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 oral argument before the U.S. Supreme Court in challenges to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rule banning bump stock devices and the Environmental Protection Agency’s (EPA) Good Neighbor Plan; Amazon’s constitutional challenge to the structure of the National Labor Relations Board (NLRB); and two new environmental rules issued by the Biden administration.
At the state level, we take a look at two ballot measures in Wisconsin related to appropriations power; a new Utah law requiring discussion of federal air quality regulations; the Wisconsin REINS Act’s effect on environmental rulemaking; and a lawsuit in Florida challenging guidance from the Centers for Medicare and Medicaid Services (CMS) related to eligibility rules for the Children’s Health Insurance Program (CHIP).
We also highlight recent commentary from lawyers Joseph C. Stanko, Frederick R. Eames, and Brian R. Levey regarding the look-back provision under the Congressional Review Act (CRA). We wrap up with our Regulatory Tally, which features information about the 199 proposed rules and 211 final rules added to the Federal Register in February and OIRA’s regulatory review activity.
In Washington
SCOTUS hears oral argument in challenges to bump stock ban rule, EPA’s Good Neighbor Plan
What’s the story?
The United States Supreme Court on February 28, 2024, heard oral argument in Garland v. Cargill—a case challenging the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rule banning bump stock devices.
Gun owners and organizations challenged the ATF rule, arguing in multiple lawsuits that the agency lacked the authority under federal law to issue the rule. The U.S. Fifth Circuit Court of Appeals ruled in January 2023 that the agency’s action exceeded its statutory authority and declined to apply Chevron deference.
SCOTUSblog analyst Amy Howe wrote that the court was divided at oral argument. Justice Neil Gorsuch argued that he could “certainly understand why these items should be made illegal, but we’re dealing with a statute that was enacted in the 1930s, and through many administrations, the government took the position that these bump stocks are not machineguns.” Justice Elena Kagan, however, argued that, in her view, common sense when reading the statute concludes that it covers, “a weapon that fires a multitude of shots with a single human action.”
SCOTUS also heard oral argument in Ohio v. Environmental Protection Agency (EPA) on February 21, 2024. The case argues that the EPA’s Good Neighbor Plan, which aims to reduce air pollution from certain industrial facilities in 23 states, is arbitrary and capricious and would put undue pressure on the U.S. electrical grid. Howe wrote that the court seemed sympathetic to the plaintiffs’ arguments, though some justices expressed concern about the case coming before the court on an emergency appeal.
Both cases are expected to be decided by the summer of 2024.
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Amazon challenges constitutionality of National Labor Relations Board’s structure
What’s the story?
Amazon issued a legal filing on February 15, 2024, arguing that the National Labor Relations Board’s (NLRB) structure is unconstitutional. The company contended that the structure of the NLRB violates the separation of powers and the right to a trial by jury.
The NLRB filed a complaint accusing Amazon of illegally retaliating against workers at a unionized warehouse in Staten Island, New York. Amazon denied the charges and argued in their filing “that ‘the structure of the N.L.R.B. violates the separation of powers’ by ‘impeding the executive power provided for in Article II of the United States Constitution,” according to the filing.
Amazon’s argument follows a lawsuit filed by the company SpaceX on January 4, 2024, and an argument made by Trader Joe’s during an administrative hearing on January 16, 2024. Both companies argued that the NLRB’s structure and organization is unconstitutional, with SpaceX arguing that the NLRB’s administrative proceedings violate the right to a trial by jury and that the agency’s structure violates the separation of powers.
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Biden administration issues two new environmental rules
What’s the story?
The Biden administration issued new environmental rules in the past month to require climate-related disclosures by certain public companies and to establish air pollution emissions guidelines.
The Securities and Exchange Commission (SEC) announced on March 6, 2024, that it had adopted a final rule aimed at establishing standards for climate-related disclosures by certain public companies. The rule will, in part, require certain companies to disclose greenhouse gas emissions to investors. The rule also includes amendments to the 2022 proposed rule in response to public comments, such as requiring large and mid-sized companies to disclose emissions as opposed to all public companies as initially proposed. The final rule also will not require companies to disclose emissions from products they sell.
Ten state attorneys general filed a lawsuit on March 6 in the United States Court of Appeals for the Eleventh Circuit aiming to block the rule, arguing that it exceeds the SEC’s statutory authority and “sets up a framework where a federal agency is forcing companies to put forward initiatives and disclose information that it might not otherwise want to do,” according to Bloomberg Law.
The Environmental Protection Agency (EPA) also issued a final rule on March 8, 2024, aimed at reducing methane emissions from the oil and gas sector. The rule, in part, establishes new emissions standards for oil and gas and sets performance standards to address methane emissions from existing sources.
Texas Attorney General Ken Paxton (R) filed a lawsuit on March 8 in the U.S. Court of Appeals for the District of Columbia Circuit seeking to block the EPA rule, arguing in a statement that “EPA’s rule violates fundamental principles of federalism by forcing the States to adopt Federal standards as their own in an unlawful attempt to regulate existing sources.” Senior attorney at the Environmental Defense Fund Rosalie Winn disagreed, claiming that the “EPA’s final methane protections for the oil and gas sector are firmly rooted in the extensive factual record before the agency and EPA’s core authority to address harmful pollution under Section 111 of the Clean Act,” according to E&E News.
Want to go deeper?
- Securities and Exchange Commission
- United States Court of Appeals for the Eleventh Circuit
- Environmental Protection Agency
- United States Court of Appeals for the District of Columbia Circuit
- Ken Paxton
In the states
Wisconsin legislature approves two ballot measures to amend appropriations power
What’s the story?
The Wisconsin State Legislature on February 22, 2024, approved two ballot measures to appear on the November 5, 2024, ballot as legislatively referred constitutional amendments concerning state appropriations authority.
The ballot measures, if passed, would amend the state constitution to prohibit the legislature from delegating its power to appropriate money and require legislative approval via a joint resolution before the governor can expend federal money appropriated to the state.
The amendments received unanimous support from Republican lawmakers in the state, with state Senator Howard Marklein arguing that the resolution would increase “accountability, efficiency, and transparency in the expenditure of funds received from the federal government by restoring the legislature’s role in approving those expenditures.”
Jennifer Giegerich, government affairs director of Wisconsin Conservation Voters, opposed the ballot measures, arguing that they “would amend the Wisconsin Constitution to add another level of government process during times when we are most vulnerable and depend on efficiency and a smooth process to receive much needed support.”
Want to go deeper?
- Wisconsin Prohibit Legislature from Delegating Appropriations Power Amendment (2024)
- Wisconsin Require Legislative Approval for State Expenditure of Federal Funds Amendment (2024)
- Wisconsin State Legislature
Utah lawmakers require discussion of federal air quality regulations
What’s the story?
Utah Governor Spencer Cox (R) on March 13, 2024, signed a bill into law requiring the Utah Division of Air Quality to regularly discuss emissions-related regulations with the state’s Federalism Commission. The bill also includes requirements to discuss regulations from the Environmental Protection Agency and other federal rules affecting industries.
The Utah Department of Environmental Quality supported the bill, arguing that it “provides a forum … to exchange information with policy makers and have critical discussions about how we address environmental challenges Utah faces,” according to The Salt Lake Tribune.
Ashley Miller, the executive director of the nonprofit organization Breathe Utah, opposed the bill and the state’s efforts to challenge federal environmental regulations, arguing, “If we start to scale back progress now, everyday Utahns will be the ones to suffer the consequences. … Everything in Utah will cost more and we will lose good-paying industry jobs,” according to The Salt Lake Tribune.
The bill will go into effect on May 1, 2024.
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Wisconsin lawmakers wrangle over state environmental regulation
What’s the story?
The Wisconsin State Assembly on February 22, 2024, approved a bill with a vote of 62-35 aimed at addressing per- and poly-fluoroalkyl substances (PFAS) contamination in the state. Governor Tony Evers (D) has announced plans to veto the bill, SB 312, and encouraged the legislature to consider an alternate plan to address PFAS contamination.
Evers urged Republican legislators in January 2024 to authorize the Wisconsin Department of Natural Resources (DNR) to continue its rulemaking process to establish PFAS contamination standards after the process was halted by the Wisconsin Regulations from Executive in Need of Scrutiny (REINS) Act, which requires state legislative authorization of administrative rules that carry compliance and implementation costs of $10 million or more over two years.
SB 312 would, in part, limit certain DNR actions related to PFAS standards and establish grant programs for landowners to pay for PFAS-related testing and upgrades.
In response to the passage of the bill and Evers’ anticipated veto, Democratic lawmakers in the state introduced an alternate bill on March 1, 2024, aimed at addressing PFAS contamination. The introduced bill would limit legislative oversight of PFAS standards and would exempt PFAS-related regulations from the Wisconsin REINS Act.
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Florida challenges CMS guidance related to CHIP eligibility and enrollment
What’s the story?
The state of Florida and the Florida Agency for Health Care Administration filed a lawsuit on February 1, 2024, in the United States District Court for the Middle District of Florida challenging guidance issued by the Centers for Medicare and Medicaid Services (CMS) related to eligibility rules for the Florida KidCare program, a federally subsidized health insurance program for children in Florida.
The lawsuit challenges October 2023 guidance issued by CMS that directed states to provide CHIP-eligible children with one year of coverage “regardless of any changes in circumstances that otherwise would result in loss of coverage” and prohibited removing children from coverage for nonpayment of premiums, pursuant to the Consolidated Appropriations Act of 2023. The lawsuit argues that the guidance exceeds CMS’ statutory authority and “violate[s] Congress’s express allowance for ‘termination of coverage’ for a CHIP participant’s ‘failure to make a premium payment.’” Florida has called for the guidance to be enjoined and set aside.
The nonprofit Florida Policy Institute issued a statement in response to the lawsuit, arguing, “Seeking to undermine the new continuous eligibility requirement would jeopardize the health and wellness of Florida children.”
CMS had not issued a response to the lawsuit as of March 13, 2024.
Want to go deeper?
- Guidance
- Centers for Medicare and Medicaid Services
- United States District Court for the Middle District of Florida
Counting down the Congressional Review Act’s look-back provision
In a recent post for The Nickel Report, lawyers Joseph C. Stanko, Frederick R. Eames, and Brian R. Levey wrote about the look-back provision under the Congressional Review Act (CRA), which refers to a period of time at the beginning of a new administration in which rules published within the last 60 legislative days of the previous administration are eligible for consideration under the act. The authors argued that the provision could impact certain rules issued by the Biden administration and wrote that federal agencies should complete the rulemaking process for certain regulations before the end of May 2024 to avoid the regulations being subject to the provision:
These deadlines could affect the timing of many big ticket environmental regulations across multiple issue areas, such as the Council on Environmental Quality’s revisions to National Environmental Policy Act regulations, the US Environmental Protection Agency’s revisions to effluent and emissions guidelines for steam electric power plants, the Bureau of Ocean Energy Management’s renewable energy regulations facilitating offshore renewable energy development, the US Army Corps of Engineers’ reissuance and modification of Nationwide Permit 12, the US Fish and Wildlife Service and National Marine Fisheries Service’s revisions to regulations governing Endangered Species Act Section 7 consultations as well as listing and critical habitat designation criteria, and many others.
If, following the 2024 election, Republicans take control of the US Senate, maintain control of the US House of Representatives, and win back the presidency (no small endeavor but plausible nonetheless), then a Republican president inaugurated in 2025 could potentially work with the Republican-run Congress pursuant to the CRA to legislatively set aside some of the regulations that will be issued in the final months of the Biden Administration.
Want to go deeper?
- Click here to read the full text of “Federal Agencies Face Looming Congressional Review Act Deadline” by Joseph C. Stanko, Frederick R. Eames, and Brian R. Levey
Regulatory tally
Federal Register
- The Federal Register in February reached 15,010 pages.
- The February Federal Register included 199 proposed rules and 211 final rules. These included energy conservation standards for consumer conventional cooking products and amendments to the Defense Federal Acquisition Regulation Supplement (DFARS).
- Want to go deeper?
Office of Information and Regulatory Affairs (OIRA)
OIRA’s February regulatory review activity included the following actions:
- Review of 42 significant regulatory actions.
- Two rules approved without changes; recommended changes to 34 proposed rules; four rules subject to a statutory or judicial deadline.
- As of March 1, 2024, OIRA’s website listed 168 regulatory actions under review.
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Want to go deeper?
- Every month, Ballotpedia compiles information about regulatory reviews conducted by OIRA. To view this project, visit: Completed OIRA review of federal administrative agency rules
