Author: Will Dobbs-Allsopp

Regulatory policy group highlights the implications and consequences of the Supreme Court’s decision to overturn Chevron v. NRDC

WASHINGTON, DC — Governing for Impact Executive Director Rachael Klarman released the following statement:

“The Supreme Court’s decision is the latest in a line of extreme decisions that puts the interests of corporate law breakers, polluters, and anti-labor activists over the interests of the American people. However, the immediate impact of today’s decision may be limited. The Supreme Court has not relied on Chevron in a number of years. As a result, the Court has already dramatically intruded into the policy making process an area once thought to properly belong under the purview of the two democratically elected branches of the federal government and courts around the country have followed their lead, increasingly eschewing Chevron deference. The Biden Administration has also smartly been preparing for Chevron’s formal demise over the last four years and has not relied on the doctrine to defend its rules.

As a result, Loper Bright’s impact will depend on how we respond. Rather than self-limiting, advocates must continue to urge federal agencies to use every legal authority at their disposal to enact strong rules that protect consumers, workers, and the public.”

About Governing for Impact

Governing for Impact (GFI) is a regulatory policy organization dedicated to ensuring the federal government works for working Americans, not corporate lobbyists. The policies we design and the legal insights we develop help increase opportunity for those not historically represented in regulatory policy implementation work: working people. For additional information about GFI, please visit https://governingforimpact.org/.

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Advocacy groups are lobbying the Department of Health and Human Services to ban health care facilities from using noncompete agreements if they receive Medicare or Medicaid funding.

Noncompete agreements, common in the health care industry, prevent doctors from quitting and going to work for rivals. A similar contract provision, known as “stay-or-pay,” requires workers to pay their employer if they leave their job before a set date.

“This isn’t a major question. This is just the EPA fulfilling its statutory mandate to protect the public health and welfare,” said Will Dobbs-Allsopp, director of strategic initiatives at Governing for Impact.

Politico’s Morning Money highlighted a new letter from 5 administrative law scholars, who explain how a Section 956 incentive-based executive compensation rule could be finalized without starting from scratch.

Several progressive groups are urging financial regulators to finish the Dodd-Frank executive compensation rule, which would give the Federal Deposit Insurance Corp. the ability to claw back the compensation of some failed-bank executives — a growing priority for the Biden administration.

Legal analysis refutes claims that climate-risk rulemaking from the Commodity Futures Trading Commission would violate major questions doctrine

WASHINGTON, DC — Today, Governing for Impact (GFI) published a legal analysis defending the Commodity Futures Trading Commission’s (CFTC) authority to address climate-related financial risk. The CFTC is one of several regulatory agencies taking up President Biden’s call to incorporate the impacts of climate change into its rulemakings – and while the agency has yet to issue any new initiatives, opponents are already arguing that new rules on climate risk would violate the major questions doctrine. In its memo, GFI rebuts these claims. 

“Congress has charged the CFTC with safeguarding the stability of derivatives markets, including from the risks posed by a warming planet,” said Rachael Klarman, Executive Director at GFI.  “Our analysis shows that incorporating climate risk considerations into future rulemaking efforts would not implicate the major questions doctrine. We hope this insight encourages the agency to continue pursuing prudent, lawful steps to limit financial risk amid our rapidly-changing climate.”

The CFTC is responsible for regulating U.S. derivatives markets. In June 2022, the CFTC released a Request for Information (RFI) to seek public comment on all aspects of climate-related financial risk. While the agency has yet to issue any climate rule, critics – including Republicans attorneys general from 21 states – argue that any action to address climate-related risk would violate the major questions doctrine. The major questions doctrine was recently articulated in the Supreme Court’s 2022 decision West Virginia v. EPA, and has since been used to challenge numerous administration actions, including student debt relief. 

In its analysis, GFI finds that critics of potential CTFC action have either misconstrued the major questions doctrine or applied it without rigor. The attorneys general inaccurately measure “economic significance” under the MQD, for example, and incorrectly claim that Congress has weighed in on the question of CTFC climate regulation. Ultimately, GFI’s analysis shows that taking action to ensure the safety of financial markets amidst a changing climate, in addition to being a prudent step, is well within the agency’s authority. 

To read the full CTFC memo, please see here. For GFI’s comprehensive analysis of the major questions doctrine, please see here. 

About Governing for Impact

Governing for Impact (GFI) is a regulatory policy organization dedicated to ensuring the federal government works for working Americans, not corporate lobbyists. The policies we design and the legal insights we develop help increase opportunity for those not historically represented in regulatory policy implementation work: working people. For additional information about GFI, please visit https://governingforimpact.org/

Politico’s Morning Money blurbed GFI’s new memo, which rebuts suggestions that the Major Questions Doctrine will apply to any actions that follow from the CFTC’s climate risk RFI.