In another Executive Order, the President of the United States (POTUS) directed subordinates to reconsider certain rules, but this time included a process change that has more subtle process implications. The “deadline” for filing joint resolutions to set aside regulations from a prior Administration appears to have passed, but that may mean very little. And… Continue Reading
Regulatory practice remains in a curious near-catatonic state two months after the inauguration of a new Administration. Legislation is amputating prior rules, almost no affirmative regulatory activity is noticeable, and judicial review has slowed markedly while awaiting the Administrative to state of its intentions. Doctrinal development has all but ceased for the time being.
The Administration attempts to move toward a normal flow in the regulatory process as the docket thaws ever so slightly and it instructs agencies on the process of establishing their regulatory agendas. Old regulations, however, sometimes die ignominious deaths, such as removal from the Code of Federal Regulations after vacatur, while others fate is so… Continue Reading
In two very different cases, one district court found that an agency has a nondiscretionary duty to conduct detailed analysis under a statute in taking many different actions, while another district court found that an agency erred in dismissing an appeal because it misinterpreted its own regulations as mandatory when they were clearly discretionary. An… Continue Reading
A summer lull in regulatory practice provides two significant actions are worth noting. The first major challenge to the Administration’s theoretical Social Cost of Carbon (SCC) came up short – as did a bevy of other challenges in a court of appeals. At the other end of the procedural spectrum, an agency publishes today a… Continue Reading
Independence Day – a day to celebrate the right to choose between praising or criticizing the administrative state – or both. Several courts took exception from Administration regulatory actions in the past week, including a regulation that exceeded the agency’s authority, a regulation that likely failed to comport with a number of superior requirements, and… Continue Reading
A court decision upholding the controversial net neutrality rule dominated regulatory practice last week but only for a dearth of other news. Two proposed rules deserve attention: another proposal to limit arbitration and class action waiver clauses and a proposal to remove affirmative defenses in certain environmental litigation.
Esoterica seem to dominate regulatory practice last week. Structure and compliance issues dominated regulatory litigation highlights with the demise of an inspection regulation for violation of constitutional standards, the affirmance of another rule against facial attack rather than as applied attack, and discipline of an official for refusal to violate a regulation. In agency proposals,… Continue Reading
The United States Supreme Court (SCOTUS) decision in United States Army Corps of Engineers v. Hawkes Co. last Monday reverberated on Friday in United States Court of Appeals for the District of Columbia Circuit in dynamic Fair Labor Standards Act (FLSA) litigation. In two different district courts, expected litigation challenged another Department of Labor (DOL)… Continue Reading
The long-running saga of the Federal Communications Commission (FCC) attempts to provide diversity in the broadcast industry pushed forward by a court last week. Another court, however, faces the daunting task of sorting out whether a high-profile “Dear Colleague” “guidance” letter actually constitutes a rule that the agency must promulgate through Administrative Procedure Act (APA)… Continue Reading
Highlights with no surprises in regulatory practice last week focused on the rush to complete regulatory actions. The Administration issued the controversial tobacco “deeming rule” and a vaping manufacturer immediately sued. A new electronic reporting requirement must be challenged in affirmative pre-enforcement litigation because the underlying statute may bar challenges to the regulations in defensive… Continue Reading
Regulatory practice litigation highlights over the past two weeks include the latest round of applications to stay the Administration’s Clean Power Plan, another problematic rework of Medicare rules for hospitals, and a consent decree to propose superfund insurance 30 years after authorization. On the rulemaking front, the Small Business Administration (SBA) completed critical size standards… Continue Reading
The United States Supreme Court (SCOTUS) returned to one of the thorniest of briar patches of statutory imprecision and jurisdictional delegation, the Clean Water Act (CWA). Another regulatory issue likely to eventually reach SCOTUS revolves on the scope of First Amendment rights and forced corporate speech, currently joined in one agency’s proposed rule. Two other… Continue Reading
The United States Supreme Court (SCOTUS) granted certiorari in seven Obamacare contraceptive coverage cases signaling the return of an agency regulatory compliance issue, not a constitutional or “rights” issue. Still noteworthy, however, are two other recent actions: the Securities and Exchange Commission (SEC) adoption of crowdfunding rules and the Environmental Protection Agency (EPA) publication of… Continue Reading
New food safety rules and a proposed common rule on protection of human subjects in research deserve attention in the regulatory process. An unsurprising denial of an extraordinary writ and an unsurprising petition for certiorari deserve as much attention as a surprising injunction against an insurance coverage regulation in the judicial process.
Litigation 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,… Continue Reading
This 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… Continue Reading
For some reason, today seems to be Labor Day – that is, all of the significant actions we cover deal with the regulation of employment of some type. Today focuses on two rules of general applicability and three rules dealing with employment requirements of government contractors. The United States Supreme Court (SCOTUS) surprised many with… Continue Reading
Two highly technical cases from the past week illustrate the complexity of invoking federal jurisdiction to challenge administrative action: one, a failure to sufficiently allege that the harm was imposed by the governmental action and is redressable by the court, and the other an attempt to enforce an interpretation of potentially conflicting statues that would… Continue Reading
The Administration released new and expected revisions and proposals to Obamacare (Patient Protection and Affordable Care Act or PPACA) regulations to address exemption from the contraceptives mandate for non-profit and for-profit organizations in light of recent adverse United States Supreme Court (SCOTUS) decisions. One interim final rule (IFR) addresses non-profits related to religious institutions, while… Continue Reading
The holiday-shortened week was highlighted by judicial and Administration reaction to the United States Supreme Court (SCOTUS) decision in Burwell v. Hobby Lobby that the Administration failed to comply with the Religious Freedom Restoration Act (RFRA) in promulgating Obamacare preventative contraceptive care exemption regulations – and the issue will return frequently as the parties and… Continue Reading
The short holiday workweek produced few hard regulatory events although soft indications continue of the federal government’s intent to regulate the minutiae of daily life. The Department of Health and Human Services (HHS) published its final rule on long-term Obamacare exchange and insurance market standards and extended the comment period on several food labeling proposals. … Continue Reading
A crowded week of regulatory events means that some highlights must be left behind. Highlights of the week in review (and the litigation to come) include the Federal Communications Commission (FCC) reboot of its vacated net neutrality rules, the Department of Labor (DOL) Federal Mine Safety and Health Administration (FMSHA) release of its new coal… Continue Reading
Anthology of the highlights of the last week in regulatory practice is somewhat focuses on some large issues that drew immediate attention, even if the substantive resolutions are many years away. Foremost (of course) is the latest adjustment in Obamacare in Bulletins from the Department of Health and Human Services (HHS) Centers for Medicare and… Continue Reading