The End of “Chevron” or Its Rebirth?

Fishermen in the small town of Cape May, New Jersey, are at the epicenter of a legal challenge that could reshape the landscape of federal agency authority. The fishermen are challenging the entrenched “Chevron” doctrine, which for years has afforded deference to government agencies with respect to reasonable interpretation of ambiguous statutes. The US Supreme Court’s decision could change how industry engages Congress and fundamentally alter how businesses navigate an array of regulations spanning environmental, labor and other domains.

Read our analysis here.

President Biden Prepares Executive Order to Prohibit Foreign Adversaries’ Access to US Data

By Dominic Braithwaite, David Stewart and Ludmilla Kasulke on January 26, 2024 Posted in Data Privacy & Cybersecurity, US Executive Branch, US National Security/Supply Chains

According to reports originally from Bloomberg News, President Joe Biden is preparing to issue an executive order (EO) aimed at prohibiting US adversaries from accessing US personal data. While the draft is subject to change, the draft EO reportedly targets “highly sensitive” data, including genetic and location information, and would bar foreign adversaries from obtaining this data through legal means such as intermediaries, data brokers, third-party vendors, employment agreements, or investment agreements. Further, the EO would reportedly require that entities owned, controlled, or operated by countries of concern turn over data to the US government when requested. Significantly, the draft EO would restrict US entities and individuals from conducting data transactions that would provide adversarial countries with government-related or sensitive personal data, in addition to data that could jeopardize US national security.

Webinar: The New Foreign Extortion Prevention Act – What It Means for US Companies

By Capital Thinking on January 23, 2024 Posted in US Regulation

Please join us on Tuesday, January 30 for a discussion about “the most consequential anti-foreign-bribery law passed in almost 50 years”: the Foreign Extortion Prevention Act (FEPA).

Charting the Course: Congress Progresses Towards Meaningful Action on AI

By Genevieve Hubbard, Beth Goldstein and Kristin Bryan on January 17, 2024 Posted in 118th Congress, Data Privacy & Cybersecurity, Technology and Communications, US Regulation

This year, Congress is steadily progressing towards enacting meaningful legislation on artificial intelligence (AI) for the first time. At the end of 2023, Senate Majority Leader Chuck Schumer (D-NY) and his “Gang of Four” (Senators Todd Young (R-IN), Martin Heinrich (D-NM), and Mike Rounds (R-SD)) concluded their AI Insight Forums, a series of sessions where lawmakers discussed AI technology with industry leaders. Leader Schumer announced that senators are now beginning to work on AI legislation. He has reportedly empowered various Senate committee chairs to introduce legislation on topics within their jurisdiction related to AI and to begin the process of shaping those bills through their respective committees. For instance, it was reported by FedScoop that Senate Committee on Commerce, Science, and Transportation Chair Maria Cantwell (D-WA) is preparing to introduce a series of bills addressing AI issues, including deepfakes, jobs and training, algorithmic bias, digital privacy, national security, and innovation and competitiveness in the coming weeks and months. The initial focus of legislation may revolve around the clearest dangers posed by AI, including deepfakes and national security. Additionally, there is a growing interest in Congress regarding AI’s impact on elections, considering 2024 is an election year.

Winter Work: Congressional Action Items During This Election Year

By Capital Thinking, Patricia H. Doersch, Everett Eissenstat, Beth Goldstein, David LesStrang, David Schnittger and Austin M. Harrison on January 5, 2024 Posted in 118th Congress, Budget and Appropriations, SPB Global Public Policy Thought Leadership

A new year means a new congressional session – yet our lawmakers are carrying over policy debates that did not conclude in consensus prior to their holiday recess. The House of Representatives and Senate will consider critical government funding legislation, deadline-driven authorizing bills, and other potential reforms, but agreement will need to be found between members of the same party, between Democrats and Republicans, between the two chambers, and between Congress and the White House. With the shadow of the ballot box growing darker by the day, we take a high-level look at what our legislative branch may undertake prior to election day in November.

Read full insight here.

Sustainability First, Antitrust Second? – The EU Commission’s New Rules on Agriculture Cooperations

By Oliver Geiss, Gorka Navea and Lea-Theresa Voss on December 11, 2023 Posted in Europe

Sustainability considerations, i.e., ensuring animal welfare and tackling food waste, climate change, pollution, exploitation of natural resources and human rights violations, have taken a stake in the Commission’s rule book. Not only is the Commission increasingly integrating these considerations into its merger case practice[1], e.g., when assessing the market definition and the competitive landscape. The Commission has also dedicated legislative efforts.

Biden Administration Finalizes Greenhouse Gas Target Rule that is Likely to Draw Challenges

By Patricia H. Doersch, Karen Winters, Katherine Wenner and Michael Hawthorne on December 4, 2023 Posted in Energy, Environment and Natural Resources, US Executive Branch, US Regulation

The Federal Highway Administration (FHWA) recently released a prepublication version of its final rule establishing a greenhouse gas (GHG) emissions measure. The final rule establishes a method for measurement of GHG emissions associated with transportation and requires state departments of transportation (State DOTs) and metropolitan planning organizations (MPOs) that have National Highway System (NHS) routes within their jurisdiction to establish targets for reducing GHG emissions from on-road sources and to report on their efforts to meet those targets. The rule will take effect thirty days after the date of its publication in the Federal Register. State DOTs are required to establish targets and report those targets by February 1, 2024. Subsequent targets would be established and reported by no later than October 1, 2026.

U.S.-China Relations: A Warming Trend Sparks Opportunities for Chinese Business

By Pablo Carrillo, George Grammas, Edward Newberry and Dominic Braithwaite on November 9, 2023 Posted in 118th Congress, Congressional Oversight, International Trade Policy, US National Security/Supply Chains

In recent years, the U.S.-China bilateral relationship has hit historic lows, marked by notable events like the Chinese spy balloon incident in February and former Speaker of the House Nancy Pelosi’s visit to Taiwan in 2021. However, there is reason for optimism as we have witnessed a significant shift in dynamics over the past few months that may present opportunities for some Chinese businesses that have been negatively impacted by the geopolitical tensions.

Carbon Border Adjustment Mechanism (CBAM) Transitional Phase Now in Effect

By Wolfgang Maschek, Valerio Giovannini and Thomas Delille on November 6, 2023 Posted in Europe

International freight or shipping service for online shopping or ecommerce concept : Paper boxes or carton put in circle around a clear crystal globe with world map on a computer notebook keyboard.

The European Commission has adopted the implementing regulation establishing the rules for the CBAM during its transitional phase, spanning from October 1, 2023, to the end of December 2025. The implementing regulation delineates the reporting obligations imposed on EU importers of CBAM goods and the methodology for calculating embedded emissions in their production. This insight covers the regulation in full and looks at the concerns for the industry.

European Union Sustainability Outlook

By Wolfgang Maschek, Christina Economides, Nina Kusnierkiewicz and Valerio Giovannini on November 3, 2023 Posted in Europe

European Union flags in front of the blurred European Parliament in Brussels, Belgium

With the European Commission driving forward “Fit for 55” – its plan for a green transition – we have selected relevant developments in EU sustainability law and policy from the past few months.

PFAS Restriction Proposal

By Wolfgang Maschek, Valerio Giovannini, Everett Eissenstat and Dave Gordon on November 1, 2023 Posted in Europe

To curb an unacceptable risk to human health or the environment, Germany, Denmark, the Netherlands, Sweden and Norway jointly proposed a restriction proposal to ban over 10,000 Per- and Polyfluoroalkyl Substances (PFAS) commonly designated as “forever chemicals” under Article 68 of the REACH regulation.

U.S. Executive Branch Update – October 5, 2023

By Stacy Swanson on October 5, 2023 Posted in US Executive Branch

US executive branch text over image of White House

This report provides a snapshot of the U.S. Executive Branch priorities via daily schedules and the prior day’s press releases.

POTUS’ Schedule*

12:00 p.m. EDT – THE PRESIDENT receives a briefing on Ukraine from members of his national security team | Oval Office

Key Areas of Focus in U.S.-China Relations and Their Impact on Businesses in the 118th Congress

By Pablo Carrillo, Ludmilla Kasulke, Adam Berg, Dominic Braithwaite and Feier Wu on October 4, 2023 Posted in 118th Congress, Congressional Oversight, US National Security/Supply Chains

So far in the 118th Congress, U.S.-China relations have been a major focus for Democrats and Republicans alike. House Republicans, the opposition party, tried to challenge the Biden Administration’s approach to China, which involves competing with China, cooperating when possible, and confronting them when necessary.^[1]

U.S. Executive Branch Update – October 2, 2023

By Stacy Swanson on October 2, 2023 Posted in US Executive Branch

This report provides a snapshot of the U.S. Executive Branch priorities via daily schedules and the prior day’s press releases.

POTUS’ Schedule*

11:15 a.m. EDT – THE PRESIDENT receives the Presidential Daily Briefing; The Vice President attends | Oval Office

2:00 p.m. EDT – THE PRESIDENT delivers remarks to celebrate the Americans with Disabilities Act; The Vice President and The Second Gentleman attend | South Lawn

Trade Preference Program Revival: Congress Considers GSP, But Provides No Clear Path Forward

By Everett Eissenstat, Ludmilla Kasulke and Genevieve Hubbard on September 28, 2023 Posted in International Trade Policy, US National Security/Supply Chains

On Wednesday, September 20, the House Ways and Means Subcommittee on Trade held a long-anticipated hearing titled “Reforming the Generalized System of Preferences (GSP) to Safeguard U.S. Supply Chains and Combat China.” In their separate opening statements, both Subcommittee Chairman Adrian Smith (R-NE) and Subcommittee Ranking Member Earl Blumenauer (D-OR) highlighted the evolving landscape of international trade policy since the inception of the Generalized System of Preferences (GSP) in 1974 and stressed the ongoing strategic and economic concerns related to China. Chairman Smith underscored the importance of preserving U.S. production through the exclusion of import-sensitive products within GSP but expressed interest in evaluating the effectiveness of the exclusion process. He criticized the Biden administration for not reducing tariffs to enhance access for U.S. agricultural producers and expressed interest in exploring new criteria for digital trade. Ranking Member Blumenauer (D-OR) specifically called for updates to labor, environmental, and human rights criteria within GSP, as well as addressing rules of origin. Blumenauer also emphasized the need to reauthorize the Trade Adjustment Assistance (TAA) program.