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March 30, 2022 by Bill Funk

Notice & Comment Commentary: HHS Proposes to Rescind the SUNSET Rule

On the day before President Biden’s inauguration, the Department of Health and Human Services (HHS) adopted the Securing Updated and Necessary Statutory Evaluations Timely rule, colloquially known as the SUNSET Rule, because it would sunset any regulation that had not been assessed and, where required, reviewed within a specific timetable.

Specifically, it provided that all HHS regulations would expire at the end of: (i) five calendar years after the year that the regulation first becomes effective; (ii) ten calendar years after the year of the regulation’s promulgation; or (iii) ten calendar years after the last year in which HHS assessed and (if review of the regulation was required) reviewed the regulation, whichever is latest.

The purpose of the rule, according to HHS, was to incentivize the agency to undertake the reviews required under the Regulatory Flexibility Act (RFA). That Act requires agencies to have a plan for reviewing every ten years those regulations that have a significant effect on a substantial number of small entities, and each year to publish a list of those regulations that the agency …

March 29, 2022 by James Goodwin
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This op-ed was originally published by The Regulatory Review. Reprinted with permission.

The regulatory system, contrary to the claims of its conservative critics, is an indispensable part of the broader civic infrastructure on which our democracy is built. Significantly, the ability to exercise voting rights—the most visible and potent act of civic engagement—necessitates a stronger and more inclusive regulatory system.

Effective civic engagement is a skill that requires practice to develop and maintain, not unlike playing piano or speaking a foreign language. This reality is especially true of voting, which involves more than just turning out for elections. Discerning voters must understand the issues at stake, demand high-quality candidates, and monitor public officials' performance to hold them accountable.

Observers of the United States' constitutional system of governance have long praised the wide variety of social institutions that allow us to hone our civic engagement skills …

March 28, 2022 by Ian Campbell
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“Well behaved women seldom make history.”

This well-worn adage is no doubt true, but so too is its opposite. History is written for a purpose and, all too often, that purpose is to justify the status quo as a historical inevitability. Those women and men who defy the expectations of their time, who fight too often and too well against the injustices of the day, are mysteriously forgotten by those who write our history. In this way, women’s contributions to and leadership of the organized labor movement, though lionized within the movement itself, have largely escaped public consciousness.

Indeed, women led the battle for industrial democracy — even before they won the right to vote.

Perhaps the best known labor leader is Mother Jones. Born Mary Harris, Jones was an Irish immigrant who lost her husband and all four of her children to yellow fever and didn …

March 24, 2022 by M. Isabelle Chaudry
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Women’s History Month isn’t just a time to recognize achievements made throughout the decades to advance women’s rights and demand equity. It’s also an opportunity to celebrate women making history today, the ones in our unwritten history books.

For example, U.S. Supreme Court Justice nominee Ketanji Brown Jackson, if confirmed, will be the first Black woman to serve on the nation’s highest court. Judge Jackson, a former clerk for retiring Justice Stephen Breyer, graduated from Harvard Law School and served as a federal district and appellate court judge in Washington, D.C. Before serving as a judge, she worked for two years as a federal public defender, a vitally important role and an experience that few judges share. Indeed, she would be the first Supreme Court justice to ever have held such a position.

Shalanda Baker, a Member Scholar on leave …

March 22, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

In describing cost-benefit analysis to students, I've often told them that the "cost" side of the equation is pretty simple. And it does seem simple: just get some engineers to figure out how industry can comply and run some spreadsheets of the costs. But this seemingly simple calculation turns out to be riddled with uncertainties, particularly when you're talking about regulating the energy industry. Those uncertainties need more attention in designing regulations.

The U.S. Environmental Protection Agency (EPA) confronted some of these issues recently in its reevaluation of a regulation limiting mercury emissions from coal power plants. (You might wonder why EPA was taking this look backwards; the reason was basically that the U.S. Supreme Court told them to do so.) In 2011, EPA had estimated that the compliance cost would work out to …

March 21, 2022 by Alexandra Klass, Hannah Wiseman
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This op-ed was originally published by Bloomberg Law. Reproduced with permission. Published March 17, 2022. Copyright 2022 The Bureau of National Affairs, Inc. 800-372-1033. For further use, please visit http://www.bna.com/copyright-permission-request/

In the wake of recent high-profile electric power failures, numerous policymakers and politicians have asserted an inherent tension between the aims of clean energy and grid reliability. One Texas regulator declared that the best response to the hundreds of deaths caused by last year’s blackouts was for the state never to build another wind turbine again—even though the failure to weatherize natural gas infrastructure has been diagnosed as the blackouts’ primary cause.

At the same time, large utilities such as Duke Energy have proposed major new investments in natural gas generation, citing the need for reliability.

These calls for new fossil fuel investments in the name of reliability are a dangerous …

March 16, 2022 by Catalina Gonzalez
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This is the first post in a series on climate justice in California.

State officials in California are leading an extensive multisector planning effort to develop the 2022 Scoping Plan, the third update to California’s climate mitigation strategy. The new plan will outline a pathway for statewide action toward reducing greenhouse gas emissions by 40% by 2030 and reaching net-zero emissions (i.e., carbon neutrality) no later than 2045.

California first established its distinctive planning approach for developing coordinated emissions reduction measures that also advance the state’s other climate and environmental justice goals under the Global Warming Solutions Act in 2006 (AB32).

AB32 also established the first statewide emissions target limiting greenhouse gas emissions to 1990 levels by 2020 and charged the California Air Resources Board (CARB) with developing and adopting a new scoping plan every five years. The first scoping plan was developed in …

March 15, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

On March 11, there were two seismic shocks in the world of gas pipeline regulation. The Federal Energy Regulatory Commission (FERC) has spent years resisting pressure to change the way it licenses new gas pipelines. The whole point of a natural gas pipeline is to deliver the gas to users who will burn it, thereby releasing carbon dioxide into the atmosphere. FERC has steadfastly refused to take those emissions into account. The D.C. Circuit held that position illegal in an opinion released last Friday. That same day, by coincidence, FERC published guidelines in the Federal Register explaining how it proposed to consider those emissions.

The D.C. Circuit opinion followed up on previous rulings but left no room for doubt about the court's position. The case involved a minor pipeline upgrade by the Tennessee Natural …

March 14, 2022 by Sidney Shapiro
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This op-ed was originally published in The Regulatory Review. Reprinted with permission.

When it comes to historically marginalized groups, an “out of sight and out of mind” approach has too often infected agency policymaking. Agencies have responded with outreach to marginalized communities, but regulatory policymaking is hardly inclusive.

Last January, President Biden required the government to increase engagement “with community-based organizations and civil rights organizations,” and the Administrative Conference of the United States responded with a multiday forum on underserved communities and the regulatory process.

Addressing the lack of participation by marginalized communities in regulatory decision-making is crucial, but there is another fundamental issue. The input of marginalized communities will not matter if agencies ignore or devalue it because these insights are not expressed using the standard narratives of policymaking.

Bruce Williams and Albert R. Matheny identify three “languages” used in public policy debates: managerial, pluralist, and …

March 9, 2022 by Allison Stevens
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When the first person of color on the nation’s highest court retired three decades ago, the nation’s first female justice paid tribute to the invaluable experience he brought to what had been an exclusively white male institution. 

“Although all of us come to the court with our own personal histories and experiences, Justice [Thurgood] Marshall brought a special perspective,” Justice Sandra Day O’Connor wrote in 1992 in the Stanford Law Review

“At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.”

Angela Onwuachi-Willig, the dean of Boston University’s law school, lifts up O’Connor’s insight in a recent letter in support of another legal pioneer: Judge …

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