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A new memo from Take Back the Court, a group that advocates for court reform, seeks to put this issue squarely on the table for discussion among the Democratic presidential candidates. “With a Democratic president in charge of the administration and the regulatory process, we can expect right wing judges and justices to resume with vigor their multi-generation battle to do away with the modern regulatory state,” the memo warns. The memo places the Democratic candidates on notice: If one is elected president, he or she will face a “highly consequential battle” in the judiciary to undercut laws that require agencies to employ a good deal of discretion and the use of “expert-driven regulation” to achieve their ends. The occasion for this warning is a recent opinion written by Justice Brett M. Kavanaugh, which signaled that there may be five justices in place to carry out a long-cherished conservative effort to dramatically undercut the regulatory state.
Air pollution — mostly fine particulates, but also ozone and nitrous oxides — has risen in recent years, in part due to ongoing rollbacks of regulations relating to air pollution, leading to what a team of researchers at Carnegie Mellon estimate is nearly 10,000 extra deaths per year. Policymakers in the Trump administration seem determined to continue down this course. On November 11, Lisa Friedman of the New York Times reported on a draft memo circulating among Environmental Protection Agency officials that, if enacted, would sharply limit the kinds of scientific studies the agency can use to consider the impact of air pollution. Yet there’s good reason to believe the EPA and other global public health agencies should be moving in the opposite direction and considering a wider range of studies about the harms of air pollution. That’s because in addition to its impacts to lung and cardiovascular functioning, it seems increasingly clear that pollution has a significant effect on cognitive function over both the short and long term. A spate of studies released in recent years indicate that people work less efficiently and make more mistakes on higher-pollution days, and that long-term exposure to air pollution “ages” the brain and increases the odds of dementia. These consequences are not nearly as dramatic as dying, of course. But they are spread across a huge swath of the population. And since cognitive function is linked to almost everything else in life, the implications are potentially enormous.
The Food and Drug Administration can regulate e-cigarettes like it does conventional cigarettes, an appeals court said Tuesday, finding that the products are “indisputably highly addictive and pose health risks, especially to youth, that are not well understood.” The case before the U.S. Court of Appeals for the District of Columbia Circuit, brought by an e-cigarette manufacturer, was not about banning the sale of the devices and did not pose the question of whether e-cigarettes are more or less safe than traditional cigarettes. The issue for the court was whether the FDA has the authority to treat e-cigarettes as “tobacco products” and to subject the vaping products to the same set of rules and regulations as their conventional counterparts. The case is the first to be decided by a federal appeals court, among a set of lawsuits filed throughout the country.
More than 50 percent of Americans think that the government should provide more oversight of companies with industrial-sized animal feeding operations, according to a new poll. The survey of registered voters in Iowa and North Carolina from the Johns Hopkins Center for a Livable Future found broad support for oversight and regulation of factory farms and other large-scale animal operations, while much fewer Americans supported a reduction in such oversight. Fifty-seven percent of Americans said that a lot or a little more oversight was needed of the industry, while 29 percent said that the amount of government regulation should remain the same. Just 6 percent said that the government was too strict with the factory farming industry.
Recently, my colleague Sean Hecht and I jointly submitted a comment letter opposing a new EPA Proposed Rule that would roll back standards limiting methane emissions from oil and natural gas production, processing, transmission, and storage facilities. This Proposed Rule essentially revokes two Obama-era regulations, finalized in 2012 and 2016, that first established these methane emissions standards. Together, these Clean Air Act (CAA)-based regulations limit the amount of methane that facilities who produce, process, transmit, and store oil and natural gas can emit lawfully. EPA enacted the regulations under its Clean Air Act Section 111 authority to set New Source Performance Standards for air pollution sources. It’s certainly no surprise that the Trump administration EPA would seek to rescind methane regulations, especially those created by his predecessor. But it’s worth noting just how brazen this rollback truly is. In the Obama-era rules, EPA acknowledged that methane is a pollutant with harmful effects on the global climate and public health. Methane is a greenhouse gas with approximately 28-36 times the global warming potential of carbon dioxide. Methane, like other volatile organic compounds (VOCs), also contributes to ground-level ozone, which can harm lung tissue in individuals who live near the emissions source. EPA does not dispute these harms in the Proposed Rule, and even acknowledges that more methane will be emitted as a result of this Rule.
A coalition of 50 LGBTQ, HIV/AIDS and public health groups on Monday sent a letter to Facebook accusing the social media giant of allowing ads to run on the platform with dangerous misinformation about HIV prevention drugs. The ads, run on Facebook and Instagram by what seem to be personal-injury lawyers and entities affiliated with them, claim inaccurate side effects of Truvada for PrEP, a preventative pill. The law firms are allegedly using Facebook's ad programs to target gay and bisexual men who use the drug to join a lawsuit claiming negative side effects from the pill. The ads "are convincing at-risk individuals to avoid PrEP, invariably leading to avoidable HIV infections," according to the groups. According to the Centers for Disease Control and Prevention, PrEP "reduces the risk of getting HIV from sex by about 99% when taken daily." The groups, including GLAAD, the Human Rights Campaign and The Trevor Project, wrote in the letter that they had already contacted Facebook about the ads.
While families across the country celebrated Thanksgiving with their loved ones, more than 50,000 people in Port Neches, Tex., were forced to evacuate from their homes and spend the holiday in makeshift shelters. The reason? Two explosions at the Texas Petroleum Chemical plant sent flames into the sky, injured eight people, and released plumes of butadiene, a carcinogen, into the air. The disaster erupted six days after the Trump administration gutted Obama-era regulations meant to improve safety at 12,000 chemical plants around the country. It’s too soon to say whether these now abandoned rules would have made a difference in Port Neches. But there is no question that the communities that surround these thousands of plants are less safe now. This regulatory rollback gives chemical plants across the country a free pass, in pursuit of greater profits, to operate in a way that endangers families and workers.
With our collective gaze distracted by impeachment hearings, President Trump’s Environmental Protection Agency is engaging in serious mischief. Word has leaked that the agency is poised to finalize a rule to limit the types of scientific studies that can be used to create new regulations. The Orwellian-named EPA proposal, “Strengthening Transparency in Regulatory Science,” undermines the agency’s work and effectiveness. Rather than enabling the EPA the use of the best science to protect the public — science that has undergone quality checks and peer review — the revised rule goes in the opposite direction and forces regulators to ignore foundational public health studies. Widespread opposition to the original proposal, drawing 600,000 comments and criticism from many of the world’s leading scientific journals and organizations, is being ignored, and the EPA is cavalierly moving to make the rule even more anti-science. Why would we want to limit the use of the best available science in decisions about air pollution, chemical safety, lead exposure and more? The flawed rationale for the rule is that these studies are “not transparent” because they cannot release their raw data, which contains confidential information such as personal health data. This is pretext. Tragically, the real reason to undermine the effectiveness of the EPA is to support industry’s bottom line at the expense of the public’s health.
There is more we can do to enhance economic mobility, which not only help individuals but also boosts the economy. A helpful template comes from the General Data Protection Regulation (GDPR), the comprehensive privacy law that has applied since 2018 in the European Union. Indeed, the GDPR is part of the impetus for congressional action, especially given that American Big Tech companies already comply with the GDPR for their European consumers — and the sky has not fallen. Here are some provisions that protect our European counterparts with the potential to advance both privacy and economic justice on our shores. (Some of the proposed bills contain some of these measures; none contains them all.) First, people should have a right to an explanation when automated decision-making denies them access to life necessities such as jobs and housing. Such explanations could help ferret out erroneous data, incorrect coding and biases. Second, people should have ability to recourse to a human decision-maker to challenge automated decisions. Keeping a “human in the loop” enhances transparency and accountability. Third, people should have the right to delete personal data in the hands of third parties to gain a clean digital slate, free from stigmatization and outdated inferences. Fourth, people should have an ongoing voice in the data regimes that govern them. The Cantwell bill would require impact assessments of algorithms to screen for bias. But in the EU, similar impact assessments also include opportunities for stakeholders to share their perspectives. Fifth, any new privacy law needs vigorous enforcement, including a private right of action, which the Democrats favor and Republicans oppose. Rights without remedies are meaningless. Finally, the Cantwell and Wicker bills cover private businesses but the GDPR also regulates government agencies and employers when they collect and process data. Given the importance of the safety net in the lives of low-income people, and the technologically-driven stresses in the low-wage workplace, data privacy laws eventually will need to cover these entities as well.
Political theory has evolved since 1691, but the basic idea has remained the same: At a minimum, society needs a certain number of rules to be created—and then enforced—if it is to function and prosper well. That same theme was reflected in a recent lecture at the University of Pennsylvania Law School featuring Richard Cordray, the first Director of the Consumer Financial Protection Bureau (CFPB). Cordray argued that a certain amount of regulation is needed for businesses to prosper in today’s society. Perhaps it is little surprise that the head of a regulatory agency would find regulation to be good for business. But what might be more surprising is that Cordray found, when heading the CFPB, that many businesses actually solicited regulations from the agency. Businesses often wanted detailed and specific regulations. These businesses wanted regulations because they were already constrained by statutes passed by the U.S. Congress—but the statutes were usually worded in broad language. To make statutes clearer and more specific, they must be interpreted either by agencies through regulations or by courts in resolving individual lawsuits. But unlike most agency regulations, judgments made by courts often rely on general standards and do not necessarily provide much clarity or specificity. Although judgments made by courts might afford greater latitude of business activity, decisions made by a regulatory agency provide greater clarity, efficiency, consistency, and expertise, Cordray argued. Cordray illustrated this point with debt collection law, which, based on just the statue, is generally sparse and even ambiguous.
State and local governments are moving to ban flavored e-cigarette products in response to the Trump administration’s lack of action on rising youth vaping rates. The bans are being pushed by influential anti-tobacco advocates and public health groups, who argue flavors like mint and fruit have helped create a youth vaping epidemic. While Massachusetts recently became the first state to ban all flavored tobacco products, more states could follow in 2020 when legislatures reconvene. Myers said he expects debates in eight to 12 state legislatures next year, including in Hawaii, Illinois, California, Minnesota and Delaware. New York Gov. Andrew Cuomo (D) and Washington Gov. Jay Inslee (D) have both vowed to introduce bills banning flavored e-cigarettes in the Democratic-controlled legislatures in their states next year New Jersey’s legislature is considering a vaping flavors ban, which Gov. Phil Murphy (D) has said he supports. Legislators in Maryland and Rhode Island, as well as local officials in Washington, D.C., have also expressed interest in introducing flavor bans next year.
In 2015, the California regulator overseeing PG&E Corp. opened an inquiry into whether the state’s largest utility put enough priority on safety. Since then, a federal jury has found PG&E guilty of violating safety regulations for natural-gas pipelines and a federal judge later placed it on criminal probation. Its electrical equipment has sparked more than a fire a day on average since 2014—more than 400 last year—including wildfires that killed more than 100 people. It filed for bankruptcy protection this year, citing $30 billion in fire-related liabilities, and started blacking out millions of customers to try to avoid sparking blazes during strong winds. On Friday, it agreed to pay $13.5 billion to wildfire victims in a settlement deal. The regulator, meanwhile, is still investigating. PG&E’s collapse has exposed the California Public Utilities Commission’s failure to hold the utility accountable on safety. The CPUC for years focused attention elsewhere, on setting rates and pushing for cleaner power. Now, the agency tasked with regulating utility safety is struggling to refocus on the issue while also grappling with its failure to prevent the state’s second electricity crisis in two decades.
Hodges didn’t stop with lobbyists. Between February 2019 and today, he and his wife Tina have contributed $688,800 to Republican candidates for Congress, the Republican campaign arm of the House, the Republican National Committee, the Trump Super PAC America First Action, and other conservative political action committees. Hodges even hosted a fundraiser in Tennessee this October with Vice President Mike Pence. Only $1,500 of the Hodges’s $688,800 went to Democrats: There was also $1,000 to David Scott of Georgia, a member of the House Financial Services Committee who often votes in a pro-business fashion, and $500 to Tulsi Gabbard, who is currently running for president. Within six months of making all those donations, Hodges told his colleagues on the webinar that the White House was on board with removing the payment provisions. And a month later, in October of this year, five members of Congress who took money from Hodges and his wife questioned Kraninger in the House Financial Services Committee about the payment provisions, a rather obscure line of questioning for a congressional hearing.
People of every political persuasion give President Trump negative marks on his handling of health care and poverty. When asked what they believed is the most important issue that Trump and Congress should address in the coming year, “making health care more affordable” was cited by a majority of voters. Only a third of the entire electorate supported cutting Social Security, Medicare and Medicaid in an effort to address the national debt. And 8 in 10 Democrats and three-fourths of independents believe corporations have too much power and should be “strongly regulated” — something even 49 percent of Republicans also signed off on.
The key political strategy—as often as not carried out unconsciously—was controlling the terms of debate and the subjects of discussion. Rather than argue whether or not ordinary citizens should be forced to take part in America’s wars, or if a professional military was a threat to democracy, economist Walter Oi changed the subject to efficiency, arguing that a volunteer army “would be good for the economy.” The draft was subsequently abolished. Similar political jujitsu brought down one pillar after another of the New Deal state. Predictions of faster, cheaper service from economist Alfred Kahn obliterated regulations on airlines and trucking, thereby evading discussions of whether all American communities should be connected to the same transport network. Preposterous revisionist history from Robert Bork recast antitrust law as solely about protecting the consumer, instead of protecting society as a whole from concentrated economic power. This allowed merging corporations to claim they would reduce prices through economies of scale, and all but ended antitrust enforcement. Predictions of skyrocketing growth from “comparative advantage” brought down restrictions on international trade. The absolutely crack-brained “efficient market hypothesis”—featured in loony theories like economist Eugene Fama’s 1965 paper arguing that stock prices “fully reflected all available information,” and thus ruling out financial bubbles by definition—led to repeated rounds of financial deregulation. Nearly all of these moves led to disaster. Ending the draft was arguably morally defensible, but also enabled the succeeding generation of gruesome military adventurism by placing no broad sacrifice upon the public. Ending antitrust enforcement led to a quick roll-up of American markets into monopolies and oligopolies. Ending trade controls, especially with China, devastated America’s industrial base and threw millions out of work. And pretending that financial crises are impossible didn’t stop them from happening like clockwork—culminating in the global disaster of 2008. Even airline deregulation has been heavily overrated. As Matt Stoller argues, data showing post-deregulation price declines fail to note that the trend line followed the pre-deregulation price decline almost exactly. Today, detailed regulation decisions are made by oligopolist executives instead of democratically accountable state authorities.
The 21st century has ushered in an era flooded with technological advancements that build on each other seemingly on a monthly basis. Just 20 years ago, children didn’t grow up with iPhones, tablets, and other devices vying for every waking second of their attention. Fast-forward to today and almost 90 percent of children have a cell phone by age 13. The rapid pace of this technological change has made it difficult to grasp its full effects on children. That’s why I introduced a bipartisan bill to help us understand how the dramatic changes we are living through in tech and media are affecting the physical and mental development of children, and how parents can be empowered to help their kids navigate this ever-changing environment. The Children and Media Research Advancement (CAMRA) Act would authorize the National Institutes of Health to conduct a study on technology and media’s effects on infants, children and adolescents in core areas of cognitive, physical and socio-emotional development.
This year, the government is on track to issue the lowest number of airline fines in history. Federal regulators insist they’re just doing their job and that the numbers represent an ebb in airline violations. But consumer advocates say it’s nothing short of a dereliction of duty. The Aviation Consumer Protection Division of the Transportation Department (DOT), which enforces federal consumer protection regulations, has issued seven aviation enforcement orders totaling $2.2 million in civil penalties in 2019. The previous low for enforcement actions, set in 2000, was nine. The DOT set a decade low for the dollar amount of fines last year, when it issued 16 enforcement orders totaling just $1.8 million in fines.
Trump’s overall attacks on science and massive rollbacks on environmental regulations and enforcement have made things much worse. A new report by the Union of Concerned Scientists (UCS) details how Trump’s policies subject marginalized low-income communities and communities of color to yet deeper levels of disproportionate neglect. Many studies show that such communities are far more likely than wealthier, white neighborhoods to live in close proximity to incinerators, heavy traffic zones, and industries handling toxic chemicals, spewing asthma-triggering and brain-damaging fumes. For instance, while African Americans make up 12.6 percent of the population, they account for 24.2 percent of people who live within a half-mile of a brownfield site, according to the Environmental Protection Agency (EPA). Brownfields, as defined by the EPA, are “a property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.” Latinos, who make up 18.1 percent of the population, make up 26.1 percent of people who live within a mile of a Superfund site. The EPA defines Superfund sites as places where hazardous waste is being “dumped, left out in the open, or otherwise improperly managed.” Despite this disproportionate horror, the UCS report says the Trump administration has launched the fewest number of criminal cases against polluters since the Clinton administration. In a staggering comparison, the number of EPA criminal enforcement cases concluded under Trump in his third fiscal year was less than half the number done under fellow Republican President George W. Bush, no environmental hero himself. The Trump EPA finished only 60 criminal enforcement cases, while the Bush EPA concluded 138 in its third fiscal year.
The House of Representatives on Wednesday approved an anti-robocall bill by an almost unanimous vote. The measure also enjoys support in the Senate, making it likely the legislation reaches President Trump's desk before the end of the year. The Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act, named after its sponsors in the House and Senate, Rep. Frank Pallone Jr. (D-N.J.) and Sen. John Thune (R-S.D.), was approved by a 417-3 margin. Reps. Justin Amash (I-Mich.), Andy Biggs (R-Ariz.) and Thomas Massie (R-Ky.) voted against the legislation. Massie had previously opposed robocall legislation, expressing concern about giving the Federal Communications Commission (FCC) too much authority. "Today the House will take strong bipartisan action to protect consumers from illegal robocalls," Pallone said on the House floor Wednesday. "A whopping 5.6 billion robocalls were made to Americans in November alone... Today, the House is giving Americans back control of their phones." Thune told reporters Tuesday that the Senate will vote on the bill, a result of months of bipartisan negotiations, either this week or next. The TRACED Act would require phone companies to block robocalls without charging customers any extra money and require most carriers in the U.S. ensure that calls are coming from real numbers. It would give government regulators more time to find scammers and penalize them more aggressively. It would also require the FCC to deliver reports to Congress about what action they are taking against illegal robocalling operations and oversee a group of companies tasked with investigating where robocalls are coming from in the first place. In addition, the act would push the Department of Justice to take action against illegal robocallers more often.
A coalition of 31 health, privacy and children's advocacy groups is pressing the government to subpoena tech companies for extensive information about how they monetize and amass personal information about children. The groups, including the Campaign for a Commercial-Free Childhood and American Academy of Pediatrics, say the Federal Trade Commission (FTC) needs to use its subpoena authority as it considers updating a decades-old children's privacy law.
A Senate committee has an opening this week to shed light on what is going on at OIRA under President Trump. Trump has nominated Paul J. Ray, OIRA’s acting administrator and a former law clerk to Supreme Court Justice Samuel Alito, to be OIRA’s next permanent head. A committee hearing today on Ray’s nomination—and the follow-up opportunity to pose written questions for the hearing record—will give senators leverage to demand specific answers to the hard questions about the legality and wisdom of the OIRA program. Ray would succeed Trump’s first OIRA head, a then-law professor, now federal appellate judge, Neomi Rao. In confirming Rao to the D.C. Circuit, the Senate Judiciary Committee should have probed her direction of the regulatory budget and cut-go programs. As the OIRA Administrator, Rao proved a Trump bulldog, making claims for the success of Trump’s deregulatory efforts that were seriously misleading. At today’s confirmation hearing, the Homeland Security and Governmental Affairs Committee should not repeat the Judiciary Committee’s mistake. It should find out why the administration thinks regulatory budgeting without statutory authority is lawful. It should probe how OIRA decides what the total cost of any agency’s annual regulatory agenda should be. It should demand meaningful public reporting of the tradeoffs that OIRA is forcing agencies to make. It should ask why OIRA’s website reveals so little of the office’s actual reasoning with regard to any agency’s permissible regulatory cost. Sadly, many Senate Republicans may be happy to overlook Trump’s overreach and OIRA’s excesses because of their own philosophical commitment to deregulation full stop. If the Trump administration is putting into place, even without authority, the kinds of deregulatory requirements these senators tried and failed to enact, they may be happy enough with the result to let the administration’s lawlessness pass without comment. One has to hope that, at some point, members of Congress show some protectiveness for the exclusivity of their legislative role even when they share the president’s party affiliation. Nearly 40 years after my brief stint at OMB, I remain proud of how carefully the career lawyers worked to assist in giving elected policy makers the best shot of embodying their initiative in a legally sound presidential order. This administration’s abandonment of that care now thrives mainly because of its obscurity. The Paul Ray confirmation is at least an opportunity to correct that.
Facebook’s policy on paid political advertisements has flaws that allow the spread of false information, the U.S. Democratic National Committee has said in a letter to Sheryl Sandberg, a top official of the social media giant. Facebook has been reviewing its policies following criticism from lawmakers and regulators over a decision not to fact-check ads run by politicians, with Chief Executive Mark Zuckerberg saying it does not want to stifle political speech. In the letter that Reuters obtained on Tuesday, the U.S. Democratic Party’s administrative and fundraising body has flagged its concerns to Sandberg, Facebook’s chief operating officer, and sought more transparency.
Banks are no longer required to file suspicious activity reports on customers who cultivate hemp, industry regulators said. A group of financial regulators on Tuesday clarified the compliance requirements for banks whose customers produce hemp, a variety of the cannabis plant that is often used for its fiber and generally doesn’t get people high. Suspicious activity reports identify potential criminal activity or transactions, which banks file to the U.S. Treasury Department’s financial crimes unit. Until recently, hemp production largely was banned under federal law. A farm bill signed into law last year by President Trump removed hemp from a list of federally controlled substances. The legislation also directed the U.S. Agriculture Department to regulate domestic production of the crop. Banks are still required to file reports on customers in the hemp business if they suspect suspicious activity, regulators said. The Treasury’s Financial Crimes Enforcement Network will issue additional guidance after further evaluation of the USDA’s rules governing hemp production, regulators said. FinCEN made the announcement along with the Federal Reserve, the Federal Deposit Insurance Corp., the Office of the Comptroller of the Currency and the Conference of State Bank Supervisors.
Key Democratic and Republican senators have offered dueling versions of legislation to create more privacy for Americans online in recent days. The competing bills highlighted how months of bipartisan negotiations have yet to yield a proposal both parties can back but have also raised hopes of boosting those efforts. The proposals — from the chairman and ranking member of the Senate Commerce Committee, which has jurisdiction over tech issues — show some substantive common ground. But there are still stark differences, with Republicans backing some of the tech industry’s top priorities while Democrats push tougher restrictions on how those companies handle data.
Data-driven innovation from the tech industry promises to improve productivity, competitiveness and growth across the global economy. But it also poses significant risks, such as hacking, data breaches, the exploitation of personal data and challenges involving artificial intelligence. These risks are compounded by underdeveloped or conflicting legal frameworks across the globe. World leaders should act now to enhance global regulatory cooperation to address challenges in the digital economy before a crisis forces them to do so. We’ve seen this story before. Similar warning lights were flashing in the financial system before the 2008 economic crisis: regulation lagging behind innovation; companies and governments failing to appreciate the build-up of risks; and ineffective international cooperation mechanisms among governments for assessing and addressing risks.