After the Supreme Court of the United States rejected EPA and the Army Corps’ excessive claims of authority under the Clean Water Act in Rapanos v. United States, the agencies jointly issued a guidance memorandum exploiting every ambiguity in the Supreme Court’s opinions to reassert broad authority.
This guidance—an outgrowth of the highly criticized “disparate impact” theory of racial discrimination—threatens employers with lawsuits and liability for using criminal background checks in the hiring process if EEOC believes that it is not necessary for the employers’ business needs.
Obamacare permits states to seek a waiver of the Act’s requirements if the state can show that it will increase health insurance coverage and affordability.
In 2016, the Bureau of Alcohol, Tobacco, Firearms, and Explosives issued a guidance expanding its ability to regulate gun sales. Historically, a federal firearms license has not been required by the many Americans who occasionally buy or sell firearms at gun shows or private sales.
To avoid the destructive impacts of the proposed listing of the Greater sage grouse---a species whose habitat covers 165 million acres across 11 states---property owners, industry, environmental groups, and state and local governments worked together on voluntary, collaborative conservation plans to protect the species without the need for a federal listing.
In July 2015, the U.S. Department of Housing and Urban Development adopted a regulation, called the Affirmatively Furthering Fair Housing Rule (AFFH Rule), which effectively federalized local residential development, planning, and zoning laws.
In 1993, Congress passed legislation requiring the Army Corps of Engineers to use a particular manual to identify wetlands subject to federal regulation under the Clean Water Act until it legally promulgates a final manual to replace it, which it has never done
In August of 2016, the EEOC issued a guidance document that greatly expanded the risk of retaliation claims for employers under Title VII of the Civil Rights Act of 1964. Previously, the anti-retaliation prohibition protected employees who opposed some illegal employer conduct to be protected from retaliation.
In 2011, the Environmental Protection Agency adopted a rule called, in the technical language of the Clean Water Act, a “total maximum daily load,” for the entire Chesapeake Bay watershed, which spans portions of six states (Virginia, West Virginia, Delaware, Maryland, Pennsylvania, and New York) and the District of Columbia.
In February of 2013, a Deputy Assistant Secretary in the Obama Administration’s Occupational Safety and Health Administration (OSHA) unilaterally decreed that OSHA inspectors could bring union officials along with them on worksite safety inspections on non-unionized employers, so long as one employee requests it, and without the employer’s consent.
In July 2015, the Department of Labor issued an Administrator’s Interpretation that de facto converted independent contractors into employees for purposes of minimum wage and overtime requirements.
In the 1980s, Congress passed the Arizona Wilderness Act of 1984, which designated certain public lands in Arizona as wilderness and opened up other public lands for multiple use, including mineral development. According to Senator John McCain, the Arizona Wilderness Act was a compromise “that successfully balanced conservation with mining and other commercial activities.”