Economic, Workplace and Environmental Regulation

  • January 30, 2017
    Guest Post

    *This piece originally appeared in the Detroit Legal News.  

    by Gary Maveal, Professor of Law, University of Detroit Mercy School of Law

    The president’s nominee to head the nation’s Environmental Protection Agency is a staunch opponent of its work. Should this disqualify Scott Pruitt from consideration as the next EPA Administrator? I submit that it clearly does.

    The Role to Fill

    Founded under President Nixon in 1970, the EPA was borne of a national movement insisting that a federal agency was needed to defend the nation’s lands, air and water from degradation. Citizens recognized that pollution ignored the bounds of state lines – and that individual states lacked the resources or political will to confront polluting industries.  

    The design of most federal statutes authorizes the EPA to set national standards for polluting activities which are then implemented by the states. In this way, the EPA avoids the “race to the bottom” by states competing by offering varying (i.e., higher) allowable levels of emissions or discharges.

    The role of EPA administrator is a challenging one, overseeing a dizzying array of complex federal statutes protecting the air, water and endangered species.  EPA rules regulate toxins from arsenic to zinc. In addition, the agency oversees a variety of public education and grant programs to inform and study environmental issues across the nation. The administrator must be proficient in assessing scientific data from public and private sources.  

  • October 26, 2016
    Guest Post

    *Read more on this topic in the ACS Issue Brief: Redefining Employment for the Modern Economy

    by Brishen Rogers, Associate Professor of Law at Temple University Beasley School of Law

    The explosive growth of Uber and other on-demand labor platforms has brought public attention to a longstanding issue facing workers in this country: the fissuring of employment. Fissuring comes in many forms, including misclassification of employees as independent contractors, subcontracting and franchising arrangements.

    Such strategies can deprive workers of their rights under our employment laws, most of which define employment per the common law “right to control test.” That definition is narrow, failing to reflect the economic realities of modern work relationships. It is also notoriously difficult to apply in practice, which increases litigation costs and disempowers low-wage workers.

    This is not a small problem. Wage and Hour Administrator David Weil estimates that there are “over 29 million workers in just five industries affected …  including in the construction, hospitality, janitorial, personal care and home health care industries.”

    Unfortunately, some prominent reform proposals—such as to create a new legal category of worker that would slot between “employee” and “independent contractor,” with limited employment rights—would move us backwards rather than forwards. Ethically speaking, workers in fissured relationships are no less deserving of basic protections than standard employees. Creating a third category of worker would also make employment status litigation even more complicated and more expensive.

    In a new issue brief for ACS, I propose an omnibus employment status bill to address such challenges. The central reform would redefine employment under the core federal labor/employment statutes per the broad “suffer or permit” test from the federal Fair Labor Standards Act. In misclassification cases under that test, courts’ and agencies’ task is not to determine whether the putative employer enjoys a right to control the performance of the work, but rather “to determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor).”

  • October 13, 2016
    Guest Post

    by Jack Beermann, Professor of Law and Harry Elwood Warren Scholar, Boston University School of Law

    In PHH Corporation v. Consumer Financial Protection Bureau, the U.S. Court of Appeals for the D.C. Circuit, in an opinion by Judge Brett Kavanaugh, held that it was unconstitutional for the CFPB to be headed by a single Director who could not be removed by the president without cause. The consequences of the court’s decision were muted by its decision not to declare the agency completely unconstitutional. Rather, as the Supreme Court did with the Public Company Accounting Oversight Board (PCAOB), the court simply excised the Director’s “for-cause” protection and its implication that the Director was beyond the president’s control and otherwise left the agency and all of its decisions, intact. Thus, the CFPB can go on as before, with the only change being that the president can remove the Director at will and can order the Director to act in accord with presidential policies and priorities.

    Judge Kavanaugh’s reasoning in support of this outcome is surprising. The basis for the decision was not that the president, as head of the Executive Branch, needs the power to control the CPFB. Recall that the need for presidential control was the Supreme Court’s basis for invalidating the PCAOB’s for-cause protections. In the case of the CFPB, Judge Kavanaugh’s expressed reason for invalidating the Director’s protection was that “[t]he CFPB’s concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency.” In Judge Kavanaugh’s view, the multi-member structure of most independent agencies provides a check on abuse of power that was, unconstitutionally, absent in the case of the CFPB. (Judge Kavanaugh also relies heavily on the history and tradition of plural heads of independent agencies. In this blog, I focus only on the pragmatic reasoning, not the reasoning based on tradition.)

  • October 11, 2016
    Guest Post

    *This post was originally published on

    by Adam Levitin, Professor of Law, Georgetown University Law Center

    The headlines look pretty bad: the DC Circuit Court of Appeals held the CFPB’s structure to be unconstitutional in a case called PHH v. CFPB, which deals with kickbacks in captive private mortgage reinsurance arrangements allegedly in violation of the Real Estate Settlement Procedures Act. In fact, however, the ruling is a blessing in disguise for the CFPB. While the 110 page decision is filled with inflammatory rhetoric, it gives the CFPB’s detractors very little succor in the end. The CFPB lost on the decision’s rhetoric, but won on the practical implications. Although the CFPB’s current structure was declared unconstitutional, the court also immediately remedied the flaw by declaring that the CFPB Director is now removable by the President at will, rather than only "for cause" as provided for by the Dodd-Frank Act. There are four critical implications from this ruling:   

    ·    First, the CFPB’s existing rule makings and enforcement actions remain valid and unaffected. That is a huge win for the CFPB. It is business as usual at the CFPB for all intents and purposes.

    ·    Second, the CFPB’s Director is now under direct Presidential political control, but that does not have partisan implications: a GOP-appointed director could be removed as easily by a Democratic president as a Democratic-appointed director could be removed by a Republican president. Now the CFPB Director, instead of running on a five-year term will be on a five-year term that might get curtailed with every change in Presidential administration. That is not a particularly big deal.

  • September 28, 2016
    Guest Post

    In February, the Supreme Court of the United States stayed implementation of the Clean Power Plan, which provides the EPA with its best chance to cut future greenhouse gas emissions. On Tuesday, Sept. 27, the United State Court of Appeals for the District of Columbia Circuit will hear oral arguments in a consolidated case, known as West Virginia, et. al. v. EPA. This case will determine whether it is within the EPA’s power to regulate air quality by setting strict standards for carbon emission. ACS invited experts to explore the issues that will be presented before the Court.

    by David Arkush, Director, Congress Watch, Public Citizen

    We are often told that environmental concerns are akin to luxury goods that we cannot afford. Protecting the environment has a cost, the story goes and we will pay it in higher prices. Opponents of the EPA Clean Power Plan have made this type of claim, in some of its more extreme incarnations, central to their legal challenge in West Virginia v. EPA.

    According to a group of local chambers of commerce and manufacturing associations, the Clean Power Plan will cause “economic disaster”—largely due to higher electricity prices—in which “thousands of businesses” will “lay off workers or close their doors entirely.” Local Bus. Br. 23–24. In the words of the 60Plus Association, a Koch-Brothers-affiliated group that purports to represent seniors, the rule will cause people on fixed and low incomes to “suffer greatly” from “grinding, day-to-day deprivations.” Id. at 12–13. I will turn back to these arguments in a moment. But first, it is worth raising something important that the challengers and their amici completely ignore: the harms of climate change.

    Climate change is already damaging American consumers and businesses and it threatens massive future harm. By spurring more extreme weather events, climate change will cause trillions of dollars’ worth of damage to property and infrastructure. A 2014 analysis projects $525 billion in damage to coastal property alone, in just the next 15 years. The damage from extreme weather will, in turn, force businesses to raise prices and governments to raise taxes. Drought, floods and other weather events will raise the price of basic needs like food and water while lowering their quality. In addition to being poorer, we will be less healthy, burdened by more heat-related and food-, water- and insect-borne illnesses.