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Federal Regulations Advisor

Insight and Commentary on U.S. Government Regulatory Affairs

Monday Morning Regulatory Review – 8/31/15: WOTUS Dammed, but How Much?

Posted in Agency Authority, Judicial Process, Judicial Review & Remedies

dawn over the capitol aocOne highlight from the last week in regulatory practice overshadowed all else: confusion over fundamental administrative law and judicial review issues far beyond the confines of environmental law became evident in conflicting court decisions and the damming of the Environmental Protection Agency (EPA) and Army Corps of Engineers’ Clean Water Rule: Definition of Waters of the United States (WOTUS). Three different United States District Courts acted in different ways when faced with the WOTUS rule’s August 28, 2015, effective date and motions for interim relief. Continue Reading

Monday Morning Regulatory Review – 8/24/15: Conflict Minerals Demise; Home Health Care Reversal & Ministerial Removal

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies

dawn over the capitol aocThree completely different and unrelated regulatory events in the past week deserve attention. A confluence of coincidences last Tuesday illustrated the First Amendment to the United States Constitution limits on symbolic rather than functional regulation. At the same time, changed facts and a changed industry justify a change in regulation. Finally, some rules are purely ministerial, but provide an important lesson nonetheless. Continue Reading

Monday Morning Regulatory Review – 8/17/15: Clean Power Plan Litigation Preview; WOTUS Litigation Update; STEM Extension Vacatur Stay & Delayed Effective Date

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process

dawn over the capitol aocHighlights from last week in regulatory practice include commencement of litigation over the Administration’s Clean Power Plan in an unusual form while the usual form continued in judicial review of the Administration’s Waters of the United States (WOTUS) final rule. Application of “good cause” exceptions to Administrative Procedure Act (APA) requirements led one district court in two different but understandable directions. Continue Reading

Monday Morning Regulatory Review – 8/10/15: Clean Power & Pay Disclosure

Posted in Judicial Process, Regulatory Process

dawn over the capitol aocTwo agencies spiced up the normal August vacation interlude guaranteed litigation for years to come: The Environmental Protection Agency (EPA) promulgated the Clean Power Plan final rules and the Securities and Exchange Commission (SEC) promulgated the Pay Ratio Disclosure final rule. Both rules are expected to become litigation posters. Continue Reading

Monday Morning Regulatory Review – 8/3/15: WOTUS Litigation IV; Cross-State / Transport Rule Remanded; Refrigeration Standards Settlement; Labor Elections Upheld Again; Tax Court Vacates IRS Rule & Clean Power Plan

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Flexibility & Small Business

dawn over the capitol aocLitigation dominated regulatory affairs last week. Procedural posturing continued in the Waters of the United States (WOTUS) litigation while gaining some clarity and the Clean Air Act (CAA) “good neighbor” regulations returned to the Environmental Protection Agency (EPA) for further refinement. Litigants asked the courts to partially vacate and remand efficiency standards for walk-in refrigerators, putting aside controversial issues for now. The National Labor Relations Board (NLRB) successfully defended its controversial union election rules, but the Internal Revenue Service (IRS) lost an arcane rule in an unusual forum. Today and next week … Clean Power Plan. Continue Reading

Monday Morning Regulatory Review – 7/27/15: WOTUS Litigation Joined; CFPB Recess Appointment Challenge Revived; Contraceptive Insurance Exception & Immigration Executive Action Regulation

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process

dawn over the capitol aocLitigation dominated regulatory practice last week. New filings in the Waters of the United States litigation clarified, as expected, some issues and process in nearly a dozen different district courts, and two court of appeals standing decisions will require the Administration to respond to a recess appointment challenge and an individual exception to the Obamacare contraceptives mandate challenge. One agency proposed implementation of immigration executive action by regulation raises some concern about litigating its non-regulatory executive actions. Continue Reading

Monday Morning Regulatory Review – 7/20/15: More WOTUS Litigation; Contraceptive Coverage Uncovered & Employee / Independent Contractor Guidance

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Process

dawn over the capitol aocAs Washington swelters, the regulatory docket remains relatively cool. Among last week’s highlights, litigants further challenged the regulatory jurisdictional definition of “Waters of the United States” and the current, now published final iteration of Obamacare contraceptive coverage rules generate more issues for potential litigation. On a less-than-regulatory front, new guidance on the distinction between employees and independent contractors facially appears to be guidance. Continue Reading

Monday Morning Regulatory Review – 7/13/15: Nutrition Labeling Extended; Housing Grants; Contraceptive Mandate Update; Truck Emissions & Immigration Executive Action Again

Posted in Judicial Review & Remedies, Regulatory Process

dawn over the capitol aocSummer in Washington and the regulatory agenda is not on vacation, but small sauntering through large items. For example, one agency has extended by a year the compliance date for a major rule, another agency created a public relations controversy while releasing a much narrower rule, a third agency released only a fact sheet on a hotly contested final rule, and another pair published a rule released three weeks ago. The biggest “news” was that the press overstated a court of appeals argument. Continue Reading

Monday Morning Regulatory Review – 07/06/15: Empty Overtime Proposal & WOTUS Litigation Deluge

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process

dawn over the capitol aocTwo significant actions in regulatory affairs in the week past, other than United States Supreme Court decision, are worth note. The Department of Labor (DOL) published its controversial Fair Labor Standards Act (FLSA) minimum wage ceiling requirement in today’s Federal Register, but the proposed rule raises less substance and greater procedural problems than expected. At the other end of the regulatory process, no sooner did the Environmental Protection Agency (EPA) and the Army Corps of Engineers publish their final rule defining the “waters of the United States” than litigants filed no less than six complaints in the district courts and at least an additional petition for review in a court of appeals. Continue Reading

SCOTUS Rejects EPA Refusal to Consider Costs in Power Plant Rules — Remand for Further Analysis

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Process

USSC SealA deeply divided United States Supreme Court (SCOTUS), in Michigan v. EPA, today held that the Environmental Protection Agency (EPA) “strayed well beyond the bounds of reasonable interpretation in concluding that cost is not a factor relevant to the appropriateness of regulating power plants.” SCOTUS reversed the decision of the United States Court of Appeals for the District of Columbia Circuit, and remanded for further proceedings that could require substantial additional EPA time and effort. Continue Reading