Weekly Review | Regulatory Review

IN NEWS

• The United States Court of Appeals for the Sixth Circuit has temporarily stayed the Federal Communications Commission’s (FCC) net neutrality rules, which were intended to ensure fast, open, and fair access to the internet nationwide. The rules are intended to address discriminatory practices, such as prioritizing paid content or slowing down some users’ internet connections, and impose transparency requirements. The FCC reinstated the rules after the Trump administration repealed them in 2017. Critics of the rules, however, argue that they unnecessarily expand government control over the internet. Petitioners successfully invoked Loper Bright Enterprises v. Raimondowho invalidated Chevron v. Natural Resources Defense Attorneyand the Sixth Circuit postponed implementation of the rules until at least August 5, 2024.
• California Gov. Gavin Newsom has signed a bill that prohibits California school districts from requiring staff to inform parents of their children’s gender identity and sexual orientation. The bill is a response to policies in many California school districts that require parents to be notified of changes in their children’s gender identity. Supporters of the bill say it will protect LGBTQ students and prevent schools from interfering in the relationship between parents and their children. Opponents say the bill destroys trust between school districts and parents and prevents schools from being transparent with parents.
• The United States Court of Appeals for the D.C. Circuit upheld the FCC’s decision to license 7,500 new SpaceX satellites to provide internet service to “unserved and underserved” regions. DISH, the owner of the satellites and a SpaceX competitor, argued that SpaceX’s new satellites would cause “unacceptable interference” to its satellites. Other groups raised concerns about the environmental impact of the satellites. The FCC declined to consider DISH’s evidence of interference and concluded that SpaceX’s satellites would not have a significant environmental impact. The D.C. Circuit found that the FCC’s decisions were “reasonable and reasonably explained.” The FCC’s approval is contingent on SpaceX obtaining a favorable ruling from the International Telecommunications Union, but in the meantime, SpaceX can deploy the satellites at its “own risk.”
• Many groups that rely on federal land have sued the Bureau of Land Management, seeking to overturn the final rule that seeks to protect the environment. The rule allows environmental protections to be considered “uses,” like other uses, such as grazing, under the Federal Land Policy and Management Act. In a press release, the groups challenging the rule argued that it “threatens generations of family ranching operations” in the United States “by undermining long-held management balances between multiple uses.” Two other lawsuits, one filed by North Dakota, Idaho, and Montana, and the other filed by Utah and Wyoming, similarly challenged the rule.
• The United States Court of Appeals for the Eighth Circuit held unconstitutional a Minnesota law that prevented 18- to 20-year-olds from obtaining a permit to carry a handgun. The court applied the plain text of the Second Amendment under the standards set forth in New York State Rifle and Pistol Association v. Bruen AND United States v RahimiThe court found that “law-abiding Minnesotans between the ages of 18 and 20 are unequivocally members of the people” protected by the Second Amendment, which “has no age limit.” The court further found that Minnesota had not met its burden of showing that the challenged law was consistent with the United States’ historic tradition of gun regulation.
• A judge in the United States District Court for the Central District of California has ruled that the U.S. Department of Veterans Affairs (VA) discriminated against homeless veterans through its housing practices in Los Angeles. The court found that the VA’s practice of leasing land to outside developers who impose income restrictions on housing hurt some of the most disadvantaged veterans, who had too many benefits to qualify for the housing. In his opinion, Judge David O. Carter ruled that for these veterans, their disabilities may “disqualify them from permanent supportive housing.”
• The Consumer Financial Protection Bureau (CFPB) has proposed new rules to regulate payday advance lenders — popular loans that workers take out to get their paychecks ahead of schedule. The proposed rules would clarify that many payday advance products qualify as consumer loans under the Truth in Lending Act and require disclosure of fees and interest. The CFPB found that the average worker takes a portion of nearly every biweekly paycheck in the form of a loan. CFPB Director Rohit Chopra explained that because most workers receive their paychecks after they finish work and many expenses require prepayment, people without significant savings can get stuck in “cycles of debt.” This cycle is exacerbated because workers also pay fees from lenders that charge early access fees or ask for “tips.” However, the rule would not impose new requirements on lenders.
• The Department of Defense has proposed a rule that would prohibit assistance to entertainment projects, such as documentaries or feature films, that are or are likely to be in compliance with requests from the People’s Republic of China (PRC) or the Chinese Communist Party. The proposed rule would seek to prevent censorship of entertainment content in order to promote the national interests of the PRC. The proposed rule would discuss information used by the Department of Defense to make decisions about support for entertainment projects.

WHAT WE’RE READING THIS WEEK

• In the article in Southern California Law ReviewJill Fisch, the Saul A. Fox Professor of Business Law at the University of Pennsylvania’s Carey Law School, and Adriana Robertson, the Donald N. Pritzker Professor of Business Law at the University of Chicago Law School, have criticized a Securities and Exchange Commission (SEC) rule that addresses greenwashing—the use of misleading names to pass off as socially responsible investment funds. To reduce investor confusion, the SEC amended the Investment Company Act to require mutual funds to invest at least 80 percent of their assets “consistent with the investment focus suggested by the fund’s name.” Fisch and Robertson argued that the amendment “is unlikely to reduce the potential for greenwashing” and “discourages innovation.” Fisch and Robertson argued that the rule prohibits legitimate investment strategies and places too high a requirement on mutual funds. Fisch and Robertson concluded that the existing evidence “does not justify additional regulatory intervention.”
• In a report released by the Urban Institute, Linda J. Blumberg and Michael Simpson, both researchers at the Institute, found that the public insurance plan offered by the Choose Medicare Act by Chris Murphy and Jeff Merkley did not reduce access to or affordability of health care services for racial minorities. Blumberg and Simpson found that the public option compensated providers at significantly lower rates than the standard rates for private insurance plans. Potential concerns about the plan included that health care providers would provide differential treatment to people paying through the public option versus the private option and that racial minorities might pay disproportionately through the public option. However, Blumberg and Simpson found that while white people would save the most under the reform, all races would see some savings in health care spending.
• In the essay in Administrative Law ReviewCass R. Sunstein, Robert Walmsley University Professor at Harvard Law School, has challenged the misconception that governments use behavioral science only to influence individual behavior. Instead, Sunstein has argued that behavioral science in policymaking also focuses on broad reforms for companies and others in areas such as occupational safety, the environment, and consumer protection. Sunstein has further argued that using behavioral science to influence individuals does not “crowd out” the effectiveness of large-scale systemic reforms in the way that other scholars have suggested. According to Sunstein, the use of “behavioral science in the administrative state can be counted among the most important achievements of recent decades” and will be a permanent fixture of the administrative state in the long term.

EDITORS CHOICE

• In the essay in Regulatory ReviewJesus M. Barajas, an assistant professor of environmental science and policy at the University of California, Davis, argued that regulation is necessary to address the unique transportation needs of rural and disadvantaged communities. Residents of rural communities without cars face additional challenges related to transportation challenges, such as reduced employment opportunities, social isolation and the inability to receive quality health care. Barajas said that solving the transportation problems faced by residents of rural communities requires solutions such as car sharing and lower transportation costs. Barajas also called for ongoing engagement with these communities to ensure that the needs of their residents are met.