystems or natural resources, they must offset the project’s environmental impacts by engaging in conservation projects elsewhere. The proposed rule would permit developers to contract with the federal government to conduct these conservation projects on federal lands through a “conservation lease.” McConville argued that BLM’s proposed change would lead to higher quality feder​​al lands and the development of more green energy projects because developers will have more options at their disposal to offset their environmental impacts.
• In an Urban Institute report, Yonah Freemark, Lydia Lo, and Sara Bronin presented evidence that certain zoning laws are correlated with access to affordable housing and with segregation by income, race, and ethnicity. Freemark, Lo, and Bronin compared a zoning map of Connecticut to neighborhood-level data in an effort to analyze “zoning laws, property values, and residents’ demographic and economic characteristics.” Although they did not determine a causal direction of the relationship, Freemark, Lo, and Bronin found that zoning laws limiting construction to single family homes are associated with higher-income, white neighborhoods, which are more likely to display higher levels of income and racial segregation patterns than are multi-unit zoning districts. Freemark, Lo, and Bronin concluded that officials seeking to reduce housing costs and promote racial and economic integration should more evenly distribute multi-unit zoning across jurisdictions.
• In an article in the Yale Journal on Regulation, Nathan Atkinson, an assistant professor at the University of Wisconsin Law School, investigated the effectiveness of EPA enforcement by exploring violations of the Clean Air Act by stationary sources of pollution. Atkinson found that in over a third of the cases he studied, it was more profitable for the sources to violate the Clean Air Act than it was for them to comply with it. Atkinson contended that EPA can only regulate emissions properly if it punishes noncompliance effectively, but that for EPA to do so, it would need to more than quadruple the penalty rate for noncompliance. Atkinson concluded that sources emitting pollutants will continue to violate EPA standards as long as the penalties for doing so remain low.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Christopher Carrigan, an associate professor at the Trachtenberg School of Public Policy and Public Administration at George Washington University, and Stuart Shapiro, the Dean of the Edward J. Bloustein School of Planning and Public Policy at Rutgers University, detailed their research on the disclosure of policy alternatives and the solicitation of public input by agencies during the early stages of their rulemaking processes. Carrigan and Shapiro found that agencies typically did not disclose policy alternatives in their proposed rules. Their research also suggested that the methods agencies use to seek public input during the notice-and-comment processes varied significantly. Carrigan and Shaprio argued that agencies should be required to include potential policy alternatives in their notices of proposed rulemaking both to facilitate public participation and to share best practices among agencies.