Audit, Compliance and Risk Blog

Feds Formally Propose to Roll Back Future Auto Emission Standards

Posted by Jon Elliott on Tue, Aug 21, 2018

TrafficThe Trump Administration has taken the next step toward rolling back automobile standards intended to reduce greenhouse gas (GHG) emissions. On August 2, the Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA) issued a joint proposal to replace emission standards previously adopted to tighten emission standards during model years 2021-2026, captioned the “Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks.” The agencies present a formal proposal to extend existing emission standards through those years, but also seek comments on several variations on this proposal.

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Tags: Environmental risks, Environmental, EHS, EPA, Greenhouse Gas, ghg, CAA, Transportation

EPA Adopts Rules to Expand Mercury Reporting

Posted by Jon Elliott on Tue, Aug 14, 2018

Among its many provisions, the 2016 Amendments to the Toxic Substances Control Act (TSCA) require EPA to compile and report an inventory of mercury supply, use, and trade in the United States. (I’ve written about programmatic changes to TSCA by the “Frank R. Lautenberg Chemical Safety for the 21st Century Act,” here, here, and here.) EPA was directed to publish an initial inventory, covering elemental mercury and mercury compounds, in April 2017, and to publish updates at least every three years thereafter.

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Tags: Environmental risks, Environmental, Hazcom, tsca

EPA Schedules Compliance Deadline for Revised Agricultural Worker Training Requirements

Posted by Jon Elliott on Tue, Jul 24, 2018

In November 2015, the Environmental Protection Agency (EPA) adopted significant amendments to the Agricultural Worker Protection Standard (WPS) that EPA administers using its Federal Insecticide Fungicide and Rodenticide Act (FIFRA) authority -- FIFRA provides national pesticide regulation, and the WPS is intended to ensure that workers know how to protect themselves when applying pesticides. EPA set compliance deadlines for most revised provisions on January 2, 2017 or January 2, 2018, but left the compliance deadline for expanded training open until the agency could develop and publish training materials. On June 22, 2018, EPA published notice that these materials are ready, giving employers until December 19 to upgrade their training programs accordingly.

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Tags: Employer Best Practices, Employee Rights, Training, Environmental risks, Environmental, EPA, Hazcom

EPA Proposes to Rescind Last Administration’s Long-Delayed Accidental Release Prevention Revisions

Posted by Jon Elliott on Tue, Jul 17, 2018

In the last week before President Obama left office, the Environmental Protection Agency (EPA) completed a multi-year review of its Accidental Release Prevention (ARP) program for toxic catastrophe prevention, and adopted significant expansions of ARP requirements (I wrote about them here). EPA proposed ARP revisions in March 2016 (I blogged about them here). Then, when President Trump took office, EPA reversed course, repeatedly deferring the effective date of those revisions while the agency reviewed them. In May 2018 EPA completed its review, and published a proposal in the Federal Register to rescind almost all these expansions and return ARP requirement to those in place before 2017. EPA also included an alternative proposal that retained a few more elements, and requested public comment on both versions no later than July 30, 2018.

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Tags: OSHA, Environmental risks, Environmental, EPA, Greenhouse Gas, ghg, Hazcom, effluent, mact

EPA Repeals Vacated Secondary Waste Management Rules

Posted by Jon Elliott on Tue, Jul 10, 2018

On May 30, the Environmental Protection Agency (EPA) repealed a number of regulations governing recycling of secondary materials, which EPA adopted as parts of a major rulemaking effective July 2015, but which were rejected by a federal court in decisions issued in July 2017 and March 2018. These rules apply the Resource Conservation and Recovery Act (RCRA) by creating exemptions from the “Definition of Solid Waste” to define a number of potentially hazardous wastes as “hazardous secondary materials”, and to establish special rules to allow generators and qualified third parties to recycle and recover qualifying materials. (I summarized the larger 2015 rules here). The remainder of this note identifies EPA’s latest changes.

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Tags: Environmental risks, Environmental, Hazcom, RCRA

Is it Time to Change How Federal Agencies Review Environmental Impacts?

Posted by Jon Elliott on Tue, Jul 03, 2018

The National Environmental Policy Act (NEPA) of 1969 requires federal agencies to assess the environmental effects of their proposed actions, and incorporate this information into their decisions. Agencies have each adopted their own review regulations, which focus on the search for “significant impacts,” and on alternatives and mitigation measures that will allow an agency to accomplish its goals. This all sounds good, but what does it all mean? For example, which impacts might be “significant?” How many alternatives should be considered, with what attendant costs and benefits?

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Tags: Environmental risks, Environmental

Facebook, Privacy and Your Business

Posted by Eric Robinson on Thu, Jun 28, 2018

Facebook and its chief executive, Mark Zuckerberg, are being criticized far and wide for the company’s lax privacy practices after it was revealed that the political data firm Cambridge Analytica had used a seemingly innocuous personality test to collect data on 87 million Facebook users, which it combined with data from other sources to develop psychological profiles that were used in support of President Trump’s 2016 campaign. A number of lawsuits have been filed against the site over privacy issues and the Cambridge Analytica incident in particular.

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Tags: Business & Legal, Internet, corporate social responsibility, directors & officers, social media

EPA Promulgates “Back-to-Basics” Process for Reviewing Air Quality Standards

Posted by Jon Elliott on Tue, Jun 26, 2018

On May 9, Environmental Protection Agency (EPA) Administrator Chris Pruitt issued a policy memo recasting his agency’s basic approach to review and revision of national ambient air quality standards (NAAQSs) – EPA’s broadest and most basic targets for national pollution levels. He entitles it a “Back-to-Basics” Process for Reviewing [NAAQSs]”, echoing the phrase he used last year to recalibrate the agency’s relationships with the public and its various stakeholders. (I blogged about this general policy here).

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Tags: Environmental risks, Environmental, Greenhouse Gas, ghg, CAA, mact

Congress Defines “Rule” Broadly, to Have More to Repeal

Posted by Jon Elliott on Tue, Jun 19, 2018

On May 21, President Trump signed legislation (Senate Joint Resolution (SJR) 57) disapproving compliance guidance issued by the Consumer Financial Protection Bureau (CFPB) in March 2013 as advice about compliance issues under the fair lending requirements of the Equal Credit Opportunity Act. This disapproval applies the Congressional Review Act (CRA), which requires agencies to provide Congress with information about newly-adopted rules, and then gives Congress 60 days to pass a resolution disapproving the rulemaking. (I wrote about this legislation and procedures here). In order to stretch its 60 day opening to over 60 months, Congress has for the first time expanded the meaning of “rule” to include guidance that Congress determines should have been acknowledged as a rule. Because CFPB treated its guidance as guidance, the agency did not submit rule-related information to Congress, which has now decided that failure means the 60 day time limit was never triggered and Congress was within its authority to disapprove this “rule.” 

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Tags: Business & Legal

Supreme Court Avoids Choosing Between Religion and Anti-Discrimination in Commerce

Posted by Jon Elliott on Tue, Jun 12, 2018

On June 4 the United States Supreme Court issued its highly-anticipated decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission … and avoided deciding the underlying dispute. The case arose after a baker refused to make one of his special artistic wedding cakes for a gay couple, because of his religious opposition to same-sex marriage. The baker, Jack Phillips, had been fined by the Colorado Civil Rights Commission (the Commission) for violating that state’s prohibitions against discrimination, setting up the chance for the Supreme Court to decide whether First Amendment religious freedoms include the right to refuse service to people protected against discrimination.

Instead of deciding that question, however, seven members of the Court decided that the Commission had demonstrated bias in considering Phillips’ prosecution for violating the Colorado Anti-Discrimination Act, violating Phillips’ Constitutional rights. Accordingly, they overturned state order penalizing him, and declined to reach the merits of the dispute.

The nine justices did produce a majority opinion, three concurring opinions, and a dissent – all of which talked around the tensions between the First Amendment and legal protection against discrimination, applying the facts in somewhat different ways to reach different conclusions about how disputes like this might be decided. Accordingly, the decision does provide some guidance about religious freedoms in commercial settings, which we can ponder while we await a future case that may decide the merits.

What Happened Between the Baker and His Would-Be Customers?

Jack Phillips runs a bakery, the Masterpiece Cakeshop. He considers himself an artist, who seeks to honor God and Jesus Christ through his work, including uniquely designed and executed wedding cakes. Charlie Craig and Dave Mullins sought to hire him to prepare a cake for their wedding reception (Colorado did not yet allow same-sex marriage, but they planned to marry in Massachusetts and return home to celebrate with family and friends). He refused to perform this special service for them because of his religious principles, but he did offer to make and sell other cakes or cookies that did not overtly implicate marriage.

The couple complained to the Colorado Civil Rights Commission, claiming that Phillips’ refusal violated the Colorado Anti-Discrimination Act prohibition against discrimination (including on the basis of sexual orientation) in places of “public accommodation.” This prohibition applies to service businesses such as bakeries.

What Did the Colorado Authorities Do With This Dispute?

After investigation, the Commission referred the case to an administrative law judge (ALJ) for hearing. The ALJ rejected Phillips’ argument that he’d violated no law since Colorado didn’t recognize same sex marriages, finding that his refusal to serve was based on sexual orientation discrimination. The ALJ also rejected his First Amendment arguments that his artistry constitutes protected Free Speech, and that the Free Exercise clause protects him against being forced to perform a service that violates his religious principles. Instead, the ALJ cited precedent for the proposition that the Anti-Discrimination Act is a “valid and neutral law of general applicability”, administration of which does not violate either aspect of the First Amendment.

Phillips appealed to the full Commission, which held a public hearing. At the hearing, one commissioner publicly disparaged Phillips’ arguments. First, that commissioner opined that religious beliefs cannot legitimately apply in commercial situations. More pointedly, that commissioner pointed out that religious arguments had been used to justify slavery and the Holocaust, and found such arguments to be “one of the most despicable pieces of rhetoric that people can use … to hurt others.” None of the other commissioners responded to these arguments, but the Commission ultimately found that Phillips and his Masterpiece Cakeshop had violated state law.

Phillips appealed, renewing his First Amendment arguments and arguing that hostility to his beliefs had tainted the Commission’s actions. He also pointed out that the Commission had recently found no discrimination in three cases against bakeries that refused to make cakes with lettering opposing same sex marriage, accepting those other bakers’ arguments that they refused because they found the requested message offensive. The Court of Appeals affirmed the Commission’s decision against Phillips, accepting the legal arguments that the Anti-Discrimination Law is neutral and withstands individual First Amendment claims, and disposing of the disparate enforcement claims in a footnote.

What Has the US Supreme Court Decided?

Justice Kennedy, who is frequently the swing vote between four conservative justices and four progressive justices, wrote the majority opinion. He emphasized tensions between First Amendment rights and growing anti-discrimination protections (which are, after all, grounded in Constitutional Equal Protection clauses), and recounted growing political and social trends that are rebalancing these rights. However, Justice Kennedy also wrote that the Court has consistently protected members of the public and their First Amendment religious rights against biased administrative agencies and their decisions, and chose to do so in this case by overturning the Colorado Human Rights Commission decision that Phillips had violated state law, and the intervening state court decision.

Six justices signed onto Justice Kennedy’s opinion. Two (justices Ginsberg and Sotomayor) dissented, finding that Phillips’ refusal to make one of his generally-available cakes for the gay couple violated Colorado’s anti-discrimination law. Accordingly, I’m seeing news analyses that a 7-2 majority has upheld religious rights for commercial businesses – or at least for self-employed service providers.

However, these interpretations ignore the detailed arguments and counter-arguments within the three concurring opinions and the dissent. In those opinions, eight of the nine justices offered different perspectives, which could have led to different outcomes that directly addressed the underlying questions about the applicability of First Amendment rights to commercial transactions. These differences include the possible scope of a First Amendment right in these situations – would a Masterpiece Cakeshop cake imply agreement with same-sex marriage, or a willingness to comply with state law (even begrudgingly), or just a commercial decision to make and sell a cake? Should services that merely require specialized skills (e.g., baking), receive different/lower protections than those that required special skills (e.g., baking artistry)? Does sale of a good or service imply that the provider endorses the customer’s circumstances?

What’s Next?

This case is over, but other cases are working their way through state and federal courts. Eventually, a case that’s not tainted by administrative bias will reach the Supreme Court, and when it does the nine justices then on the bench will have to decide it. Among the nine justices now on the Court, my reading is that four would have found for the baker, four would have found for the state. Only Justice Kennedy, who has recently denied (politically-motivated?) rumors that he may be considering retirement, has kept the icing on his views.

Self-Assessment Checklist

Does the organization ever decline to provide generally-available goods or services because of its owner(s)’ religious or ethical views?

If so, how is that business policy communicated to customers and/or the general market?

Where Can I Go For More Information?
  • Masterpiece Cakeshop v. Colorado Civil Rights Commission decision (on Supreme Court website) 

Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:

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Tags: Business & Legal