Author

Caitlin Styrsky

Caitlin Styrsky is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

Montana governor announces ban on ESG considerations in state investments

ESG Developments This Week

In the states

Montana governor announces ban on ESG considerations in state investments

The office of Montana Gov. Greg Gianforte (R) released the following statement on January 18 announcing that Montana has joined several other states in prohibiting non-financial considerations, including considerations related to ESG, in the state’s investments:

Governor Greg Gianforte and the Montana Board of Investments today announced the State of Montana has reaffirmed its commitment to maximizing returns on the over $26 billion in investments of the state’s financial assets, not advancing a political agenda through Environmental, Social, and Governance (ESG) investing.

“As the State of Montana invests its financial assets, our priority is and should always be maximizing returns for our shareholders – the people of Montana,” Governor Gianforte said. “On my watch, we won’t undermine taxpayers’ returns on investment in favor of the trend of activist, woke capitalism through ESG investing.”

Late last year, the Board of Investments revoked the ability of the state’s investment managers to vote the state’s proxies which align with ESG investment decisions.

“The Board’s fiduciary duty is to maximize returns independent of political agendas, social pressures or any other non-pecuniary factors,” said Dan Villa, Executive Director of the Board of Investments. “We have and will continue to grow Montana’s wealth without bias and based solely on what is in the best interest of the beneficiaries of the assets we invest.”


State attorneys general continue to oppose ESG

Twenty-one Republican state attorneys general—led by Utah Attorney General Sean Reyes (R)—on January 17 released a letter to proxy advisory firms warning that ESG investment considerations could violate state laws and contracts. Asset managers pay proxy advisory firms to make recommendations about how to vote on questions that appear in corporate proxy statements. Two companies—Institutional Shareholder Services (ISS) and Glass-Lewis—dominate the proxy advisory business. ESG critics regard both companies as left-leaning:

Twenty-one state attorneys general released a letter to proxy advisory firms today taking issue with their use of ESG criteria in advice to state investment vehicles. The letter was written by Utah attorney general Sean Reyes. It provides evidence of possible violations of fiduciary duty and says, “We seek written assurance that you will cease such violations and commit to following the law.”

Proxy advisory firms exist to tell investors how to vote their shares. They are especially important to large institutional investors, such as state pension funds, that own too many stocks to be able to keep track of every question presented to shareholders. Those large institutional investors also control enough shares to swing votes for publicly traded companies….

The attorneys general allege in the letter that by advocating criteria related to climate change and diversity, equity, and inclusion when advising state investment vehicles, ISS and Glass Lewis could be in violation of their contracts with state governments and the law.

On climate issues, the attorneys general say, “Rather than being based on a rational analysis of the effects that expected changes to government policy would have on any given company, your actions appear more like those of an activist forcing companies to comply with rules that governments will not otherwise institute.” This expresses a common criticism of ESG, namely that it is a way to circumvent the democratic process, which has not resulted in the implementation of the sweeping climate policies that environmentalists want.

They also allege a possible conflict of interest, considering that ISS and Glass Lewis — in addition to the advice they offer state investment vehicles — also offer services related to ESG investing. “The value of these services would be undermined if you were to admit in your advisory services that ESG factors are not material to a firm’s financial performance,” the attorneys general wrote. Insofar as climate issues are a material risk to investors, and there are some cases in which they are, companies are already required to disclose them, and proxy advisory firms would already take them into account in the absence of ESG criteria.

On diversity, equity, and inclusion, the attorneys general allege that ISS and Glass Lewis may be in violation of state anti-discrimination laws. “You have pledged to recommend votes against certain directors on boards that you view as having insufficient racial, ethnic, or sex-based diversity under arbitrary quotas that you have announced,” they wrote. They argued that the firms have not adequately considered the legality of their actions and have not demonstrated why such criteria would be relevant to economic performance, which, under the contracts they have with state governments, is supposed to be their goal.


BlackRock agrees to keep ESG out of Florida investments

In Florida, where Gov. Ron DeSantis (R) has opposed ESG investments in pension plans, BlackRock—the largest asset manager in the world and one of the companies states have pushed back against over ESG investing concerns—agreed to keep ESG practices out of its management of Florida state funds:

BlackRock has come to an agreement with the state of Florida after Governor Ron DeSantis (R) declared that asset managers overseeing some of the state’s $220 billion+ in pension funds cannot employ environmental, social and governance (ESG) investment strategies, according to Bloomberg.

DeSantis and other trustees of the state authority running Florida’s pensions formally changed the plans’ policies on Tuesday to say that decisions surrounding investments “must be based only on pecuniary factors” which do not take into account “social, political, or ideological interests.”

“To the extent that BlackRock has complied with the governor’s directives to abandon ESG metrics, we appreciate this and celebrate this win for Floridians,” said DeSantis press secretary Bryan Griffin.

The effort by DeSantis began in August, when he banned state pensions from investing in ESG strategies. In response, Florida’s State Board of Administration began updating contracts with investment managers.

“The SBA continuously evaluates all managers, and they are all held to the same exacting standards in delivering returns and performance,” reads a statement.

Besides BlackRock, the world’s biggest asset manager, dozens of other firms manage Florida’s pensions, including Morgan Stanley, Schroders Plc and Artisan Partners, according to filings.

BlackRock, which managed about $13 billion in Florida pension funds as of December, said it’s “committed to the SBA’s mandate of prioritizing financial performance consistent with their investment objectives,” according to a statement.  -Bloomberg

The agreement between BlackRock and Florida also follows an announced move last year by state CFO Jimmy Patronis, who said he was pulling $2 billion in state funds out of the money manager – which he accused of using Florida’s pensions to fund a “social-engineering project.” He advised the SBA to remove the firm as one of its asset managers as well.

BlackRock has roughly $8 trillion in assets under management, $475 billion (6%) of which are dedicated to ESG strategies. Given that percentage, some critics have questioned whether any concession was made by BlackRock to the state of Florida or if the announcement was primarily a public relations maneuver.


On Wall Street and in the private sector

BlackRock CEO speaks at World Economic Forum meeting

Appearing at the World Economic Forum’s annual meeting at Davos last week, BlackRock CEO Larry Fink argued that the pushback against ESG (not ESG investing itself) created what he views as an inaccurate narrative surrounding the term and produced what he considers to be animosity and polarization:

“We are trying to address the misconceptions [of ESG investing]. It’s hard because it’s not business any more, they’re doing it in a personal way. And for the first time in my professional career, attacks are now personal. They’re trying to demonize the issues.”

That’s fund giant BlackRock Inc.’s BLK, 0.87%  Chief Executive Larry Fink’s answer when asked this week at the glitzy Switzerland gathering of executives, economists and politicians about the ‘anti-woke’ pushback against Wall Streeters who see investment opportunity in fighting climate change.

Fink said the contrarian narrative around environmental, social and governance (ESG) investing has become ugly and is creating “huge polarization.” ESG can span issues like gender diversity on boards or executive compensation, but tends to be readily swapped for climate-focused and alternative-energy investing themes, especially as more companies are pressured to report fossil-fuel emissions or consider increasingly popular fuels like solar ICLN, 1.82% or hydrogen instead of oil CL00, -0.05% and gas.

Attention on the topic has also gained detractors who suggest any ESG focus dilutes a “neutral” fiduciary obligation that favors returns over other considerations by fund managers and other stakeholders.

“Let’s be clear, the narrative is ugly, the narrative is creating this huge polarization. If you really read the CEO letters that I’ve written in the past I talk about a transition to new forms of energy or addressing fresh demand from younger investors who care about social issues,” Fink said in an interview with Bloomberg TV at the World Economic Forum in Davos.

Fink famously dedicated a “materially different” 2020 annual letter to shareholders and executives on sustainable investments, which he called the ‘investment opportunity’ of his lifetime and one that will deliver better returns over time.

But this narrative path has not been without its pitfalls….

Fink, meanwhile, has also been called out by environmental groups for not dumping traditional energy fast enough.

“We are doing everything we can to change the narrative,” Fink told Bloomberg in the Davos interview, adding that he plans to write a letter to business leaders this quarter that will focus on the “concept of hope.”

“BlackRock is a firm that tries to sell hope because why would anybody put something into a 30-year obligation unless you believe something is better in 30 years?’”


Bank of America CEO argues in favor of  ESG

Larry Fink was not the only ESG-advocating CEO to appear at Davos last week. Bank of America’s Brian Moynihan was also there and had much to say about his views on ESG and capitalism:

Bank of America Chief Executive Brian Moynihan said Wednesday that current efforts to produce a set of official global standards on ESG issues were vital to “align capitalism with what society wants from it.”

Asked by CNBC’s Karen Tso at the World Economic Forum in Davos whether stakeholder capitalism needed a reboot through the creation of common standards for corporate disclosures, Moynihan said he was converted to the idea after seeing hundreds of companies sign up to the U.N.’s Sustainable Development Goals in 2017, followed by ongoing debate over what concepts like sustainability actually mean, and accusations of greenwashing.

“Without that definition, without that convergence, what you had is everybody defined it their own way. Somebody would think this issue’s important or this way to talk about it is important,” he said….

In 2020, Moynihan — who is also chair of WEF’s International Business Council — and WEF founder and chair Klaus Schwab worked with the big four accountants to create a set of common stakeholder metrics for companies to follow.

He said it was now important to “go to the official side” and was supporting the new International Sustainability Standards Board set up by non-profit the IFRS….

Moynihan also said it was crucial that sustainability and ethical standards became official and global.

He said informal standards-setting meant companies could hide poor sustainability practices “further down the stream” of their supply chains or divest certain assets, or else claim they are too small to carry out checks.

But with standardized, cross-jurisdiction rules that are part of companies’ annual reports and audited, he continued, “then frankly, an investment manager, a consumer, society, others can sit there and say, here’s a line that is acceptable and you’re either above it or below it.”

“If you’re below it we shouldn’t do business with you, and if you’re above it, tell us how you’re making progress along these important things.”

“Which, at the end of the day, will align capitalism with what society wants from it and get us going faster.’”



SCOTUS applies major questions doctrine to limit agency authority

The U.S. Supreme Court on June 30, 2022, invoked the major questions doctrine in a decision that limits the Environmental Protection Agency’s (EPA) authority to regulate greenhouse gas emissions. The ruling in West Virginia v. Environmental Protection Agency (EPA) could limit the efforts of other federal agencies to engage in broad policymaking not specifically authorized by Congress.

The case concerned whether Congress had delegated regulatory power to the EPA concerning greenhouse gas emissions. The court found that nowhere in the Clean Air Act had Congress granted the EPA specific authority to regulate greenhouse gas emissions and, therefore, the agency had overstepped its authority when it attempted to enact such a regulatory scheme under the Obama-era Clean Power Plan.

The court’s decision centered on the major questions doctrine—a principle of judicial review that requires Congress to speak clearly when it delegates regulatory authority to agencies on questions of political or economic significance. As Chief Justice John Roberts stated in the majority opinion, the major questions doctrine “took hold because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted. Scholars and jurists have recognized the common threads between those decisions. So have we.”

Justice Elena Kagan issued a dissenting opinion, arguing that the majority ruling prevents the EPA from taking congressionally authorized action. “The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy,” wrote Kagan. “I cannot think of many things more frightening.”

SCOTUSblog analyst Amy Howe described what she and other scholars consider to be the significance of the ruling, claiming that Robert’s opinion “likely will have ripple effects far beyond the EPA. His reasoning applies to any major policymaking effort by federal agencies.”

Additional reading:



Pennsylvania lawmaker announces legislation aiming to notify parents of sexually explicit school curriculum

Pennsylvania state Senator Ryan Aument (R) on March 31, 2022, announced his intent to file legislation aiming to require schools to identify sexually explicit content in student curriculum and notify parents when such content is featured in classroom instruction.

Aument issued a statement claiming that parents in his district have contacted him over the last several months to express concerns about sexually explicit content in school curriculum and a lack of response to the issue from school administrators. The bill would aim to give parents the opportunity to review curriculum and classroom materials that feature sexually explicit content and to opt their children out of such coursework in favor of alternative, non-sexually explicit instruction.

“Parents should know what their children are being exposed to in school, period,” Aument told Pennsylvania’s WHTM News. “And beyond that, they should have the opportunity to opt their child out of exposure to certain explicit curriculum and be provided with alternative options by the school.”

Democratic state Senator Lindsey Williams told WHTM News that she is “interested to see what the language is and how narrowly tailored it is,” adding that there “are things that one person finds objectionable that are another person’s reflection of their lived experience.”

Additional reading:



Courts block vaccine mandates for healthcare workers, federal contractors

Two federal judges in recent days issued injunctions preventing the enforcement of the Biden administration’s coronavirus (COVID-19) vaccine mandates for healthcare workers and federal contractors in certain states.

U.S. District Judge Matthew Schelp of the United States District Court for the Eastern District of Missouri on Nov. 29 issued a preliminary injunction blocking the Biden administration from enforcing its vaccine requirement for healthcare workers at facilities that receive Medicaid or Medicare funds. The injunction applies to the 10 states that challenged the vaccine mandate in court: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. 

Schelp argued that the Centers for Medicare and Medicaid Services (CMS), an executive branch agency housed within the U.S. Department of Health and Human Services, exceeded its authority when it issued the vaccine mandate. “CMS seeks to overtake an area of traditional state authority by imposing an unprecedented demand to federally dictate the private medical decisions of millions of Americans. Such action challenges traditional notions of federalism,” wrote Schelp in the order.

CMS issued a statement in response to the order claiming that unvaccinated healthcare workers threaten patient safety. “Staff in any health care setting who remain unvaccinated pose both direct and indirect threats to patient safety and population health. That is why it is critical for health care providers to ensure their staff are vaccinated against COVID-19.”

The following day, U.S. District Judge Gregory F. Van Tatenhove of theU.S. District Court for the Eastern District of Kentucky issued a preliminary injunction blocking the Biden administration from enforcing its coronavirus (COVID-19) vaccine mandate for federal contractors in three states that challenged the mandate: Kentucky, Ohio, and Tennessee. 

Van Tatenhove argued that the mandate exceeded the Biden administration’s authority over federal procurement. “If a vaccination mandate has a close enough nexus to economy and efficiency in federal procurement, then the statute could be used to enact virtually any measure at the president’s whim under the guise of economy and efficiency,” wrote Van Tatenhove in the order.

The Biden administration had yet to respond to Van Tatenhove’s order as of Nov. 30.

Additional reading:



Kentucky institutes ID verification for unemployment insurance claimants

The Kentucky Office of Unemployment Insurance on Nov. 4 began requiring unemployment insurance claimants in the state to verify their identity with ID.me, a third-party verification provider, in order to receive benefits. The new verification requirements are aimed at limiting fraudulent unemployment insurance claims in the state.

Fraudulent unemployment insurance claims have, according to Labor Cabinet Secretary Jamie Link, periodically overwhelmed Kentucky’s unemployment insurance program during the coronavirus (COVID-19) pandemic and prevented the timely processing of valid claims. Kentucky paid $637.5 million in fraudulent unemployment claims between April 1, 2020, and March 31, 2021, according to the U.S. Department of Labor.

“This strategic move is expected to help reduce the number of fraudulent unemployment insurance claims that have been a drag on the program,” said Link in a statement. “It will significantly reduce the amount of time our employees spend working on, or even handling, fraudulent claims and allow us to realign our resources to help those claimants who have waited far too long for assistance.”

Kentucky joins more than two dozen states already using ID.me to verify the identities of unemployment insurance claimants.

Additional reading:



Biden administration implements vaccine mandate through emergency rulemaking

The Occupational Safety and Health Administration (OSHA) on Nov. 4 issued an emergency rule effective immediately to implement President Joe Biden’s (D) proposed vaccine mandate on certain private business employees. The rule requires the roughly 80 million individuals who work for companies with 100 or more employees to receive a COVID-19 (coronavirus) vaccine or undergo weekly testing. The rule does not require employers to pay for or provide testing.

Biden on Sept. 9 announced that OSHA would develop a rule to implement the administration’s proposed vaccine mandate. OSHA issued the rule through an emergency temporary standard (ETS)—a type of interim final rule that allows OSHA to set emergency workplace standards without first following the public notice-and-comment requirements of the federal rulemaking process. Though effective immediately, OSHA must follow rulemaking procedures within six months if the agency decides to adopt the ETS as a permanent standard, according to the agency. Affected parties may challenge the validity of an ETS through the U.S. Courts of Appeals.

The Centers for Medicare and Medicaid Services (CMS) also issued a rule requiring that healthcare workers in facilities that participate in Medicare and Medicaid programs obtain a COVID-19 vaccine. The CMS rule does not include a testing option. The Biden administration aligned the vaccination compliance deadlines for private business employees, healthcare workers, and federal contractors to Jan. 4, according to reporting from CNN.

“Together the OSHA and CMS rules, along with the other policies the administration has previously implemented means that over two thirds of all workers in the United States are now covered by vaccination policies,” a senior Biden administration official told CNN. “Higher vaccination rates protect our workers, reduce hospitalizations and deaths. It’s good for workers and importantly, this is good for the economy.” 

Private businesses that violate the OSHA rule could face monetary penalties up to $14,000 per violation. Healthcare facilities that fail to comply with the CMS rule could face monetary penalties, payment denials, or removal from participation in the Medicare or Medicaid programs.

Lawmakers have mounted challenges to the Biden administration’s vaccine mandate on private businesses at both the federal and state levels. U.S. Senator Mike Braun (R-Ind.) and a coalition of Republican senators on Nov. 3 announced their intent to introduce a resolution of disapproval under the Congressional Review Act in an effort to nullify the mandate. At the state level, Arizona Attorney General Mark Brnovich (R) on Sept. 14 filed a lawsuit in the United States District Court for the District of Arizona arguing that the proposed vaccine mandate on private businesses violates the Equal Protection Clause of the U.S. Constitution, might further strain the labor market, and does not properly fall within OSHA’s jurisdiction. Two days later, 24 Republican secretaries of state sent a letter to Biden stating their intent to, in their words, “seek every available legal option” to challenge the ETS.  

Additional reading:



Checks and Balances – September 2021 – Sue and settle returns to the EPA

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 review federal legislation that would return administrative law judges (ALJs) to the competitive civil service; a new statutory interpretation from the U.S. Department of Education allowing states to regulate student loan servicers; recent decisions from the U.S. Supreme Court that allowed for the continuation of the Trump administration’s “Remain in Mexico” policy and that struck down the Centers for Disease Control and Prevention’s eviction moratorium; and the return of sue and settle practices at the Environmental Protection Agency. 

At the state level, we take a look at state and local jurisdictions with eviction moratoriums that remain in place after the Supreme Court’s decision.

We also highlight a new report from the U.S. Government Accountability Office that surveyed the use of facial recognition technology by federal agencies. As always, we wrap up with our Regulatory Tally, which features information about the 187 proposed rules and 290 final rules added to the Federal Register in August and OIRA’s regulatory review activity.


In Washington

Bill aiming to return ALJs to competitive service advances in House

What’s the story? 

The U.S. House Reform and Oversight Committee on July 20 voted 24-16 along party lines to advance legislation that would redesignate administrative law judges (ALJs) as members of the competitive civil service and reestablish the U.S. Office of Personnel Management’s authority over the ALJ hiring process. 

President Donald Trump in 2018 moved ALJs from the competitive civil service to the excepted service via Executive Order 13843. The order aimed to align ALJ appointment practices with the U.S. Supreme Court’s decision in Lucia v. SEC, which held that the ALJs of the U.S. Securities and Exchange Commission (SEC) are are officers of the United States who must be appointed by the president, the courts, or agency heads rather than hired by agency staff. Prior to the order, OPM screened ALJ candidates through a merit-based selection process as part of the competitive service. Agencies could only hire ALJs from OPM’s pool of vetted candidates.

Supporters of the legislation (the Administrative Law Judges Competitive Service Restoration Act) argue that E.O. 13843 threatens ALJ impartiality by allowing partisan agency heads to appoint ALJs based on their own standards.“This exposed impartial judges, who determined the outcome of disputes over labor-management relations, claims for Social Security and public health benefits, to political influence,” said the bill’s author, Representative Gerry Connolly (D-Va.).

Opponents of the legislation argue that E.O. 13843 strengthens ALJ subject matter expertise by allowing agency heads to consider qualifications beyond the scope of OPM’s generalist vetting criteria. “By placing ALJs in the excepted service, it gave federal departments and agencies greater flexibility to assess prospective ALJ candidates,” said the committee’s ranking member, Rep. James Comer (R-Ky.).

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Department of Education issues new statutory interpretation allowing states to regulate student loan servicers

What’s the story? 

The U.S. Department of Education (ED) on August 9 announced its departure from the Trump administration’s statutory interpretation of the federal Higher Education Act (HEA) that prevented states from regulating student loan servicers. Under the department’s new interpretation, states will be able to develop and enforce consumer protection standards applicable to student loan servicers as long as they are not preempted by federal law.

“Effective collaboration among the states and federal government is the best way to ensure that student loan borrowers get the best possible service,” said Education Secretary Miguel Cardona in a press release. “We welcome public input on this interpretation and look forward to enhancing consumer protections for student loan borrowers by clarifying the relationship between federal and state law on this issue.” 

Former ED Secretary Betsy DeVos aimed to limit state regulation of student loan servicers in order to avoid what she referred to as a regulatory maze of state and federal requirements. Student loan servicers have argued that additional state regulations will increase both business costs and confusion among borrowers.

“Forcing [federal student loan servicers] to serve dozens of state governments that contradict federal rules will create borrower confusion and worsen the borrowers’ repayment experience,” U.S. House Education and Labor Committee ranking member Virginia Foxx (R-N.C.) told The Washington Post. “The department’s bureaucratic incompetence, combined with inherent design flaws in the Higher Education Act, are the reasons why borrowers get left behind.”

Since 2014, more than half of all states have proposed or implemented state-level requirements for student loan servicers. In some states, such as Virginia and Massachusetts, these requirements take the form of a borrower’s bill of rights—minimum timeliness standards for loan processing, communications, and other concerns. Similar legislation is pending in a dozen states, according to the Student Borrower Protection Center.

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SCOTUS declines to block Remain in Mexico policy, strikes down CDC’s eviction moratorium 

What’s the story? 

The U.S. Supreme Court last month issued two noteworthy decisions concerning the exercise of agency authority. The court first declined to block a district judge’s ruling that ordered the Biden administration to reinstate the Trump administration’s Migrant Protection Protocols (known as the “Remain in Mexico” policy). The court later found that the Centers for Disease Control and Prevention’s (CDC) eviction moratorium issued in response to the coronavirus (COVID-19) pandemic was unconstitutional.

In an unsigned order, the court on August 24 declined to block a ruling from U.S. District Judge Matthew Kacsmaryk in Biden v. Texas that directed the Biden administration to reinstate the U.S. Department of Homeland Security’s Migrant Protection Protocols. The program, instituted under the Trump administration, requires asylum-seekers to wait in Mexico prior to their immigration hearings. 

The justices found that the “applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” While six justices supported the order, Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer would have issued a stay to block the district court ruling while the case moves through the appeals process.

Two days later, the court issued another unsigned opinion in Alabama Association of Realtors v. U.S. Department of Health and Human Services holding that the CDC’s eviction moratorium unlawfully exceeded the agency’s statutory authority. “It strains credulity to believe that [§361(a) of the Public Health Service Act] grants the CDC the sweeping authority that it asserts,” wrote the majority justices. 

Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer again dissented, arguing in part that “it is far from ‘demonstrably’ clear that the CDC lacks the power to issue its modified moratorium order.”

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WOTUS ruling signals return of sue and settle

What’s the story?

U.S. District Judge Rosemary Marquez on August 30 issued a decision in Pasqua Yaqui Tribe et al. v. U.S. Environmental Protection Agency that vacated and remanded the Trump administration’s Navigable Waters Protection Rule (NWPR), which narrowed the scope of the Environmental Protection Agency’s (EPA) regulatory authority under the Clean Water Act (CWA). The ruling signals a return to sue and settle practices at the EPA, which the Trump administration had outlawed through an agency directive in 2017.

Sue and settle is a term used to describe cases in which a federal agency is sued by an interested party, declines to defend itself in court, and negotiates a settlement with the plaintiff in a non-adversarial process. Through sue and settle, outside groups sue an agency in order to reach a settlement on terms favorable to the regulatory goals of both.

The NWPR adopted a narrow definition of “waters of the United States” (WOTUS) that limited the EPA’s authority to regulate certain waters, including wetlands. The rule adopted Justice Antonin Scalia’s reasoning in Rapanos v. United States (2006) that only wetlands adjacent to navigable waters fall under CWA oversight. A coalition of Native American tribes challenged the rule in the United States District Court for the District of Arizona, arguing that the WOTUS definition under the NWPR disregards established science and is inconsistent with the statutory objectives of the CWA.

The EPA under the Biden administration had “expressed an intent to repeal the NWPR and return to the pre-2015 regulatory regime while working on a new definition of ‘waters of the United States,’” according to Judge Marquez’s opinion. 

Judge Marquez ruled in favor of the plaintiffs, finding that their concerns “are not mere procedural errors or problems that could be remedied through further explanation. Rather, they involve fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of ‘waters of the United States.’” 

It is unclear what standard now controls WOTUS regulation under the CWA. The Trump administration rescinded a 2015 Obama-era WOTUS regulation and the U.S. Supreme Court in Rapanos and Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers (2001) found the pre-2015 regulations to be overly expansive, according to administrative law scholar Jonathan Adler. 

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In the states

Eviction bans continue across the states

What’s the story? 

The U.S. Supreme Court on August 26 struck down the Centers for Disease Control and Prevention’s (CDC) federal eviction moratorium but similar eviction bans issued in response to the coronavirus (COVID-19) pandemic remain in effect in cities and states across the country.

The following selected state and local jurisdictions had eviction bans in place as of September 13:

  • California’s eviction moratorium remains in effect until September 30. 
  • Illinois’ eviction moratorium expires on October 3. 
  • New Jersey’s eviction ban expires in January 2022. 
  • Washington D.C.’s eviction ban expires in January 2022.
  • New Mexico’s eviction moratorium does not have a set expiration date.
  • New York’s eviction moratorium expires in January 2022.
  • Washington’s eviction ban remains in effect under certain circumstances through October 15.

The above list is not comprehensive and additional eviction bans may remain in effect. State and local programs that aim to support renters seeking rental assistance, such as a Nevada policy that prohibits the eviction of tenants who have applied for rental assistance, may also function as de facto eviction bans.

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GAO report sheds light on federal agency use of facial recognition technology

An August 24 report from the U.S. Government Accountability Office (GAO) found that at least 18 federal agencies use facial recognition technology (FRT).

The GAO survey of 24 federal agencies revealed the following findings: 

  • Sixteen agencies stated that they use FRT for digital access or cybersecurity, including 14 agencies that use FRT for employees to unlock their agency-issued smartphones and two agencies that use FRT to control website access. 
  • Six agencies, including the Department of Homeland Security (DHS), Department of Justice (DOJ), and Department of Defense (DOD) reported using FRT for law enforcement purposes.
  • Five agencies reported using FRT for security purposes, such as controlling building access. 
  • Ten agencies planned to expand their use of FRT.

“It’s becoming increasingly important to get a more comprehensive understanding of the use of facial recognition technology across federal agencies,” Candice Wright, a director in GAO’s Science, Technology Assessment and Analytics Team, told Cox Media Group. “There’s certainly been a lot of advancements recently with facial recognition technology. It has been increasingly used for a range of purposes in both the commercial and government sectors.”

The report raised concerns among privacy advocates, including Adam Schwartz, senior attorney at the Electronic Frontier Foundation. “This technology is dangerous. It leads to people being falsely arrested, it invades our privacy, it deters people from going to protests,” Schwartz told Popular Mechanics. “The government should not be using it at all, so it is pretty sad to read that they’re actually expanding their use of it.”

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Regulatory tally

Federal Register

Office of Information and Regulatory Affairs (OIRA)

OIRA’s August regulatory review activity included the following actions:

  • Review of 37 significant regulatory actions. 
  • One rule approved without changes; recommended changes to 33 proposed rules; three rules withdrawn from the review process.
  • As of September 1, 2021, OIRA’s website listed 77 regulatory actions under review.
  • Want to go deeper? 


Federal Register weekly update: 14 new significant rules

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.

From Sept. 13 through Sept. 17, the Federal Register grew by 1,234 pages for a year-to-date total of 52,070 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 576 documents:

  • 458 notices
  • 13 presidential documents
  • 46 proposed rules
  • 59 final rules

Six proposed rules, including a call for public input from the U.S. Fish and Wildlife Service regarding authorization for the incidental taking of eagles, and eight final rules, including a court-ordered delay of a Food and Drug Administration rule concerning tobacco product warnings, were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 58 significant proposed rules, 63 significant final rules, and one significant notice as of Sept. 17.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2020, 2019, 2018, and 2017: Changes to the Federal Register 

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Click here to find yearly information about additions to the Federal Register from 1936 to 2019: Historical additions to the Federal Register, 1936-2019



Federal Register weekly update: Tops 50,000 pages

Photo of the White House in Washington, D.C.

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.

From Sept. 6 through Sept. 10, the Federal Register grew by 934 pages for a year-to-date total of 50,836 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 449 documents:

  1. 354 notices
  2. Seven presidential documents
  3. 29 proposed rules
  4. 59 final rules

Three proposed rules, including a new mine safety program from the Mine Safety and Health Administration (MSHA), and two final rules, including a revision to the Federal Emergency Management Agency’s (FEMA) hazard mitigation assistance and mitigation planning regulations, were deemed significant under E.O. 12866— defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 52 significant proposed rules, 55 significant final rules, and one significant notice as of Sept. 10.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2020, 2019, 2018, and 2017.

Click here to find yearly information about additions to the Federal Register from 1936 to 2019.



Federal Register weekly update: More than 250 presidential documents issued so far in 2021

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The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s overall regulatory activity, accounting for both regulatory and deregulatory actions.

From August 30 through September 3, the Federal Register grew by 1,608 pages for a year-to-date total of 49,902 pages.

The Federal Register hit an all-time high of 95,894 pages in 2016.

This week’s Federal Register featured the following 590 documents:

  1. 467 notices
  2. 11 presidential documents
  3. 39 proposed rules
  4. 73 final rules

Five proposed rules, including new migratory game bird hunting regulations from the U.S. Fish and Wildlife Service, and seven final rules, including the establishment of a dairy product donation program through the U.S. Department of Agriculture, were deemed significant under E.O. 12866—defined by the potential to have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules. The Biden administration has issued 49 significant proposed rules, 53 significant final rules, and one significant notice as of September 3.

Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.

Click here to find more information about weekly additions to the Federal Register in 2020, 2019, 2018, and 2017.

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