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Updated by drosen on Feb 25, 2020
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Latest Regulatory News 2020

The latest news and opinion on regulation and enforcement.


Rethinking OIRA: Laying the Groundwork for a Progressive Presidency

Inside the Office of Management and Budget is a small office called the Office of Information and Regulatory Affairs (OIRA). As explained by Jeff Hauser in the Prospect, OIRA effectively gets to decide whether the government can issue life-saving and welfare-promoting rules on health, safety, the environment, the economy, and so much more. Everything in the Day One Agenda can be derailed by this agency. Without reforming OIRA, a new president’s regulatory aims will tread water at best and be dead in the water at worst. The combination of the 1993 Executive Order 12866 (which requires detailed analysis of any “economically significant” rule) and a loophole in the Congressional Review Act of 1996 (CRA) allows OIRA to review every regulation the government issues, and change or stop those it doesn’t like. This gives OIRA’s 50-person staff arguably more control over the president’s policy agenda than the thousands of other decision-makers, scientists, policy experts, and economists in executive agencies. Under both Democratic and Republican presidents, OIRA kills rules, slows the rulemaking process to a crawl, and weakens those rules that do see the light of day. OIRA’s staff should not spend time reviewing agencies’ economic analyses, slowing down rulemaking, and overriding the decisions of policy experts. They should have the president’s political goals in mind, rather than the abstract concept of economic efficiency. In fact, with its thorough knowledge of the regulatory process, OIRA should become the president’s advocate in the regulatory space, helping and encouraging agencies to regulate, rather than standing in their way. Several changes would accelerate agency action and allow presidents to better fulfill their promises.

Useless Wells Fargo Settlement Shows the Rule of Law Ended Long Ago

House Democrats are forcing Wells Fargo’s CEO to testify next month, and maybe we’ll see some more righteous anger to make us feel good for a moment. There’s an alleged ongoing criminal investigation of a handful of executives, and who knows, maybe even one of them will get indicted. It is an election year. But there should be no illusions that there’s been anything close to accountability for this crime, even if someone, somewhere possibly gets held responsible fifteen years down the road. This is the world we live in, where bankers can rip off customers and investors with impunity and stick someone else with the bill. They have every reason to continue this misconduct; it would practically be a violation of their fiduciary duty if they didn’t, since there are no consequences. These settlements are theatrical facsimiles of justice, and both parties love them anyway. We didn’t lose our rule of law with the election of Trump; we lost it long ago.

In State After State, Climate Change Emerges as a Key Issue for Democratic Voters

Climate change emerged as a front-burner issue in every state so far in this Democratic presidential primary season, in ways difficult to fathom only a few years ago. Democratic hopefuls are talking about the problem more than ever on the campaign trail, bemoaning Trump’s withdrawal from the Paris climate accord and bashing his relentless rollback of U.S. environmental regulations. In Iowa, where wind energy is booming and residents have endured historic flooding, climate change ranked as the second-most-important issue among voters in the recent caucuses. It was eclipsed only by health care, according to an entrance poll conducted by Edison Media Research. In New Hampshire, where moose populations are shrinking and winters are warming rapidly — and where exit polls four years ago didn’t even mention climate change — a quarter of Democratic primary voters this month listed it as the issue that mattered most, ranking it higher than income inequality and foreign policy. And in Nevada, another Edison entrance poll showed that 25 percent of Democratic caucus voters listed climate change as their most important issue. Overall, voters there ranked it behind health care but ahead of income inequality and foreign policy. Once an electoral afterthought, climate change shows few signs of fading as the nominating contests move to South Carolina on Saturday and to the 14 states that will vote on March 3, known as Super Tuesday. A survey from the Pew Research Center released this month showed that a majority of Americans say combating climate change should be a key focus for the president. Nearly two-thirds of Americans also call environmental protection a top policy priority — ranking the issue almost as high as economic concerns.

Deadline Approaching for Agencies to Post Regulatory Guidance

Anyone looking for all of the guidance, notices, and letters that federal agencies use to explain regulations should be able to find it on searchable websites by the end of this week, if agencies meet their deadline. President Donald Trump last October signed a pair of executive orders intended to rein in agency guidance documents, defined broadly as all the ways agency officials explain regulations under their jurisdiction. One order required agencies to post all their guidance—including letters, adjudication decisions, or even press releases—on one easily accessible website. “It could be for some agencies a really, really big task and four months is a very short amount of time, there’s no question,” said Cary Coglianese, law and political science professor at the University of Pennsylvania. Coglianese authored a report for the Administrative Conference of the U.S. released in May 2019 on the public availability of agency guidance documents. The Defense Department published a notice that it intends to have a new guidance portal available this week, while Labor Department and Environmental Protection Agency spokespersons said the agencies also plan to meet the Feb. 28 deadline. A Health and Human Services Department spokesperson said it was working to implement the order’s requirements.

Federal Prosecutors Investigating Whether Boeing Pilot Lied to F.A.A.

Federal prosecutors investigating Boeing are examining whether the company knowingly misled the Federal Aviation Administration while it was seeking the regulator’s approval for its 737 Max plane, according to two people familiar with the matter who spoke on the condition of anonymity to discuss an active inquiry. In recent months, prosecutors have questioned several Boeing employees in front of a federal grand jury, with some of their queries focusing on whether Mark Forkner, a top pilot at the company, intentionally lied to the regulator about the nature of new flight control software on the jet, the people said. That software, which is known as MCAS and automatically pushes the nose of the plane down, played a role in two crashes that killed 346 people. The Department of Justice has been investigating Boeing for months, but the information about the grand jury testimony provides some clarity about how prosecutors could be aiming to hold the company accountable for errors that led to the crashes. Mr. Forkner could face criminal charges of lying to the government. The company could also be held liable for potential wrongdoing by Mr. Forkner, because he was a senior employee responsible for Boeing’s interaction with the F.A.A. group that determined the kind of training pilots would need before flying the Max.

Wells Fargo to Pay $3B Settlement Over Sales Scandals

Wells Fargo has agreed to pay $3 billion to the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) to settle charges over the bank’s series of sales scandals that drew unprecedented federal penalties, federal officials announced Friday. Under the terms of the settlement, which includes $500 million in restitution for the bank’s investors, Wells Fargo admitted “that it collected millions of dollars in fees and interest to which the company was not entitled, harmed the credit ratings of certain customers, and unlawfully misused customers’ sensitive personal information.”

Lawsuit: It’s Too Hard To Cancel Student Loans

Student loan advocates filed a new lawsuit today that says the U.S. Department of Education, led by Secretary Betsy DeVos, is making it harder for borrowers to cancel their student loans. According to the lawsuit, which was filed in U.S. District Court in New York, defrauded students seeking to assert their legal rights to cancel student loans now have to face “onerous standards” and “procedural hurdles.”

House Subcommittee Requests Information From Ring About Cooperation With Police, Local Governments

A House subcommittee is asking Amazon's home security outfit Ring for information about its partnerships with city governments and local police departments as well as its data protection policy. Rep. Raja Krishnamoorthi (D-Ill.), who chairs the House Oversight and Reform Subcommittee on Economic and Consumer Policy, expressed concerns in a letter to Amazon about reports that Ring cooperates with the local entities to promote its surveillance tools and has agreements with some cities to provide discounts on their products to residents in exchange for city subsidies. He also said he was alarmed by reports that Ring “tightly controls” what is said about them in public and mandates prior approval of any statement.

Apple and Google Are Reportedly Mulling Big Changes Amid Antitrust Scrutiny. Is Amazon Next?

United States antitrust investigations into Big Tech haven’t yet concluded, but they already seem to be making an impact. Bloomberg reported on Thursday that Apple is considering allowing iPhone users the ability to make third-party apps such as Chrome and Gmail the default on their phones, a potential reversal that could alleviate one criticism from competitors and consumers alike that has caught lawmakers’ attention. And earlier this month, the Wall Street Journal reported that Google executives were informally discussing whether they should consider spinning off their advertising-technology unit as regulators examine the company’s dominance in online advertising and its dealings with publishers. Taken together, the internal discussions at Apple and Google seem to signal that the biggest tech platforms are, at a minimum, taking probes from Congress, the Federal Trade Commission, and the Department of Justice seriously. On top of that, they could be looking to make sacrifices to ward off potential regulatory actions or lawsuits. This brings up the question of whether Amazon and Facebook are mulling their own changes.

Food Fight: How Two Trump Proposals Could Bite Into School Lunch

Two pending rule changes meant to reduce what the Trump administration calls abuse of federal benefit programs could also mean hundreds of thousands of children lose access to free school meals. The first proposed change: The Trump administration wants to tighten states' standards for the Supplemental Nutrition Assistance Program, also known as food stamps. States have long been able to simplify enrollment in SNAP, allowing families who live in near poverty to apply for the benefit with less paperwork and somewhat more flexible rules to qualify. But the administration believes some households are getting benefits they don't deserve. The other big change the Trump administration is pushing would also drive children out of the school lunch program. The Department of Homeland Security has proposed stiffening the nation's public charge rule to require aspiring citizens to prove they won't rely on public assistance, including SNAP.

How a Basic iPhone Feature Scared a Senator Into Proposing a Facial Recognition Moratorium

With just a picture of your face, someone armed with facial recognition software could find everything there is to know about you, from your name to your address to information about your family. That such tech could usher in an age of constant surveillance has many spooked. Recode recently chatted with Sen. Jeff Merkley (D-OR), who recently introduced a bill aimed at curbing government use of facial recognition software after he noticed the technology at work on his iPhone — and saw the scope of its power in China's use of it against the country’s largely Muslim Uighur minority. News earlier this year that Clearview AI, a mysterious facial recognition startup, has scraped more than 3 billion photos from the web and social media, and provided that tool to more than 600 law enforcement agencies, has only fueled further concern. Several cities have now banned the tech, and late last month, 40 groups called for the use of the tech to be suspended. But US lawmakers haven’t yet moved to regulate facial recognition, though there are ideas. Proposals include prohibiting the tech in federally assisted public housing and requiring that commercial users of the tech gain consumers’ consent to use their data. Now there’s Merkley’s plan, in conjunction with Sen. Cory Booker: forbid the use of the tech by federal law enforcement without a court-issued warrant until Congress comes up with better regulation. Their bill, called the “Ethical Use of Facial Recognition Act,” would establish a commission to study the technology and propose guidelines; it would prohibit sending federal money to state and local governments to “invest in facial recognition software, purchase facial recognition technology services, or acquire images for use in facial recognition technology systems.” But the American Civil Liberties Union’s Neema Singh Guliani warns that “a warrant doesn’t solve the fundamental concerns with face recognition.” She points to research showing that the tech can be biased and more inaccurate when applied to women and people of color, as well as the risk that the tech endangers our civil liberties and privacy. Merkley told Recode that the technology may be useful in investigations and that we can’t eschew it entirely. But he’s also fearful that excessive use of the tech will become a tool for “government tracking” of civilians.

Facebook’s Proposed Regulations Are Just Things It’s Already Doing

Facebook also released a white paper (PDF) outlining the approach it would like to see regulators take to creating legal standards for content moderation. The approach it would like to see, you may not be surprised to learn, is one that largely follows the avenues Facebook has already taken. That includes: requiring public reporting on policy enforcement actions; reducing the visibility of content that violates standards; and blocking attempts to regulate speech based on the content of that speech. (The paper does not address how countries might regulate political ads, though Zuckerberg’s statement that posts on Facebook ought to be regulated like something in between a telecom company and a newspaper suggests the answer is “very lightly.”

Green Groups Plan to Sue Over Trump Rollback of Obama Waterway Protections

A coalition of environmental groups informed the Trump administration Tuesday that it would sue over a major rollback of water protections designed to replace the Obama-era Waters of the U.S. (WOTUS) rule. “Trump’s despicable giveaway to polluters will wipe out countless wetlands and streams and speed the extinction of endangered wildlife across the country,” Brett Hartl, government affairs director at the Center for Biological Diversity, said in a statement. “Even as we’re fighting this in court, the polluters will rush to fill in wetlands and turn our waterways into industrial toilets.” The coming suit, which is spearheaded by the Center for Biological Diversity and includes a number of waterway protection groups, is the first of what may be many suits against the rule.

Ring and Nest Helped Normalize American Surveillance and Turned Us Into a Nation of Voyeurs

Amazon’s Ring, Google’s Nest and other Internet-connected cameras — some selling for as little as $59 — have given Americans the tools they need to become a personal security force, and millions of people now seeing what’s happening around their home every second — what Ring calls the “new neighborhood watch.” (Amazon founder Jeff Bezos owns The Washington Post.) But the allure of monitoring people silently from afar has also proved more tempting than many expected. Customers who bought the cameras in hopes of not becoming victims joke that instead they’ve become voyeurs. The Washington Post surveyed more than 50 owners of in-home and outdoor camera systems across the United States about how the recording devices had reshaped their daily lives. Most of those who responded to online solicitations about their camera use said they had bought the cameras to check on package deliveries and their pets, and many talked glowingly about what they got in return: security, entertainment, peace of mind. Some said they worried about hackers, snoops or spies. But in the unscientific survey, most people also replied that they were fine with intimate new levels of surveillance — as long as they were the ones who got to watch.

The EPA Is About to Change a Rule Cutting Mercury Pollution. The Industry Doesn’t Want It.

For more than three years, the Trump administration has prided itself on working with industry to unshackle companies from burdensome environmental regulations. But as the Environmental Protection Agency prepares to finalize the latest in a long line of rollbacks, the nation’s power sector has sent a different message: Thanks, but no thanks. Exelon, one of the nation’s largest utilities, told the EPA that its effort to change a rule that has cut emissions of mercury and other toxins is “an action that is entirely unnecessary, unreasonable, and universally opposed by the power generation sector.” Kathy Robertson, a senior manager for environmental policy at the company, said the industry long ago complied with the rule. “And it works,” she said. “The sector has gotten so much cleaner as a result of this rule.” Despite a chorus of opposition from unions, business groups and electric utilities, the EPA is on the verge of finalizing its proposal as part of a broader effort to overhaul how the government calculates the health benefits of cleaner air. Coal executives have lobbied for it, arguing it represented one of the worst excesses of what President Trump calls “the war on coal.”

EPA Announces Cleanup Deal for One of the Biggest Superfund Sites in the U.S.

The cleanup settlement on the table is the result of high-stakes negotiations between EPA, state and local governments and oil company Atlantic Richfield, now a subsidiary of energy giant BP. It commits Atlantic Richfield to spend more than $150 million to remove tons of buried mine waste, capture and treat dirty water and maintain environmental protections forever. And it came about in large part because in 2017, the Trump administration put Butte on a priority list of 21 Superfund sites targeted for, quote, "immediate and intense attention." This week's announcement is an environmental victory the EPA can claim at a time that it's facing intense criticism for rolling back regulations on polluters. But independent Superfund expert Kate Probst says it needs to be viewed from a big-picture perspective.

Corporations Are Working With the Trump Administration to Control Online Speech

The Trump administration is working with Republican Senate leaders to advance legislation giving the attorney general power to set online speech guidelines along with the opportunity to access everything Americans do with their digital devices. There are plenty of things Congress can do to hold Big Tech accountable. I’d start with passing a strong privacy law, such as my Mind Your Own Business Act, which includes tough enforcement provisions for tech executives, including the possibility of jail. And concerns about anti-competitive practices, including the Facebook-Instagram merger, deserve serious investigation from the Justice Department and Federal Trade Commission. I stand ready to work with anyone to hold the biggest corporations accountable, whether for dodging taxes, extorting Medicare or ripping off consumers. I draw the line at putting any politician in charge of what people can say or how they can say it, whether it’s on the Internet or anywhere else.

Democratic Senators Ask FDA to Ban Device Used to Shock Disabled Students

Eight Democratic senators asked the FDA in a signed letter to ban the use of a device, available exclusively in Massachusetts, used to administer electric shocks to disabled students. The letter, dated Monday, called on the agency to finalize a rule banning the devices after issuing a proposed rule nearly four years ago in April 2016. The FDA announced in 2018 that it intended to issue a final rule by December 2019, with then-Commissioner Scott Gottlieb saying “we believe these products present an unreasonable and substantial risk to public health that cannot be corrected or eliminated through changes to the labeling.” However, the agency missed the deadline, which the senators called “unacceptable.”

Green Group Sues Trump Over Major Environmental Rollback

An environmental group is trying to block one of President Trump’s most far-reaching environmental rollbacks from taking effect, arguing the administration has not provided proper access to public documents on a new rule that would limit the scope of the National Environmental Policy Act (NEPA). The Southern Environmental Law Center (SELC) is seeking an injunction from the U.S. District Court in Charlottesville that would block changes to the bedrock environmental law that are slated to take effect in early March. The suit is the latest move in SELC’s 17-month battle to get public records from the White House detailing the reasoning behind the January rule, which the administration has said it will not be able to provide until November. The administration is holding commenting sessions before the rule is finalized.

Watchdog Sues for Records of Boeing's Communications With Trump's Transportation Department

The government watchdog Accountable.US has filed a lawsuit against the Department of Transportation (DOT) after requests for records of communications between Boeing and DOT have not been acknowledged. Following the second deadly Boeing 737 MAX crash last year, Accountable.US submitted four Freedom of Information Act (FOIA) requests in December related to communications between Boeing and the Federal Aviation Administration (FAA) but have yet to receive any records in response.

Calculating Air Pollution’s Death Toll, Across State Lines

Here’s further proof that air pollution ignores borders: In most states, about half of the premature deaths caused by poor air quality are linked to pollutants that blow in from other states, a new study found. The study investigated the sources and effects of two major pollutants that harm humans, ozone and fine airborne particles, in the lower 48 states from 2005 to 2018. It found that in New York, nearly two-thirds of premature deaths are attributable to pollution from sources in other states. That makes the state the largest “net importer” of early deaths, to use the researchers’ term. Ozone and fine particles are a result of fuel burning, so the analysis, published Wednesday in Nature, could have implications for policymakers looking for ways to reduce air pollution, and premature mortality, by regulating so-called cross-state emissions. So far only emissions from electric power generation are regulated in this way, but the study looked at six other sources of pollutants, including other industries, road transportation, aviation and commercial and residential sources like heating for homes and buildings.

The Toxic Reach of Deepwater Horizon’s Oil Spill Was Much Larger — and Deadlier — Than Previous Estimates, a New Stud...

The spread of oil from the Deepwater Horizon disaster in the Gulf of Mexico was far worse than previously believed, new research has found. As the worst offshore oil spill in U.S. history approaches its 10th anniversary in April, a study by two University of Miami researchers shows that a significant amount of oil and its toxic footprint moved beyond fishery closures where it was thought to be contained and escaped detection by satellites as it flowed near the Texas shore, west Florida shore and within a loop current that carries Gulf water around Florida’s southern tip up toward Miami. In their study, published Wednesday in Science, the researchers dubbed it “invisible oil,” concentrated below the water’s surface and toxic enough to destroy 50 percent of the marine life it encountered. Current estimates show the 210 million gallons of oil released by the damaged BP Deepwater Horizon Macondo well spread out over the equivalent of 92,500 miles. But the oil’s reach was 30 percent larger than that estimate, the new study says. “Oil in these concentrations for surface water extended beyond the satellite footprint and fishery closures, potentially exterminating a vast amount of planktonic marine organisms across the domain,” the researchers wrote. The findings show that the government’s understanding of how oil flowed from Deepwater Horizon was limited and that it underestimated the extent to which marine life was killed or poisoned by toxic crude.

Donald Trump’s Continued Assault on Government Workers Betrays American Farmers

President Trump has repeatedly attacked federal employees, most recently by proposing cuts to their retirement benefits and apparently undermining career Justice Department lawyers, several of whom have resigned. The Trump administration has similarly diminished the scientific capacity of the United States government by relocating the Economic Research Service and the National Institute of Food and Agriculture from Washington to Kansas City, Mo. Although framed as a cost-cutting measure, many commentators have speculated that this move was designed to thin the ranks of government scientists, who would be reluctant to uproot their lives and move their families many miles. Indeed, significant numbers of scientists retired or found other jobs instead of moving to the Kansas City area. At the National Institute of Food and Agriculture, for example, nearly eight of every 10 employees have left. And it’s not just the USDA. According to The Washington Post, nearly 700 scientists have left the Environmental Protection Agency in the past three years, and the EPA has hired only half that number to replace them. Overall, more than 1,600 federal scientists left government agencies in the first two years of the Trump administration. Such moves are dangerous not just to the agricultural sector but also to the broader economy. America’s emergence by the middle of the 20th century as the world’s most successful economy relied on a key investment: the social commitment to build the capacity that enabled sustainable prosperity in U.S. agriculture. And this agricultural supremacy depended on government scientists.

Gillibrand Proposes Creating New Digital Privacy Agency

Sen. Kirsten Gillibrand (D-N.Y.) wants to create an entirely new federal agency dedicated to protecting online privacy, she said in a proposal released Thursday morning. In her first major policy proposal since dropping out of the 2020 presidential race, Gillibrand is calling for the creation of a "Data Protection Agency" tasked with creating new rules around how tech companies are allowed to collect and use personal information about their users. Gillibrand's legislation would empower the agency to investigate, subpoena and go after companies accused of violating online privacy. The agency would take tech oversight away from the Federal Trade Commission (FTC), the century-old federal agency currently tasked with overseeing privacy and antitrust issues. Gillibrand's proposal says the FTC has "failed" to act on some of the most pressing privacy issues of the day, including online marketing to children.

FAA Says Its Inspectors and Managers Failed to Properly Oversee Safety at Southwest Airlines

Federal aviation regulators acknowledged multiple failures overseeing safety at Southwest Airlines Co. LUV 0.58% and agreed to implement nearly a dozen recommendations spelled out in a report by the Department of Transportation’s inspector general. As part of the Federal Aviation Administration’s response, submitted to DOT investigators at the end of January and released on Tuesday, the agency indicated local managers responsible for monitoring Southwest failed to ensure the carrier complied with mandatory maintenance standards while incorporating 88 used jets into its fleet. The audit, which was previously reported by The Wall Street Journal, determined that as a result, Southwest was permitted to operate more than 150,000 flights carrying some 17.2 million passengers on jets with suspect maintenance records. The FAA also acknowledged the same oversight office violated its own rules when it allowed Southwest jets to routinely fly without verified takeoff weights.