FEDERAL REGULATORY READING LIST: Resources for New Leaders at EPA and FWS

epa-logo-vertjpg-eb7a3700b9f49381

US-FishAndWildlifeService-Logo.svg*Note: This is the fourth in a series of posts compiling Washington Legal Foundation papers, briefs, regulatory comments, and blog commentaries relevant to critical legal and constitutional issues facing new senior leaders at specific federal agencies. To read posts addressing other federal agencies, click here.

Few agencies have been more active in the past eight years than the Environmental Protection Agency (EPA). With its singular, near-myopic focus on combatting climate change, EPA has issued a series of regulations that not only threaten to raise energy costs dramatically, but have already cost tens of thousands of Americans their livelihoods. Similarly, the Department of Interior’s Fish & Wildlife Service (FWS) has continued to expand the scope of the Endangered Species Act (ESA), among other federal laws, in ways that fail to strike a proper balance between safeguarding ecological health and respecting private property rights and other individual and business civil liberties.

Through its public-interest litigation, publications, and other advocacy, WLF has influenced debates over many EPA and FWS policies and actions with timely papers and blog commentaries, and weighed in directly through regulatory comments and amicus briefs. Those activities have resulted in an impressive body of reference materials that are instructive for new leadership in the two agencies. Below we provide a summary of and links to those documents to simplify access to relevant WLF work product in specific areas. Continue reading

FTC Must Refocus on Harm to Consumers and Competition

FTC_Man_Controlling_Trade

Federal agencies regularly use statistics to demonstrate their relevance and justify their exorbitant budgets. The Justice Department, for instance, boasts about the billions it brought in from False Claims Act lawsuits last year. The Environmental Protection Agency brags about the amount of fines and years in jail resulting from its enforcement actions in 2016. But the public is rarely provided concrete evidence of how those incarcerations and billions in fines, say, actually reduce contracting fraud or improve the environment.

So, too, with the Federal Trade Commission. In recent years, FTC hasn’t missed an opportunity to tout its statistical successes to the public and congressional appropriators. In the process of piling up the number of cases brought and fines extracted trumpeted by Chairwoman Edith Ramirez in her resignation press release, however, a critical limitation on FTC’s mission and authority has taken a backseat: the need to prove consumer harm. Continue reading

EPA Uses “Sue and Settle” to Impose Regulations on Unsuspecting Industries

EPA-LogoIn recent years, EPA and other federal agencies have sought ways to circumvent the strictures of notice-and-comment rulemaking. One popular method became known as “sue and settle.”

Here’s how it works: An advocacy group files suit demanding that a federal agency impose new or stricter regulatory standards on a business or even an entire industry. Instead of defending, the agency accedes to the activist group’s demands, negotiates a private agreement, and then seeks court approval through the consent-decree process. Some consent decrees have arisen from lawsuits that demand an agency perform a nondiscretionary statutory mandate that it has failed to implement, while others call for entirely new uses of regulators’ discretionary authority. Sue-and-settle agreements frequently shorten the amount of time for public comment on the agency action arising from the settlement or curtail the time an agency has to review public comments before finalizing a rule. Continue reading

FEDERAL REGULATORY READING LIST: Resources for New Leaders at DOJ

DOJ*Note: This is the third in a series of posts compiling Washington Legal Foundation papers, briefs, regulatory comments, and blog commentaries relevant to critical legal and constitutional issues facing new senior leaders at specific federal regulatory agencies. To read posts addressing other federal agencies, click here.

As the federal government’s primary prosecutor, the Department of Justice (DOJ) serves an important role in enforcing criminal penalties.  However, DOJ frequently oversteps its bounds and advances overzealous enforcement policies.

Through its public-interest litigation, publishing, and other advocacy, WLF influenced debates over DOJ’s recent policies and actions with timely papers and blog commentaries, and weighed in directly through amicus briefs.  Those activities have resulted in an impressive body of reference materials that are instructive for new leadership in the agency.  This post provides a summary of and links to those documents below to simplify access to relevant work product from WLF in each of those areas.

Overcriminalization Timeline

In November 2015, WLF released the third edition of its Timeline: Federal Erosion of Business Civil Liberties (Overcriminalization Timeline).  Each category in the Timeline reflects a separate concern with DOJ’s approach to white-collar criminal enforcement: mens rea, DOJ criminal enforcement, attorney-client and work product privileges, deferred prosecution and non-prosecution agreements, and criminal sentencing. Continue reading

US House of Representatives Disapproves OSHA Rule Recently Analyzed in WLF Paper

oshaThe US House of Representatives passed a resolution on March 1, 2017 under the Congressional Review Act (CRA) disapproving an Occupational Safety and Health Administration (OSHA) rule, “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness.”

A February 24, 2017 Washington Legal Foundation Legal Opinion Letter, OSHA’s Midnight Attempt to Overrule Federal Court’s Decision Is Ripe for Rescission, explained how the late-December 2016 rule essentially overturned a 2012 federal appeals court decision. That decision held that an OSHA recordkeeping rule’s continuing obligation to make or update records conflicted directly with the Occupational Safety and Health Act’s six-month statute of limitations. The WLF paper’s author, Eric J. Conn, Co-Founder and Chair of the OSHA Practice at Conn Maciel Carey PLLC, wrote of the rule acted on by the House:

This is an untenable policy for the nation’s employers, which are entitled to a short, fixed period of repose in order to fairly defend OSHA citations.  The new rule also undermines the OSH Act’s intent to encourage prompt resolution of workplace-safety hazards.  Following OSHA’s logic, were OSHA to extend the retention period in § 1904.33(a) from five to ten to 30 years, the statute of limitations for recordkeeping citations would be extended with it, further subverting Congress’ intent.

Action of the OSHA rule now moves to the US Senate, which would consider a similar CRA resolution.

Change Coming for SEC’s Controversial Conflict Minerals Rule

Featured Expert Contributor — Corporate Governance/Securities Law

bainbridgeStephen M. Bainbridge, William D. Warren Distinguished Professor of Law, UCLA School of Law.

Section 1502 of the 2010 Dodd-Frank Act required the Securities and Exchange Commission (SEC) to develop disclosure rules requiring public companies to disclose whether their products contained “conflict minerals.” The minerals in question included cassiterite, columbite-tantalite, gold, wolframite, or their derivatives, all of which are used in a variety of common products, including computers, smart phones, and other everyday technology. In order to be deemed conflict minerals, they had to be sourced from the Democratic Republic of the Congo (DRC) or its adjoining countries. Continue reading

Are Anti-SLAPP Statutes Toothless in Federal Courts?

cnnAs the Internet increasingly has become the dominant means of conveying both facts and opinions, the number of defamation and other speech-related lawsuits filed in state and federal courts has risen markedly. Responding to what some lawmakers characterize as “strategic lawsuits against public participation” (SLAPP)—suits aimed at suppressing legitimate speech or public debate through imposing the financial burdens of litigation—many states have enacted so-called anti-SLAPP statutes. One characteristic feature of all anti-SLAPP statutes is that they provide an expedited mechanism whereby a defendant can have a qualifying SLAPP suit dismissed quickly. Continue reading