Thought Leadership

Biden Administration First 100 Days Weekly Report - Episode 11

Client Updates

In the latest installment of our video series on important regulatory and legislative events in the first 100 days of the Biden Administration, Associate Emily Mott gives us the latest on the Leaders Summit on Climate, EPA Administrator Regan's stance on the EPA's 2022 budget and an update on the Climate Task Force recently launched by Secretary Haaland. 

Senior Associate Leslie Hodge provides an update on the Biden Administration's cancellation of two offshore wind development zones - Fairways North and Fairways South. 

Associate Emily Hutson discusses the confirmation hearing for Commissioner Lina Khan and the key takeaways from the Senate Judiciary Committee's meeting on Competition Policy, Antitrust, and Consumer Rights.

Lastly, Partner George Fibbe gives us the latest news on securing the nation's bulk power system. 

We will continue to provide weekly updates on the relevant administrative and legislative actions through the first 100 days. 

 

 

The Administration marked Earth Day on April 22 with the Leaders Summit on Climate. The international virtual event showcased the Administration’s commitment to elevating climate science. President Biden urged attending world leaders to outline how they will elevate climate action.

EPA Administrator Regan appeared twice on Capitol Hill this week. First, Regan advocated for the President’s 21 percent increase in EPA’s 2022 budget before House Appropriations. Regan also supported before Senate Appropriations the President’s American Jobs Plan which calls for over $2 trillion infrastructure and climate mitigation investments.

This week, Interior Secretary Haaland launched a Climate Task Force focused on climate change adaptation and resilience; current and historic environmental injustice; and conserving managed lands. The Task Force will work with states, tribes, local governments, and communities.

Last week the Biden Administration cancelled two offshore wind development zones. Fairways North and Fairways South are part of a larger development zone that the Bureau of Ocean Energy Management is studying for an anticipated lease-sell in late 2021. This cancellation leaves more than 627,000 additional acres for development in the New York wide area

Nevertheless, prospective developers should keep in mind the stated grounds for the cancellation conflicts with maritime traffic fishing and seaside views.This cancellation occurs less than a month after the White House announced a target of 30 gigawatts of offshore wind by 2030.

This announcement was made at a meeting convening Cabinet and senior officials across the Administration which included the specific goals of advancing critical permitting milestones and access to $3 billion in debt capital through the DOE loan program.

The cancelled zones are directly south of New York’s Great South Bay and Hamptons communities

On Wednesday, the Senate held a confirmation hearing for Lina Khan, who Biden recently nominated as a Commissioner of the Federal Trade Commission. 

Ms. Khan’s testimony emphasized her history serving on the House Judiciary Subcommittee on Antitrust, Commercial, and Administrative law, during which she led a 16-month bipartisan investigation into digital markets. Her testimony was consistent with her previous criticisms of big tech and the need for antitrust reform in the digital space.

In particular, Ms. Khan focused on the difficulties of enforcement in an industry that is constantly evolving, claiming that “the agencies have been a little slow to catch up to the underlying business realities and the empirical realities of how these markets work,” noting that the antitrust agencies must “keep pace” with the rapidly growing digital economy.  Ms. Khan also testified about the increasing concentration of ad markets and the arbitrary nature of algorithm changes, which could have wide-ranging effects across many industries. Ms. Khan faced very little criticism from the panel, although Sen. Blackburn (R-TN) appeared concern about her lack of experience.

This Wednesday, executives from Apple, Google, and other tech companies appeared before the Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights to discuss their dominance in the  app store market.  

During the hearing, app developers, including Spotify, Match Group and Tile, claimed that the tech giants have abused their market dominance and harmed competition. During the hearing, Jared Sine (Chief Legal Officer, Match Group) claimed that app store fees account for Match Group’s single largest expense ($500M annually).  

Sen. Mike Lee challenged Apple to explain its commission structure and why certain services, such as Uber, were excluded from its commission requirement while others, such as Spotify, were still subject to it.  Apple executives argued that a valid distinction existed between the services offered by the apps, which was strongly disputed by members of the committee and representatives for the app developers.

During the hearing, Tile executives likened Apple’s “Find My” network to a “hostage” program which imposes excessively strict terms and conditions.

The key takeaway from the hearing was that bipartisan support for strong tech regulation is growing, and while the Competition and Antitrust Law Enforcement Reform Act may not pass in the immediate future, pressure is building among lawmakers. 

On Monday, Sen. Josh Hawley (R-MO) introduced the “Bust Up Big Tech Act.” Hawley’s proposed legislation would target tech giants, many of whom are already facing significant scrutiny from legislators and enforcement agencies alike.

The bill would ban tech companies that market search engines, marketplaces, and exchanges from selling or advertising goods and services in ways that compete with third parties, as well as ban big tech companies from providing internet infrastructure and hosting for other companies.  In addition, the Act would grant the FTC the ability to monitor companies’ compliance with the bill, and allow state attorneys general and private citizens the right to bring civil suits against any non-compliant firms.

The bill comes on the heels of Hawley’s “Trust Busting for the 21st Century Act,” which would ban all mergers and acquisitions by companies that have a market capitalization exceeding $100b, which would make it more challenging for big tech companies to buy and incorporate other tech groups.

On May 1, 2020. E.O. 13920, Securing the United States Bulk-Power System,2 issued, authorized the Secretary of Energy (Secretary) to take actions to secure the Nation’s bulk-power system (BPS). In particular, E.O. 13920 authorized the Secretary to prohibit the acquisition, transfer, or installation of certain BPS electric equipment sourced from foreign adversary countries. On December 17, 2020, the Secretary issued a Prohibition Order whereby a limited number of utilities were prohibited from acquiring, importing, transferring, or installing certain BPS electric equipment. That order targeted select equipment manufactured or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of the People’s Republic of China. On January 20, 2021, Executive Order 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, was issued, which suspended E.O. 13920 for 90 days, and this also according to DOE suspended the Prohibition Order.  That suspension has expired and effective April 20, 2021, the Secretary revoked the December 2020 Prohibition Order to allow for the Department to conduct this Request for Information to develop a strengthened approach to address the supply chain security of the U.S. electricity subsector.

Adversarial nation-state actors are targeting our critical infrastructure, with increasing focus on the energy sector. For example, the government of People’s Republic of China is equipped and actively planning to undermine the electric power system in the United States. The growing prevalence of essential electric system equipment being sourced from China presents a significant threat, as Chinese law provides opportunities for China to identify and exploit vulnerabilities in Chinese-manufactured or supplied equipment that are used in U.S. critical infrastructure that rely on these sources. In the meantime, DOE is relying on utilities to engage in prudent practices when it comes to sourcing critical equipment.

 

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