The Regulatory Year in Review: Top News of 2016

Every Friday, The Regulatory Review publishes a roundup of the week’s top regulatory news. As 2016 comes to a close, we’ve compiled this list of some of the most important regulatory developments of the past year.

JANUARY

• President Obama announced a series of executive actions aimed at stemming the tide of gun violence, including: the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATS) final rule mandating that all gun-business owners conduct thorough background checks of prospective gun buyers; the U.S. Social Security Administration’s (SSA) planned rule that would require including information in the background check system about individuals barred from gun ownership due to mental health issues; and the President’s recently-issued directions to the U.S. Departments of Defense (DOD), Justice (DOJ), and Homeland Security (DHS) to conduct research on gun safety technology.

• Federal Communications Commission (FCC) Chairman Tom Wheeler released a proposed rule for the FCC commissioners to review before their vote in February that would mandate that cable information is shared with more companies, in order to expand the technology consumers can use to receive cable from only a set-top box, which cable companies currently require consumers to lease in order to receive cable television, to also include smart TVs and tablets. A vote on the proposal scheduled for September was delayed, and has not been rescheduled.

• The U.S. Supreme Court held that under Federal Power Act, which grants the Federal Energy Regulatory Commission (FERC) the power to regulate “the sale of electric energy at wholesale in interstate commerce,” FERC is authorized to require wholesale market operators in certain circumstances to compensate “demand response” providers—wholesale market operators who pay consumers to curtail their use of electricity at certain times, such as on particularly hot days—the same amount as generators for producing electricity.

FEBRUARY

• In a 5-4 decision along ideological lines, the U.S. Supreme Court granted a coalition of states’ petition for a stay of the Clean Power Plan—the U.S. Environmental Protection Agency’s (EPA) rule that imposes emission-reduction requirements for power plants, but which the states argue exceeds the agency’s authority under the Clean Air Act—a decision that many have called “unprecedented” and a signal of the Court’s misgivings concerning the merits of the rule, but which the White House denounced, reaffirming its belief that ultimately it “will prevail on the merits.”

• Leaving behind an indelible legacy in light of what many have described as his larger-than-life personality, his intellectually rigorous and evocative judicial opinions, and his staunch adherence to originalism, U.S. Supreme Court Justice Antonin Scalia passed away, his untimely death setting off a potentially divisive battle between President Obama and a group of U.S. Senate Republicans over who—if anyone—will be confirmed to fill his seat during President Obama’s remaining months in office.

MARCH 

• President Barack Obama nominated Chief Judge of the U.S. Court of Appeals for the D.C. Circuit Merrick B. Garland to the U.S. Supreme Court, a decision that stoked resistance from some congressional Republicans, who have maintained that they will not vote on a nominee until after a new president has been elected this fall, but which prompted widespread support from other Republican and Democratic legislators alike, citing Judge Garland’s reputation for “consensus-building” and “judicial restraint” based on his 19-year record of judicial opinions in which he has often diverged from his conservative colleagues—by demonstrating, for instance, what some consider to be relatively strong deference to federal agencies’ decisions—at the same time that he has broken with liberals by consistently rejecting criminal defendants’ appeals of their convictions.

APRIL

• The U.S. Food and Drug Administration (FDA) issued eased guidelines for mifepristone, a pill that ends early pregnancy, by decreasing the number of doctor’s appointments required for women taking the pill from three to two, and allowing women to take the pill further into their pregnancies—a change that abortion rights advocates are calling a victory, and which they assert simply reflects what is already standard medical practice in most states, but which anti-abortion groups have railed against as a politicized move that fails to address what they point to as the drug’s adverse effects, including possible illness and even death.

• The U.S. Department of Labor (DOL) issued a final rule that modifies the Employee Retirement Income Security Act (ERISA) by imposing a fiduciary duty on brokers who provide retirement advice—a development that Secretary of Labor Thomas Perez called “a huge win for the middle class,” while the financial industry argued that the complex rule could prevent lower- and middle-class individuals from receiving investment advice, and that it would result in potentially billions of dollars in increased compliance costs.

MAY

• The Consumer Financial Protection Bureau (CFPB) proposed a new rule that would prohibit financial firms from using mandatory arbitration clauses in consumer contracts—clauses that were the subject of a highly critical New York Times investigation and that the CFPB says deny consumers’ rights to bring class action, even though advocates of arbitration say the clauses are a more expedient way to resolve legal disputes, and the clauses survived Supreme Court challenges in 2011 and 2013.

JUNE

• A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld the Federal Communications Commission’s (FCC) Open Internet Order, which reclassified broadband internet as a utility and created rules to prevent throttling of connection speeds and paid prioritization of traffic. The decision was hailed as “a victory for consumers and innovators” by FCC Chairman Tom Wheeler and, according to University of Pennsylvania law professor Christopher Yoo, who filed an amicus brief opposing the Order, is unlikely to go to the U.S. Supreme Court.

• President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) plan, an executive action announced in 2014 that would have allowed as many as five million undocumented immigrants who are the parents of U.S. citizens or lawful permanent residents to request  work permits and temporary relief from deportation, remains blocked after the U.S. Supreme Court, in a 4-4 decision, left in place a ruling by the U.S. Court of Appeals for the Fifth Circuit that blocked the plan. While the decision was hailed as a victory for “those who believe in the separation of powers” by Texas Attorney General Ken Paxton, President Obama spoke critically of the decision, calling it “frustrating for those who seek to grow our economy and bring a rationality into our immigration system.”

• President Obama signed the Frank R. Lautenberg Chemical Safety for the 21^st Century Act, which updates the Toxic Substances Control Act (TSCA), into law after the bill passed with bipartisan support in both the U.S. House of Representatives and the U.S. Senate—a development that is supported by the U.S. Environmental Protection Agency, but that has divided the environmental community.

• In a closely watched 5-3 decision, the U.S. Supreme Court struck down a Texas law that required abortion providers to have admitting privileges at nearby hospitals and required abortion clinics to meet standards for ambulatory surgical centers, finding both provisions unconstitutional because they placed an “undue burden” on the ability of women to obtain an abortion. Though Texas Governor Greg Abbot said the decision interferes with the ability of Texas and other states to protect women’s health, the decision was applauded by the American College of Obstetricians and Gynecologists, which said that the Texas law had “served only as a barrier to women’s ability to access safe, legal abortion when needed.”

JULY

• In one of the largest consumer class action payouts in American history, Volkswagen agreed to pay up to $14.7 billion in two related settlements—one with the United States and California, and one with the Federal Trade Commission (FTC)—arising out of allegations made by the U.S. Environmental Protection Agency (EPA) that Volkswagen cheated on diesel emissions tests and allegations by the FTC that the company violated the Federal Trade Commission Act  (FTC Act) by deceptively advertising “clean diesel” vehicles.

AUGUST 

• In a blow to the Obama administration’s guidance instructing all public schools to allow transgender students to use the bathroom corresponding to their gender identity, Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas issued a nationwide injunction in response to a lawsuit brought by eleven states, blocking the guidance because the federal government failed to fulfill the notice and comment requirements of the Administrative Procedure Act and because the guidance is not a legal directive under Title IX—a decision hailed by Texas Attorney General Ken Paxton, who called the guidance an “illegal federal overreach,” but criticized by a coalition of five civil rights organizations, including the American Civil Liberties Union (ACLU), as a misguided and premature ruling.

• In a 3-1 decision, the National Labor Relations Board (NLRB) held that “student assistants who have a common-law employment relationship with their university are statutory employees” under the National Labor Relations Act (NLRA) and are therefore able to unionize. The case involved an attempt by the United Auto Workers’ (UAW) to organize graduate students at Columbia University, and overruled a 2004 NRLB decision concerning students at Brown University that the majority criticized as having “deprived an entire category of workers of the protections of the Act, without a convincing justification in either the statutory language or the policies of the Act.”

SEPTEMBER

• The Federal Aviation Administration (FAA) launched the exemption program tied to its recent rule on commercial drones. The rule allows for the routine commercial operation of drones provided that certain criteria, such as operation during the daytime and within the line of sight, are met. The exemption process was created after the drone industry expressed concern that the commercial drone rule’s criteria were too stringent and could result in the blockage of innovative new practices. The FAA has already granted more than 70 exemptions under the program, most of which allow for nighttime operation.

• On the heels of the launch of Uber’s self-driving car program in Pittsburgh, the Department of Transportation (DOT) published a set of guidelines for autonomous vehicles. The guidelines come in response to increased focus on the development and implementation of autonomous vehicles, as well as concerns about the mess that could result from states regulating autonomous vehicles in the absence of federal guidelines. In addition to clarifying the respective roles of states and the federal government, the guidelines create a 15-point safety assessment that provides flexibility to manufacturers of autonomous vehicles, which Secretary of Transportation Anthony Foxx reportedly said was in recognition of the “different types of innovation” there will likely be in autonomous vehicles

• The U.S. Department of Labor finalized a rule that guarantees paid sick leave to 1.15 million employees of federal contractors. The rule—which implements a 2015 executive order—provides up to 56 hours of paid sick leave annually to employees of federal contractors. The Labor Department estimated that more than 500,000 of these employees previously received no paid sick leave, and stated that the new rule provides flexibility to federal contractors in how they implement the requirements. Secretary of Labor Thomas Perez reportedly said that paid sick leave “allows working families to focus on what really matters most without having to worry about the next paycheck.”

OCTOBER

• After the European Union ratified the Paris Climate Agreement, support for the Agreement reached the threshold required for the Agreement to enter into legal force on November 4th, after which participating countries began to hammer out details of implementing the Agreement at COP 22, the annual meeting of the parties to the United Nations Framework Convention on Climate Change (UNFCC). President Barack Obama and President Xi Jinping of China formally committed both of their nations to the  Agreement in September.

• The U.S. Court of Appeals for the D.C. Circuit ruled that the Consumer Financial Protection Bureau’s (CFPB) structure is unconstitutional. The D.C. Circuit held that the CFPB director’s broad scope of power and lack of oversight was unconstitutional and a “gross departure” from the multi-member commissions that oversee many other independent agencies. The D.C. Circuit fixed the problem by giving the President the authority to remove the director at will, which Senator Elizabeth Warren (D-Mass.) reportedly called “a small, technical tweak,” but some groups, including the National Association of Federal Credit Unions, allegedly called for the halting of all CFPB rulemaking.

NOVEMBER 

• Wells Fargo’s quarterly filing to regulators revealed that the U.S. Securities and Exchange Commission (SEC) is investigating the bank—an investigation that comes in addition to ongoing investigations into the bank by the U.S. Department of Justice (DOJ) and the state of California, and which is reportedly likely to focus on whether Wells Fargo should have disclosed to its investors the fact that it was being investigated for opening unauthorized consumer accounts before a $185 settlement between the bank and the Consumer Protection Financial Bureau (CFPB) was announced in September.

• Donald Trump was elected to be the 45th President of the United States, and Republicans retained control of the U.S. House of Representatives and Senate. Republican control of both the Executive and Legislative branches of government is likely to have a significant impact on regulation in a number of areas. Among the potential changes are rollbacks of banking regulations, such as repealing or modifying the Dodd-Frank Wall Street Reform and Consumer Protection Act, and the reversal of energy and environmental policies, including altering the involvement of the United States in the Paris Climate Agreement and limiting the role of the U.S. Environmental Protection Agency.

• The U.S. Department of Labor’s overtime rule—which would have extended overtime pay to over 4 million new workers by increasing the salary limit below which employers are required to provide overtime pay from $23,660 to $47,476, and which was scheduled to go into effect on December 1st—was blocked by Judge Amos L. Mazzant III of the U.S. District Court for the Eastern District of Texas, who granted a nationwide preliminary injunction in response to arguments from 21 states and a number of businesses that the Labor Department had exceeded its statutory authority in promulgating a rule which raised the overtime salary limit so significantly.

DECEMBER

• President-elect Donald Trump’s transition team announced that Carl Icahn—an investor who has held substantial positions in a number of companies, including Texaco, Time Warner, and Apple—will serve as a special adviser to the President-elect on regulatory reform. The transition team cited Icahn’s “intimate knowledge of what businesses need to grow and thrive” as qualifying him to serve as “a trusted voice in developing President-elect Trump’s America First economic agenda.” President-elect Trump reportedly said Icahn’s “help on the strangling regulations that our country is faced with will be invaluable.”