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On RTP’s Fourth Branch Podcast, leading experts discuss the pros and cons of government regulations and explain how they affect everyday life for Americans.
The Biden administration has pledged to meet what it calls "the accelerating threat of climate change" with a wide-ranging campaign to discourage the production and use of fossil fuels in order to control the emission of carbon dioxide and other greenhouse gases said to be the principal cause of global warming. The White House has directed regulatory agencies and departments across the executive branch to "tackle the climate crisis." The administration has set a goal to eliminate carbon dioxide emissions from the electric power sector by 2035.
The Federal Energy Regulatory Commission, or FERC, is an independent regulatory agency whose enabling statutes include the Federal Power Act and the Natural Gas Act. FERC's statutory responsibilities include regulation of the transmission and wholesale sale of electricity in interstate commerce, and authorization of proposals for the construction and operation of interstate natural gas pipelines and storage facilities.
Doing its part to tackle the climate crisis, FERC has proposed a new policy that will greatly expand the scope of the climate-related environmental impact analysis required for proposed natural gas projects. Traditionally, such analysis has been limited to an evaluation of the emissions that would result directly from the construction and operation of the proposed project. Going forward, FERC is proposing that such analysis will also evaluate the emissions that would result indirectly from the upstream production and downstream use of the natural gas to be handled by the proposed project.
In other policy statements having to do with the electric sector, FERC has announced that it will consider proposals from entities it regulates to add into wholesale electricity prices any charges that are levied by state regulators on greenhouse gases emitted by the power plants producing the electricity.
Does FERC have the legal authority to implement these new climate-related policies and, by doing that, dramatically expand the scope of its regulatory activities? J. Kennerly Davis, Jr. and Bernard McNamee joined us for a probing, wide-ranging discussion of the statutes and case law that provide the answer to this vitally important question.
Featuring:
- J. Kennerly Davis, Jr., Former Senior Attorney, Hunton Andrews Kurth LLP; Former Deputy Attorney General for Virginia
- Bernard L. McNamee, Partner, McGuireWoods LLP; Former Commissioner, Federal Energy Regulatory Commission
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Senior officials in the Administration have expressed concern about cryptocurrencies being used for criminal activity and undermining the dollar as the global reserve currency. These concerns have been heightened with the Russian invasion of Ukraine, evasion of sanctions including North Korean sanctions, cyberattacks, and ransomware. Others contend that blockchain transactions are easier to trace than physical cash, and that the Administration's concerns are exaggerated and could stifle innovation. China has banned cryptocurrencies and developed its own central bank digital currency (CBDC). It appears that the digital yuan will be used by the Chinese government for surveillance purposes to closely monitor personal transactions and behavior. A number of other regimes, including Canada, have used the banking and monetary system to silence dissidents. Some say that dissidents and citizens in countries that have unstable fiat currencies have turned to bitcoin and other cryptocurrencies to escape the national currency and protect their rights; other say cryptocurrencies are used by criminals and terrorists.
This very timely panel discussed whether the US can develop policies on digital assets that both protect freedom and privacy and maintain our safety from bad actors, and what the trade-offs with the dollar's international role might be.
Featuring:
- Michele Korver, Head of Regulatory, a16z Crypto
- Kathy Kraninger, Vice President of Regulatory Affairs, Solidus Labs; Former Director, Consumer Financial Protection Bureau
- Norbert Michel, Vice President and Director, Center for Monetary and Financial Alternatives, Cato Institute
- Mick Mulvaney, Co-Chair, Actum LLC; Former Director, Office of Management and Budget
- [Moderator] Dina Ellis Rochkind, Counsel, Government Affairs and Strategy, Paul Hastings
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In February 2019, then General Counsel of the Department of Transportation (DOT), Steven Bradbury, issued a memo later dubbed the "Bradbury Memo" that addressed concerns about civil enforcement abuse at the agency. Parts of the memo were subsequently made into binding DOT rules. DOT asserted that these rules were designed to protect the due process rights of those who were the subject of DOT enforcement actions, including a requirement that the agency disclose all exculpatory evidence to those targeted by civil enforcement and the prohibition of "fishing expedition" investigations without sufficient evidence to support a violation.
On April 2, 2021, DOT rescinded these rules without the opportunity for public comment. Thereafter Polyweave Packaging Inc., a company that had been issued a civil penalty order by DOT over alleged regulatory violations, filed suit against DOT claiming the agency violated its due process rights by revoking the Bradbury Memo rules.
The U.S. District Court for the Western District of Kentucky ruled in favor of DOT, the case has been appealed to the Sixth Circuit Court of Appeals and oral arguments were on May 5, 2022.
Featuring:
- Steven Bradbury, Attorney; Former General Counsel, Department of Transportation
- Sheng Li, Litigation Counsel, New Civil Liberties Alliance
- [Moderator] Beth Williams, Board Member, U.S. Privacy and Civil Liberties Oversight Board; former Assistant Attorney General, U.S. Department of Justice
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On June 23, 2022, David A. Carrillo, Christina Sandefur, Robert F. Williams and moderator Braden Boucek joined us to debate the different purposes and rights guarantees within state constitutions and the federal constitution. What are the federalism implications of an increased focus on state constitutional rights, if that's really the trend? What does the map of states look like if some federal liberties roll back, and does the distribution depend on which rights roll back or expand. These topics and more were explored by this excellent panel of knowledgeable state constitutional law experts.
Featuring:
- David A. Carrillo, Lecturer in Residence and Executive Director, California Constitution Center, University of California, Berkeley, School of Law
- Christina Sandefur, Executive Vice President, Goldwater Institute
- Robert F. Williams, Distinguished Professor of Law and Director, Center for State Constitutional Studies, Rutgers University of School of Law
- [Moderator] Braden Boucek, Director of Litigation, Southeastern Legal Foundation
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Cryptocurrency. Decentralized finance. Nonfungible tokens. Once only experts on the cutting edge of financial services were familiar with these terms. Now, with the emergence of digital assets within the global financial system, crypto, DeFi, and NFTs are becoming part of the mainstream financial services lexicon.
The rapidly emerging crypto ecosystem faces uncertainty within a regulatory regime designed for very different institutions and securities. In response, on March 9, 2022, President Biden issued an executive order, “Ensuring Responsible Development of Digital Assets,” which ordered agencies to submit policy recommendations based upon multiple principles such as: providing consumer protection, ensuring U.S. financial system stability, mitigating systemic financial risk, responsibly developing digital assets, and examining the creation of a U.S. Central Bank Digital Currency (CBDC). Supporters of increased financial regulation over cryptocurrency see this as a necessity to provide security essential to ensuring financial stability and consumer protection within the digital asset space. Others view these federal regulatory efforts as a threat to future opportunities for economic innovation.
At a live Regulatory Transparency Project event, following remarks from SEC Commissioner Hester M. Peirce, an expert panel including Jerry Brito, Ryan Selkis, Todd Phillips, and moderator J.W. Verret discussed current and future efforts at regulation of cryptocurrency and its implications for innovation, financial stability, and consumer protection.
Featuring:
Jerry Brito, Executive Director, Coin Center
Todd Phillips, Director, Financial Regulation and Corporate Governance, Center for American Progress
Ryan Selkis, Co-Founder and CEO, Messari
[Moderator] Prof. J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University
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Cryptocurrency. Decentralized finance. Nonfungible tokens. Once only experts on the cutting edge of financial services were familiar with these terms. Now, with the emergence of digital assets within the global financial system, crypto, DeFi, and NFTs are becoming part of the mainstream financial services lexicon.
The rapidly emerging crypto ecosystem faces uncertainty within a regulatory regime designed for very different institutions and securities. In response, on March 9, 2022, President Biden issued an executive order, “Ensuring Responsible Development of Digital Assets,” which ordered agencies to submit policy recommendations based upon multiple principles such as: providing consumer protection, ensuring U.S. financial system stability, mitigating systemic financial risk, responsibly developing digital assets, and examining the creation of a U.S. Central Bank Digital Currency (CBDC). Supporters of increased financial regulation over cryptocurrency see this as a necessity to provide security essential to ensuring financial stability and consumer protection within the digital asset space. Others view these federal regulatory efforts as a threat to future opportunities for economic innovation.
At a live Regulatory Transparency Project event, SEC Commissioner Hester M. Peirce addressed current and future efforts at regulation of cryptocurrency and its implications for innovation, financial stability, and consumer protection. An expert panel including Jerry Brito, Ryan Selkis, Todd Phillips, and moderator by J.W. Verret then followed the Commissioner’s remarks with a lively panel discussion.
Featuring:
Hon. Hester M. Peirce, Commissioner, United States Securities and Exchange Commission
[Introduction] Prof. J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University
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On May 5, the United States Department of Justice (DOJ) announced a new "Comprehensive Environmental Justice Strategy." One piece of this new strategy was an Interim Final Rule reintroducing the use of Supplemental Environmental Projects (SEPs) in environmental enforcement action settlements.
As defined by the Biden administration, SEPs are "local projects that defendants can agree to undertake as part of an enforcement case settlement to help rectify environmental violations." These projects were outlawed under the Trump DOJ due to concerns that their use expands DOJ discretionary authority beyond its statutory limits. The Biden administration, however, argues that "SEPs help to fulfill the goals of the underlying statutes being enforced and can provide important environmental and public health benefits to communities that have been harmed by environmental violations."
On June 15, 2022, three executive branch veterans with a range of views on the issue joined us for a virtual discussion on the return of SEPs.
Featuring:
- Michael Buschbacher, Counsel, Boyden Gray & Associates PLLC
- Justin A. Savage, Global Co-Lead, Environmental Team, Sidley Austin LLP
- [Moderator] Annie Donaldson Talley, Partner, Luther Strange and Associates
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On June 7, 2022, the Regulatory Transparency Project hosted a live discussion on occupational licensing via Twitter Spaces.
Utah Governor Spencer J. Cox opened the program with remarks on licensing reforms his state has recently pursued, and an expert panel featuring Jon Gabriel, Scott Lincicome, Colin Mortimer, and moderator Shoshana Weissmann then broke down the Governor’s remarks and discussed the issue more broadly.
Featuring:
- Spencer J. Cox, Governor, State of Utah
- Jon Gabriel, Editor-in-Chief, Ricochet
- Scott Lincicome, Director, General Economics and the Herbert A. Stiefel Center for Trade Policy Studies, Cato Institute
- Colin Mortimer, Director, Center for New Liberalism
- [Moderator] Shoshana Weissmann, Senior Manager of Digital Media and Fellow, R Street Institute
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As the cryptocurrency industry grows, state and federal governments are considering how that industry should be regulated. The President has directed the Secretary of the Treasury to report soon on the issues involved. A draft bill that would regulate stablecoins has been released in the U.S. Senate. Meanwhile, states are competing with one another to adopt regulatory laws that may attract cryptocurrency firms to their welcoming, but taxing, arms striving for economic growth.
Will regulation be designed to avoid discouraging innovation in a highly creative environment? Fears have been expressed that unregulated cryptocurrency could theoretically present systemic risk, and consumers may need to be protected–particularly in light of the recent collapse of the Luna cryptocurrency and its related Terra stablecoin. Some believe that regulation may be an opportunity to include those presently unserved by the banking system. Complicating this already complicated picture may be rivalry among multiple federal agencies, including the banking regulators, the Securities and Exchange Commission, the Commodities Futures Trading Commission, and the Federal Trade Commission, each of which may make a case for potential authority over aspects of the cryptocurrency industry. Our panel of experts addressed these timely and controversial questions.
Featuring:
- Douglas Elliott, Partner, Oliver Wyaman
- Michael Piwowar, Executive Director, Milken Institute Center for Financial Markets
- Dawn Stump, Former Commissioner, U.S. Commodity Futures Trading Commission
- Thomas Vartanian, Executive Director, Financial Technology & Cybersecurity Center
- [Moderator] Paul N. Watkins, Senior Advisor, Patomak Global Partners
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In this episode, Adam Thierer interviews Professor Daniel Crane regarding state restrictions on direct car sales and their implications for automobile markets, including the antitrust concerns they may raise.
Featuring:
- Daniel Crane, Frederick Paul Furth Sr. Professor of Law, University of Michigan Law School
- [Moderator] Adam Thierer, Senior Fellow, Mercatus Center, George Mason University
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.
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