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Federal Regulations Advisor

Insight and Commentary on U.S. Government Regulatory Affairs

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

Monday Morning Regulatory Review – 06/29/15: Fracking Rule Stayed; Gainful Employment Passing Grade; Waters of the United States; & ACUS Recommendation

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

dawn over the capitol aocAside from the United States Supreme Court (SCOTUS)’s end of Term fireworks (covered previously and later today), a few highlights in regulatory practice from the last week included a stay of the Department of the Interior (DOI)’s hydraulic fracturing rule for federal and Indian lands and summary judgment in favor of the Department of Education (ED) regarding part of its efforts to reign in for-profit colleges. The Environmental Protection Agency (EPA) and Armey Corps of Engineers publication of the definition of waters of the United States sets the effective and judicial review dates for that contentious final rule. The Administrative Conference of the United States (ACUS) also published its latest recommendation for agency improvement. Continue Reading

SCOTUS Upholds Obamacare Subsidies at Chevron “0” – Cautions to Congress and the Agencies

Posted in Agency Authority, Judicial Review & Remedies

USSC SealThe United States Supreme Court (SCOTUS) today decided, in King v. Burwell, that the Patient Protection and Affordable Care Act (Obamacare or PPACA) permitted health care insurance premium tax subsidies for those enrolled in Federal Exchanges, not just State Exchanges. But there is a catch: SCOTUS found Obamacare so poorly written that ambiguity must be resolved on statutory purpose, not statutory text, and SCOTUS gave no deference to the Internal Revenue Service (IRS) regulations under review, concluding that Congress could not have intended to delegate regulatory authority to the IRS. Much celebrated for saving Obamacare, the decision has a significant regulatory downside. Continue Reading

SCOTUS Orders Just Compensation for a Regulatory Taking: Agency Regulations Could Endanger the Public Fisc

Posted in Constitutional Issues in Regulations

USSC SealThe United States Supreme Court (SCOTUS) today ruled in Horne v. Department of Agriculture that the government must give just compensation for personal property actually taken in agency price support programs. Horne clarifies how the United States Constitution’s “Just Compensation” or “Takings” clause limits one regulatory program. Future litigation applying Horne’s teachings to other agency regulations may foist the government on the horns of a regulatory or fiscal dilemma. Continue Reading

Monday Morning Regulatory Review – 6/22/15: Truck Emissions Standards & Orphan Drugs Revisited

Posted in Agency Authority, Regulatory Process

dawn over the capitol aocWhile we await the major decisions of the year by the United States Supreme Court (SCOTUS), the regulatory process was relatively quiet last week. The most significant activity focused on proposed emission standards for heavy duty trucks and a proposed rethinking of the orphan drug program, both of which deserve critical review for regulatory process issues. Continue Reading