The Checks and Balances Letter delivers news and information from Ballotpedia's Administrative State Project, including pivotal actions at the federal and state levels related to the separation of powers, due process and the rule of law.
This edition:
In this month’s edition of Checks and Balances, we note the renunciation of the Obama administration’s broad enforcement of a key labor rule; the “reluctant” judicial restraint imposed upon an unsupported global warming lawsuit; and the Trump administration’s proposal to streamline one of the nation’s most problematic permitting regimes.
At the state level, we highlight a clash of land use authority between the state of California and the federal government, and the warnings against states’ regulatory zealotry from the U.S. Chamber of Commerce. Our feature examines the hefty costs of online privacy regulation.
In Washington
A reset on fair labor standards
-
What’s the story? In a major regulatory shift, the U.S. Department of Labor (DOL) narrowed a rule that held companies liable for the labor and employment policies of franchisees or contractors.
-
The new rule supplants the Obama administration’s particularly expansive interpretation of a 60-year-old provision of the Fair Labor Standards Act, which held businesses liable for the employment policies of related companies.
-
The new rule establishes a four-part test for determining whether a company is a joint employer of another company’s workers, including whether the company hires or fires an employee; supervises or controls work schedules; sets pay rates; and maintains employment records. Any one of the factors may be relevant, according to the DOL, but the determination of “joint employment” is based on an evaluation of all four criteria.
-
Writing in The Wall Street Journal, DOL Secretary Eugene Scalia and White House Chief of Staff Mick Mulvaney said: “The new rule also gives companies in traditional contracting and franchising relationships confidence that they can demand certain basic standards from suppliers or franchisees—like effective antiharassment policies and compliance with employment laws—without themselves being deemed the employer of the other company’s workers. That will help companies promote fair working conditions without facing unwarranted regulatory costs.”
-
Want to go deeper?
A “reluctant” check on judicial activism
-
What’s the story? A divided panel of the U.S. Court of Appeals for the Ninth Circuit on January 17 dismissed Juliana v. United States, a case in which a group of children alleged that the federal government violated their constitutional right to a future unaffected by man-made global warming.
-
Despite the lack of a constitutional right to uniform weather, the plaintiffs sought a court-monitored plan to mitigate climate change. Although lacking any legal merit, the case was allowed to proceed by U.S. District Judge Ann Aiken—until, that is, a majority of the Ninth Circuit “reluctantly” concluded that “the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box. That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.”
-
Want to go deeper?
White House targets protracted, politicized permitting
-
What’s the story? In an attempt to streamline the environmental permitting process—among the most politicized bureaucracies in government—the Trump administration is proposing major reforms to the infamous National Environmental Policy Act (NEPA).
-
The 1969 act requires federal agencies to assess the potential aesthetic, historic, cultural, economic, and social effects of public works projects and other major government actions.
-
The average time to complete a NEPA impact assessment of a transportation project—just one of several permitting hurdles—has expanded from 2.2 years in the 1970s to 4.4 years in the 1980s, to 5.1 years between 1995 and 2001, to 6.6 years in 2011. NEPA assessments are often prolonged by litigation by environmental interest groups intent on delaying or halting infrastructure development.
-
The proposed rule would establish time limits of two years to complete an environmental impact statement and one year to complete an environmental assessment. The proposed rule also specifies page limits for NEPA reports (which in some cases run thousands of pages) and clarifies key terms.
-
Opponents claim that the reforms would constitute a rollback of environmental protection.
-
Public comments on the proposed rule may be submitted until March 10, 2020. The White House Council on Environmental Quality will hold a public hearing in Denver, Colorado, on February 11, 2020, and in Washington D.C. on February 25, 2020.
- Want to go deeper?
In the states
Feds and state clash over land use control
-
What’s the story? Highlighting the federal/state tensions over land use, California is suing the federal Bureau of Land Management (BLM) to halt consideration of oil and gas extraction on more than one million acres of public lands.
-
The BLM lifted a five-year moratorium on such excavation after finding in December that “there are no adverse environmental impacts due to hydraulic fracturing that cannot be alleviated.” The decision allows the BLM to consider permit requests from drillers. However, projects will have to undergo site-specific environmental review before a permit can be issued.
-
The state’s lawsuit alleges that the BLM’s environmental review failed to adequately evaluate “the significant and adverse impacts” on communities in potentially affected counties, including Fresno, Kern, Kings, Madera, San Luis Obispo, Santa Barbara, Tulare, and Ventura. The state is also alleging that the federal government did not provide the public with adequate opportunity to comment on the new finding.
- Want to go deeper?
States breaching regulatory authority
-
What’s the story? In this year’s State of American Business speech, the CEO of the U.S. Chamber of Commerce warned of dire consequences from state lawmakers “thumbing their noses at federal laws and regulations they don’t like,” including net neutrality, fiduciary rules, and the classification of independent contractors.
-
According to Chamber CEO Tom Donohue, states’ “aggressive” regulation of the gig economy threatens “the business model that has revolutionized entire sectors … creating confusion and uncertainty for businesses and workers.
-
Also problematic, Donohue said, is the failure of Congress and the White House to address issues that are managed best at the federal level rather than through a patchwork of state rules and regulations.
-
Want to go deeper?
The high cost of government privacy edicts
California’s Consumer Privacy Act, the nation’s first comprehensive statute governing individual privacy rights, took effect on January 1. The state’s experience—including the attendant regulatory costs—should inform the current debate in Congress over a federal privacy statute. The impact assessment commissioned by California’s Department of Justice (CDOJ) indicates that the regulatory costs will be very high, and particularly onerous to smaller businesses—thereby further securing the dominance of the largest tech companies.
The California statute grants the following:
-
The right to know what personal information a business has collected about an individual, where it was sourced, what it is being used for, whether it is being disclosed or sold, and to whom.
-
Californians may request copies of the specific pieces of personal information that the business has collected, along with a variety of other categories of information.
-
The right to “opt out” of the sale of personal information to third parties (or a parental opt out for youth under 16 years old). Companies may not charge different prices for service depending on whether users allow the sale of their information—the typical “cost” of free service.
-
The right to demand deletion of personal information (with some exceptions).
Similar rights are under consideration on Capitol Hill.
In promulgating the rules, the CDOJ retained Berkeley Economic Advising and Research LLC to prepare a regulatory impact assessment. According to the firm, the initial cost of compliance will be approximately $55 billion—or the equivalent of 1.8 percent of California’s Gross State Product in 2018.
The full cost analysis can be viewed here: Standardized Regulatory Impact Assessment: California Consumer Privacy Act of 2018 Regulations
Regulatory tally: 2019 in review
-
The Trump administration added a total of 72,564 pages to the Federal Register in 2019—a 6.5% increase from the 2018 total of 68,082 pages and a 17% increase from the 2017 total of 61,950 pages.
-
The 2019, 2018, and 2017 editions of the Federal Register rank as the three lowest page totals since 2001, when the Federal Register reached 64,438 pages.
-
Between 2009-2016, the Federal Register averaged 80,420 pages. The Federal Register hit an all-time high of 95,894 pages in 2016.
-
The Trump administration added an average of 1,369 pages to the Federal Register each week in 2019. Over the course of the Obama administration, the Federal Register increased by an average of 1,658 pages per week.
-
The 2019 Federal Register included a total of 27,167 documents: 21,804 notices, 268 presidential documents, 2,105 proposed rules, and 2,964 rules.
- Want to go deeper?
OIRA’s 2019 regulatory review activity included:
-
Review of 475 significant regulatory actions. Between 2009-2016, the Obama administration reviewed an average of 545 significant regulatory actions each year.
-
In 2018, the Trump administration reviewed 355 significant rules. In 2017, the Trump administration reviewed 237 significant rules.
-
Sixteen rules approved without change; 27 rules withdrawn; three rules submitted improperly; recommended changes to 428 proposed rules.
-
As of January 3, 2020, OIRA’s website listed 132 regulatory actions under review.
-
Want to go deeper?
|
