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Federal Regulations Advisor

Insight and Commentary on U.S. Government Regulatory Affairs

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

Monday Morning Regulatory Review – 6/15/15: Final Rules, not Proposed; Open Internet Unstayed & Effective; Complete Agency Rulemaking Records; Aircraft Engine Endangerment; & Food Safety Returns

Posted in Agency Authority, Judicial Process, Regulatory Process

dawn over the capitol aocFederal courts reminded by agencies and litigators of lessons they should have previously learned last week, while agencies banked more fuel for future regulatory fires. The United States Court of Appeals for the District of Columbia Circuit reiterated that only final rules, not proposed rules, are subject to judicial review, and it also denied a motion to a stay of the recently promulgated internet as utility rules. Elsewhere in the same courthouse, the district court reiterated the requirement that agencies produce a complete administrative record of a rulemaking, not merely the documents that the agency believes sufficient. In the regulatory process, the Environmental Protection Agency (EPA) took the first step toward regulating aircraft engine emissions, while the Food and Drug Administration (FDA) transmitted economically significant food safety rules to interagency and executive review. Continue Reading

Monday Morning Regulatory Review – 6/8/15: A Good Week for EPA; NLRB Case Representation Challenges; & More H-2B Litigation

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

dawn over the capitol aocThis week, litigation updates: The United States Court of Appeals for the District of Columbia Circuit last week cleared out a myriad of challenges to Environmental Protection Agency (EPA) regulations and decisions based on regulations – all in favor of the EPA. The National Labor Relations Board (NLRB) also succeeded in defending their second union representation election rule. A challenge, however, attacked the Department of Homeland Security (DHS) and Department of Labor (DOL) recent responses to the vacatur of past H-2B non-immigrant labor regulations. Continue Reading

Monday Morning Regulatory Review – 6/1/15: Final Waters of the United States; Proposed RFS Returns; SCOTUS in June; & Immigration Executive Action Non-Action

Posted in Agency Authority, Judicial Review & Remedies

dawn over the capitol aocThis week’s review focuses on two significant environmental regulations by the Environmental Protection Agency (EPA): preliminary release of a final definition of “waters of the United States” and release of a proposed rule to establish multiple years of volume requirements for renewable fuels, at least in part in response to a proposed consent decree. On the litigation side, the United States Supreme Court (SCOTUS) administrative law decisions will highlight the remainder of June. On the other hand, SCOTUS will not soon see a request to review the Administration’s immigration executive action. Continue Reading

5th Circuit Continues Temporary Bar of Immigration Executive Action

Posted in Agency Authority, Judicial Review & Remedies

Fifth-Circuit-SealThe United States Court of Appeals for the Fifth Circuit, in an extensive but divided panel opinion, today denied the Obama Administration’s request to stay a preliminary injunction of its immigration executive action to grant work authorization to several million aliens. Texas and 25 other states challenged the specific executive action claiming (among other things) that the government was required to, but did not, promulgate a substantive rule under the Administrative Procedure Act (APA). The district court determined that Texas was likely to succeed on this procedural APA claim and temporarily enjoined implementation of the program pending final resolution of the merits. The government appealed the preliminary injunction and moved for a stay pending resolution of the merits of that appeal. Finding that the government was unlikely to succeed on the merits of the appeal from the preliminary injunction, a divided panel of the Fifth Circuit denied the motion for a stay and a request to narrow the scope of the injunction. Continue Reading

Tuesday Morning Regulatory Review – 5/26/15: Tailoring Snakes; COOL Trade; Spring 2015 Unified Agenda; & Approaching WOTUS Storm

Posted in Agency Authority, Executive - OMB Review, Judicial Review & Remedies

iwo jima at dawn govWelcome back from the Memorial Day holiday with a slightly delayed review of last week’s highlights in regulatory practice. As expected, the United States District Court for the District of Columbia entered a tailored preliminary injunction of the Department of the Interior (DOI)’s regulation of interstate transfers of certain harmful snakes. The World Trade Organization may have set in motion further Country of Original Labeling (COOL) regulatory efforts by finding that the regulations violated United States trade obligations. The Office of Management and Budget (OMB) released the Administration’s current regulatory planning – the 2015 Spring Unified Agenda. One rule that may meet its planned release could be the controversial Environmental Protection Agency (EPA) definition of “Waters of the United States.” Continue Reading