The Trump Administration continued its rollback of regulations from the previous Administration in two areas important to ICSC members.
This week, the Environmental Protection Agency (EPA) and Army Corps of Engineers proposed a rule to rescind the Clean Water Rule and re-codify the regulatory text that existed prior to 2015 defining "waters of the United States" (WOTUS). The proposed rule reverts back to a narrower definition of what constitutes the term and follows the February 28, 2017, Presidential Executive Order on "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule."
This development is the first step in the two-step process to redefine “waters of the U.S.” There are still many issues with the previous regulations and guidance that must be addressed through a separate rulemaking. In partnership with the agricultural, construction, manufacturing, recreation, utility, and mining industries, ICSC earlier this month met with officials from the EPA, Army Corps of Engineers, White House Office of Information and Regulatory Affairs (OIRA), White House Office of Management and Budget (OMB), National Economic Council (NEC), and Small Business Administration (SBA) to discuss the process of repealing the Obama-era Clean Water Rule and replacing with a new rule.
Administration officials are committed to moving through this re-evaluation quickly to provide regulatory certainty, something we do not have with the current stay from the 6th Circuit. During the meeting mentioned above, ICSC communicated the critical need to quickly rescind the 2015 Clean Water Rule in a targeted, separate action that is not tied up with a new WOTUS rule. The ICSC Environmental Subcommittee is evaluating next steps for industry involvement in the recodification process.
On June 7, new Secretary of Labor Alexander Acosta withdrew the U.S. Department of Labor’s previous guidance which expanded the definition of a joint employment and blurred the lines for independent contractors. The expanded joint employer definition has caused significant concern to shopping center owners, service providers, and tenants worried about their ability to operate as independent entities and jeopardizing current and future contractual relationships.
The guidance was similar to the Browning Ferris Industries (BFI) decision by the National Labor Relations Board (NLRB) in August 2015, the legality of which is currently being challenged in United States Appeals Court. ICSC has expressed concern to the Department of Labor, the National Labor Relations Board, Congress and the courts over the expanded definition of a joint employer and we welcome this action from Secretary Acosta. This withdrawal marks a positive first step in restoring established labor policy that two or more employers must have “actual, direct, and immediate” control over employees to be considered joint employers. ICSC is urging Congress to build on this progress by passing legislation that permanently clarifies the joint employer standard.