Wake Forest Law Review
9Mar

Competitive Grant Applications for Allocating State Revolving Funds Need to be Reconsidered to Curb Ongoing Disparate Impact on Marginalized Communities

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Grace Kinley

The Clean Water State Revolving Funds (CWSRF)  and Drinking Water State Revolving Funds (DWSRF) are the largest sources of federal funding for water infrastructure.[1] The CWSRF provides low-cost financing for water quality infrastructure projects and the DWSRF provides financial assistance to help water systems achieve the objectives of the Safe Drinking Water Act.[2] Both of these State Revolving Funds (SRFs) are intended to increase communities’ ability to take on large water infrastructure projects to provide safe and clean water to their community members.[3] In reality, the communities that are most in need of this funding are often unable to access it. In most states, SRFs are allocated based on a competitive loan application process.[4] Across the country, most water systems have never applied for any SRF assistance, and decision-makers for small systems that serve fewer than 10,000 people are the least likely to apply.[5] Many decision-makers choose not to apply for SRFs because they feel they have insufficient training and time to meet the technical requirements of the applications.[6]

One solution that has been proffered for this dilemma is providing technical assistance to communities to help them complete the application process.[7] In theory, this technical assistance would allow for a more equitable distribution of SRFs; however, at least two obstacles prevent technical assistance from being particularly successful.[8] First, technical assistance will only be helpful if it happens to be given to a community whose application is ultimately accepted for funding. Otherwise, the technical assistance funding is wasted because the application the assistance helped create is never put into use. Therefore, for technical assistance to be beneficial, states must actively seek out water systems that serve overburdened communities and encourage them to participate in the application process.[9] This places an additional burden on SRF state administrators who already have a heavy workload of scoring applications and dispersing funds accordingly.[10] Second, federal statute only allows states to use up to four percent of their SRF capitalization grants for administration and technical assistance.[11] In most states, this is likely not enough funding to provide meaningful technical assistance to all of the low-capacity communities that need it.

Another strategy, and potentially more beneficial solution to this dilemma, is that states could provide funds to low-capacity communities without relying on a competitive loan application process. Instead, states could create sub-funds within their SRFs and use that funding to seek out overburdened water systems to plan and implement water infrastructure projects collaboratively. States administer DWSRF resources with significant discretion.[12] Under the Safe Drinking Water Act, states may set aside up to thirty-one percent of their DWSRF capitalization grant to fund state programs or third parties to provide assistance to and develop the capacity of drinking water systems.[13] This set-aside funding can be used to fund activities that are unique to a state’s individual needs.[14]  For example, Massachusetts used a portion of its set-aside to initiate stakeholder involvement that encourages partnerships between nonprofit organizations and low-capacity communities.[15] These non-profit organizations then offered training, site visits, and mentoring to the low-capacity water systems.[16]

Instead of relying exclusively on the four percent of their SRF capitalization grants for administration and technical assistance, a state could potentially use a portion of its thirty-one percent set aside to seek out low-capacity communities to develop and implement water projects jointly with those communities. This not only would allow a greater percentage of funding to go to these low-capacity communities, but it would also eliminate the risk that technical assistance would be provided to a community whose application is not ultimately accepted. This strategy would potentially be less burdensome on SRF state administrators because they will not have to actively seek out water systems that serve overburdened communities and encourage them to participate in the application process on top of scoring applications and dispersing funds. If this is still overburdensome, then a portion of the thirty-one percent could be used to subcontract this work out in a way similar to how many states subcontract out technical assistance.[17]

It is important that in creating this sub-fund, the state requires the funding to be used toward water projects in disadvantaged communities that cannot undergo the application process on their own. In doing this, the state must create a well-considered definition of disadvantaged communities that fits the characteristics of need in that individual state. The Environmental Protection Agency’s Climate and Economic Justice Screening Tool provides a good starting point for developing this definition.[18] This tool uses factors such as poverty, median household income, proximity to wastewater discharge, language isolation, housing cost burden, and educational attainment; however, these are just a starting point and a state must create a list of factors specific to its need.[19] Importantly, race may be an important factor to consider in this definition to help historically underinvested communities receive the necessary funding. Additionally, using a portion of the thirty-one percent set aside to seek out low-capacity communities and develop and implement water projects collaboratively aligns with the Biden administration’s Justice40 Initiative.[20] Under this initiative, the Federal Government has made it a goal that forty percent of environmental-related Federal investments go to disadvantaged communities.[21]

In conclusion, communities that need SRF resources the most often cannot receive funding due to their lack of capacity to undergo the competitive grant application process. Providing technical assistance to aid these communities in the application process, while beneficial in theory, does not do enough to mediate the currently existing disparities in water accessibility. Eliminating the application process and devoting a portion of DWSRF set-asides to sub-funds used to seek out overburdened water systems to plan and implement water infrastructure projects collaboratively could be a more advantageous approach. Ultimately access to safe and clean water is indispensable to health and human dignity.[22] The solution may not be clear but using creativity to reshape state discretion in the distribution of SRFs is an important step toward achieving water equity.

[1] State Revolving Fund Advocacy Toolkit, River Network, https://www.rivernetwork.org/connect-learn/resources/state-revolving-fund-advocacy-toolkit/ (last visited Mar. 8, 2023).

[2] Id.

[3] Id.

[4] See Katy Hansen et al., Uncommitted State Revolving Funds, Nicholas Inst. for Env’t Pol’y solutions 1 (2022).

[5] Id. at 11.

[6] Id. at 12.

[7] Id. at 15.

[8] Id.

[9] Id.

[10] Id. at 12.

[11] Id. at 15 (“States may also use an additional 2 percent of their DWSRF capitalization grant for technical assistance to systems serving fewer than 10,000 people”).

[12] Katy Hansen et al., supra note 3, at 2.

[13] Analysis of the Use of Drinking Water State Revolving Fund Set-Asides: Building the Capacity of Drinking Water Systems, United States Environmental Protection Agency 1 (2015).

[14] Id. at 40.

[15] Id.

[16] Id.

[17] See id. at 5.

[18] See EJScreen: Environmental Justice Screening and Mapping Tool, United States Environmental Protection Agency (2023) https://www.epa.gov/ejscreen.

[19] Misbah Husain & Melissa K. Scanlan, Disadvantaged Communities, Water Justice & the Promise of the Infrastructure Investment and Jobs Act, 52 Seton Hall L. Rev. 1513, 1522 (2022).

[20] See Justice40 a Whole-of-Government Initiative, The White House, (2022) https://www.whitehouse.gov/environmentaljustice/justice40/.

[21] Id.

[22] OHCHR and the Rights to Water and Sanitation, United Nations Human Rights Office of the High Commissioner, https://www.ohchr.org/en/water-and-sanitation.

 

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17Feb

Will the Peace on the Korean Peninsula Act Really Bring Peace?

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By: Inyoung Park

Why is America involved in the Peace Treaty between South and North Korea? On June 25, 1950, the Korean War broke out when approximately 135,000 North Koreans, backed with support from China and the Soviet Union, stormed past the 38th parallel line that was dividing the Democratic South and the Communist-controlled North Korea.[1] At the time, President Harry Truman commanded “police action” by assembling international allies to help combat troops or medical support units.[2] On June 27, 1953, the armistice merely paused the war.[3] The signatories included the United States as well as North Korea and the United Nations.[4] Since then, South Korea has been backed by the United States, with nearly 30,000 U.S. troops present in South Korea.[5]

The United States has been involved with South Korea and the matters of North Korea since the beginning of the Korean War. Therefore, H.R. 3466, the Peace on the Korean Peninsula Act, is not the United States’ first involvement with the Koreas.[6]

The Act is divided into four sections: Section 1 includes the short title of the Act; Section 2 talks about the background information related to the need for the Act; Section 3 states humanitarian considerations for visiting North Korea and; Section 4 is a formal declaration that calls for an official end of the Korean War.[7] The Act urges for the “compelling humanitarian considerations” that will allow Korean-Americans to meet their relatives in North Korea by lifting travel restrictions between North Korean and U.S. nationals, formally ending the war.[8] However, are these ideals and languages sugarcoating the tragic reality that could result from the enactment of the Act?

The Act does not include any specific language on procedures to denuclearize North Korea. North Korea has continuously researched and tested its nuclear missiles.[9] On September 3, 2017, North Korea conducted its largest nuclear test with an explosive power of 100 to 370 kilotons. 100 kilotons have six times more power than the bomb dropped on Hiroshima in 1945.[10] North Korea has promised to suspend its nuclear testing numerous times, but the promise has routinely been broken.[11]

If the Act is passed, it can be used against the maintenance of the U.S. Army in South Korea. As the agreement formally declares the end of the war, the United States does not have any purpose in maintaining its troops in South Korea. However, if U.S. troops are removed from South Korea, South Korea could find itself in a similar situation to what happened in Afghanistan. After the withdrawal of the U.S. forces in Afghanistan, the government collapsed, and the Taliban took control of Kabul.[12] It is highly unlikely that there will be a sudden invasion of South Korea by North Korea, however. Yet, the withdrawal will weaken the security basis of South Korea and Northeast Asia and shift the foreign policy of the United States as maintenance of the troops in South Korea meant more than a mere alliance—it represented “the Nixon Doctrine, the end of the Cold War, and the global war on terrorism.”[13] Thus, U.S. troops should not be removed from South Korea without a concrete plan against denuclearization in North Korea. Otherwise, the Act will only help North Korea—and China backing North Korea—in spreading its ideology and power over South Korea and other countries without the United States’ involvement.

However, even if the Act includes specific language to enforce the complete denuclearization in the North, it is not likely to be kept. If the Act does bring an end to the war, talks of reunification might spark between North and South Korea, especially under South Korea’s current president, President Moon.

There are confrontations between progressives and conservatives in Korean politics. President Moon is of progressive power that supports the sunshine policy towards North Korea.[14] Unlike the conservative government that approached North Korea with military-based deterrence that prioritized denuclearization of North Korea and ensured that South Korea would only respond in kindness if North Korea does the same, the sunshine policy focuses on collaboration and cooperation with North Korea.[15] Therefore, based on this ideology, President Moon and other potential progressive governments are likely to propel the movement for reunification. However, in 2018, when President Moon and North Korean leader Kim Jong-un vowed peace in the Korean peninsula under the Panmunjom Declaration, and North Korea pledged a “complete denuclearization,” it was never kept.[16] Therefore, even if the Act included the “complete denuclearization” element and the North Korean leader signs it, there is still no guarantee of its promise being kept. The Act will merely be used as a force to push for one ideology after another, such as requesting the U.S. military to be removed from South Korea.

With vague and uncertain language in the Peace on the Korean Peninsula Act, which presents no viable solution toward the denuclearization of North Korea and its history of breaking promises, the Act has no positive benefit, except to North Korea and China. If the Act is enacted and provides a justification for the withdrawal of the U.S. army from South Korea, it will deteriorate the democratic value and security it stood for in Asia. Legislatures should not be signing the bill based on sugarcoated language that sounds too good to be true.

[1] Brad Lendon, Didn’t the Korean War End in 1953? The Short Answer Is No, CNN World (Dec. 20, 2021), https://www.cnn.com/2021/12/30/asia/korean-war-armistice-peace-explained-intl-hnk-ml/index.html.

[2] Id.

[3] Josh Smith, Explainer: S.Korea Sees Peace Declaration As Key to Restarting N.Korea Talks, Reuters (Oct. 27, 2021), https://www.reuters.com/world/asia-pacific/skorea-sees-peace-declaration-key-restarting-nkorea-talks-2021-10-27/.

[4] Id.

[5] William Gallo, How the Afghanistan Withdrawal Looks from South Korea, America’s Other ‘Forever War’, VOA (Aug. 20, 2021), https://www.voanews.com/a/usa_how-afghanistan-withdrawal-looks-south-korea-americas-other-forever-war/6209777.html.

[6] The Peace on the Korean Peninsula Act was introduced in the House by Representative Sherman on May 20, 2021. At this time, it has only been introduced in the House. Id.

[7] Peace on the Korean Peninsula Act, H.R. 3446, 117th Cong. (202122).

[8] Id.

[9] Reality Check, North Korea: What We Know About Its Missile And Nuclear Programm, BBC News (Jan. 28, 2021), https://www.bbc.com/news/world-asia-41174689.

[10] Choe Sang-Hun, North Korea’s Arsenal Has Grown Rapidly. Here’s What’s In It, N.Y. Times (Oct. 18, 2021), https://www.nytimes.com/article/north-korea-arsenal-nukes.html.

[11] Reality Check, supra note 9.

[12] Clint Work, Seoul Isn’t Kabul, Foreign Pol’y (Aug. 18, 2021), https://foreignpolicy.com/2021/08/18/south-korea-usa-troops-withdraw-kim-jong-un-moon-seoul-kabul/.

[13] Id.

[14] Chan-Min Roh, Four Years of Sunshine: Examining South Korea’s Policy of Reconciliation Toward North Korea Under the Moon Administration, Synergy (Mar. 30, 2021), https://utsynergyjournal.org/2021/03/30/four-years-of-sunshine-examining-south-koreas-policy-of-reconciliation-toward-north-korea-under-the-moon-administration/.

[15] Id.

[16] Ahn Sung-mi, Three Years After Historic Panmunjom Declaration, Two Koreas Remain Deadlocked, The Korea Herald (Apr. 26, 2021), http://www.koreaherald.com/view.php?ud=20210426000816.

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27Jan

The Pandemic is Not Over, but the Child Tax Credit Expansion Is.

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By: Joseph C. Johnson

The child tax credit, found in § 24 of the Internal Revenue Code, normally provides taxpayers with a credit that reduces their overall tax liability for a given taxable year.[1] This credit is applied per qualified child.[2] The amount of credit to be applied to the taxpayer’s tax liability is subject to a “phase-out” based on income—the value of the credit is reduced depending on how much the taxpayer’s income exceeds a certain threshold amount for that taxable year.[3]

The American Rescue Plan created significant, albeit temporary, changes to the child tax credit.[4] Beginning in July of 2021, the child tax credit became the means by which millions of American families received monthly payments to ease some of the financial pressure created by the COVID-19 pandemic.[5] These were advance monthly payments—as opposed to a lump sum upon filing taxes—that amounted to half of the total value due to the families under the child tax credit.[6]  These families must now claim the remaining half when filing taxes for 2021 to receive the entire amount to which they are due.[7]  In total, families can receive up to $3,600.00 for each child under the age of six years and up to $3,000.00 for each child between the ages of six years and seventeen years.[8] 

The first payment alone from this expansion of the child tax credit kept approximately three million children from poverty in the month of July in 2021.[9]  The July 2021 payment reached over fifty-nine million children, and reduced monthly child poverty from 15.8 percent to 11.9 percent.[10]  The number of children that benefited from the American Rescue Plan’s expanded child tax credit increased to sixty-one million in August of 2021.[11]  It is estimated that an additional two to three million children live in households that qualify to receive the child tax credit but for whom the Internal Revenue Service do not have relevant information to determine eligibility; thus, these households did not receive the payment.[12]  Households that received the child tax credit payments most often spent the funds “on basic household needs such as food and utilities.”[13] 

Notwithstanding the plummeting child poverty rates and the expansive number of families that benefitted from the advance payments, the final payment was sent in December of 2021.[14]  The child tax credit will return to $2,000.00 per child for the 2022 taxable year without additional intervention from Congress.[15]  Congress rejected to extend the increased child tax credit, and refused to extend the monthly payments as the means of delivering the credit to taxpayers, thereby limiting the number of payments to only six.[16]  Accordingly, many families are struggling to accommodate a smaller monthly budget,[17] and monthly child poverty is “expected to be at its highest level since Biden took office.”[18]

President Biden’s “Build Back Better” agenda, which was not passed by Congress in December of 2021, proposed extending the expanded child tax credit system that was in use from July through December of 2021.[19]  However, despite opposition from Republicans and Democratic Senator Joe Manchin of West Virginia,[20] several Democratic lawmakers have voiced continuing dedication to the agenda.[21]  President Biden has suggested that separating the agenda into smaller chunks of legislation may prove to be more successful,[22] and House of Representatives Ways and Means Chair Richard Neal has conceded that there is “room here to negotiate,”[23] so all hope need not be lost in once again seeing advance child tax credit payments. 

The vast number of taxpayers who were eligible to receive the expanded child tax credit in the second half of 2021 illustrates the widespread need for additional support while the COVID-19 pandemic continues.  However, the failure to extend the payments into 2022 raises a concerning question: if keeping millions of children out of poverty while they suffer through a pandemic is not enough to motivate Congress to maintain the expanded payments, what will be?

[1] 26 U.S.C. § 24(a).

[2] Id.

[3] 26 U.S.C. § 24(b)(1).

[4] The American Rescue Plan, The White House, https://www.whitehouse.gov/wp-content/uploads/2021/03/American-Rescue-Plan-Fact-Sheet.pdf (last visited Jan. 24, 2022).

[5] Scott Horsely, How Biden’s Plan Could Help Reshape The Finances Of American Families, NPR (Mar. 13, 2021, 5:00 AM), https://www.npr.org/2021/03/13/976554398/how-bidens-plan-could-help-reshape-the-finances-of-american-families.

[6] Advance Child Tax Credit Payments in 2021, IRS, https://www.irs.gov/credits-deductions/advance-child-tax-credit-payments-in-2021 (last updated Jan. 11, 2022).

[7] Id.

[8] See 26 U.S.C. § 24(i)(3).  Section 24(i)(3) reflects the 2021 amounts, which are increased from the initial $1,000.00 value seen in 26 U.S.C. § 24(a), and further increased above the amount of $2,000.00 found in 26 U.S.C. § 24(h)(2) as a special rule for years 2018 through 2025.

[9] Zachary Parolin et al., Monthly Poverty Rates among Children after the Expansion of the Child Tax Credit, Poverty & Soc. Pol’y Brief, Aug. 20, 2021 at 1, 1.

[10] Id.

[11] Greg Iacurci, Child tax credit lifted 3 million kids from poverty in July, CNBC (Aug. 25, 2021 1:35 PM), https://www.cnbc.com/2021/08/25/child-tax-credit-lifted-3-million-kids-from-poverty-in-july.html.

[12] Id.

[13] Catherine Rampell, A eulogy for Biden’s expanded child tax credit. Maybe., Wash. Post (Jan. 20, 2022, 6:01 PM), https://www.washingtonpost.com/opinions/2022/01/20/eulogy-bidens-expanded-child-tax-credit-maybe/.

[14] Katie Teague & Peter Butler, Child tax credit: How to get your remaining money in 2022, CNET (Jan. 21, 2022, 1:15 PM), https://www.cnet.com/personal-finance/child-tax-credit-how-to-get-your-remaining-money-in-2022/.

[15] Lance Lambert, The monthly child tax credit payments are done—here’s what will replace it, Fortune (Jan. 18, 2022, 7:00 AM), https://fortune.com/2022/01/18/monthly-child-tax-credit-payments-end-build-back-better-manchin/.

[16] Id.

[17] Deepa Shivaram, Families are in distress after the first month without the expanded child tax credit, NPR (Jan. 21, 2022, 5:01 AM), https://www.npr.org/2022/01/21/1074413273/end-expanded-child-tax-credit-families-effects.

[18] Rampell, supra note 13.

[19] Shivaram, supra note 17.

[20] Id.

[21] Brian Faler, Some Democrats not ready to give up on child credit, Politico (Jan. 20, 2022, 2:16 PM), https://www.politico.com/news/2022/01/20/democrats-senate-child-tax-credit-527499.

[22] Shivaram, supra note 17.

[23] Faler, supra note 21.

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20Jan

Is Osha Overstepping? The Vaccine Mandate That Perplexed the Circuit Courts Offered the Supreme Court a Rare Opportunity to Clarify OSHA’s Emergency Rulemaking Authority

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By: Tanner Henson 

In 1970, Congress enacted the Occupational Safety and Health Act (“OSH Act” or “the Act”), a sweeping piece of legislation, aimed at “assur[ing] so far as possible every working man and woman in the Nation safe and healthful working conditions[.]”[1] To enforce the new legislation, Congress created a new government agency, the Occupational Safety and Health Administration (“OSHA”),[2] under the authority of the Secretary of Labor.[3]

Under the OSH Act, OSHA primarily seeks to protect the American workforce by promulgating specific standards through its formal rulemaking process, either “on its own initiative or in response to petitions submitted to the agency by various government agencies, the public, or employer and employee groups.”[4] This is traditionally a time-consuming process. Between 1981 and 2010, the Congressional Research Service found that on average, ninety-three months elapsed between OSHA beginning formal consideration of a specific standard and its promulgation.[5] The same study further indicated that this average is generous, as it did not include time spent preliminary to formal proposal of the rule, which often includes years “developing the idea for the standard and meeting with stakeholders.” [6] It also did not include the time spent in judicial review.[7] When these time periods were included, the Congressional Research Service found that it was not uncommon for 138 months to elapse between the inception of the idea behind the specific standard and its enactment.[8]

Given this onerous process, OSHA cannot issue specific standards for every hazard the working public might encounter. Aware of this reality, the drafters of the Act included a useful catchall­—the general duty clause—which provides that at a minimum, each employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees[.]”[9] However, to establish a general duty clause violation, the Secretary of Labor must establish that “(1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) feasible and effective means existed to materially reduce the hazard.”[10] While the general duty clause serves a necessary function—it allows OSHA to hold businesses accountable for harms caused by known hazards not covered by a specific standard—in practice, the Secretary is most often successful in proving these elements where death or serious injury has already occurred,[11] which hampers its effectiveness.

As the formal rulemaking process is time-consuming,[12] and the general duty clause lends itself to retroactive applications,[13] the Congressional drafters of the OSH Act included a seldom mentioned alternative, which allows the Secretary of Labor to promulgate an Emergency Temporary Standard (“ETS”) with immediate effect, “if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”[14] However, in its fifty year history, OSHA has issued just ten emergency temporary standards, six of which have been challenged in the courts, with only one surviving judicial review.[15] In fact, until November, OSHA had not issued an ETS since 1983,[16] when the Fifth Circuit invalidated the administration’s ETS seeking to decrease the acceptable levels of asbestos exposure in the workplace.[17]

On November 5, 2021, in response to an order from President Biden,[18] OSHA did what it had not done in nearly forty years;[19] it promulgated an ETS mandating that employers with more than 100 employees either require employees to undergo weekly COVID-19 testing or become fully vaccinated by January 4, 2022 (“ the mandate”).[20] However, two days after OSHA enacted its ETS, the Fifth Circuit stayed the mandate’s enforcement “pending briefing and expedited judicial review.”[21] After review, the court reaffirmed its initial stay,[22] halting enforcement across the nation, holding that the petitioners were likely to succeed on the merits as the OSH Act did not confer on OSHA constitutional authority “to make sweeping pronouncements on matters of public health.”[23] The court wrote further, entertaining what it called “the dubious assumption that the mandate does pass constitutional muster[,]”[24] noting that the mandate was improperly tailored.[25] Specifically, the court wrote that the mandate was “both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse)[,]”[26] as well as underinclusive, as the mandate purports to “save employees with 99 or more coworkers from a ‘grave danger’ in the workplace, while making no attempt to shield employees with 98 or fewer coworkers form the very same threat.”[27] The court further questioned whether such an ETS is needed, as the “entire globe” has endured the “emergency” for nearly two years.[28]

Following the Fifth Circuit’s ruling on November 16, “the Judicial Panel on Multidistrict Litigation consolidated the cases challenging the ETS.”[29] When this occurred, the panel conducted a random lottery involving all U.S. Courts of Appeal and transferred the consolidated case to the Sixth Circuit,[30] where a divided panel reinstated the mandate,[31] holding “that OSHA’s authority includes protection against infectious diseases . . . .”[32] The court further stated that “it makes sense that OSHA’s authority contemplates the use of medical exams and vaccinations as tools in its arsenal.”[33] The court took particular issue with the Fifth Circuit’s skepticism regarding the emergency, providing that “it is difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace.”[34]

After the Sixth Circuit’s ruling, it appeared briefly that the mandate would go into effect on January 10;[35] however, on December 22, the Supreme Court announced that it would hold a special session on January 7, 2022 to hear arguments in a challenge to the mandate.[36] During those arguments, the Court’s three liberals signaled support for the mandate, with Justice Breyer stating “[t]here are 750,000 people who got this yesterday. Hospitals are full to overflowing. There is a problem. It seems to me that every minute these things are not in effect, thousands more people are getting this disease[.]”[37] However, given the Court’s current conservative majority, for the liberal justices to prevail, the vote of Chief Justice Roberts is of practical necessity.[38] During arguments, the Chief Justice signaled his ultimate disapproval of the mandate in a troubling back-and-forth for its proponents, stating specially, “[i]t sounds like the sort of thing that states will be responding to or should be or—and that Congress should be responding to or should be, rather than agency by agency, the federal government, the executive branch, acting alone[.]”[39]

Given the tenor of oral argument, it came as little surprise that on January 13, the Supreme Court reversed the Sixth Circuit, granting the petitioners’ application to stay enforcement of the mandate.[40] The Court found that the petitioners were likely to succeed on the merits of their case, agreeing with the Fifth Circuit and characterizing the mandate as a “blunt instrument” that “draws no distinctions based on industry or risk of exposure to COVID-19.”[41] The Court, however, also found “that the Secretary lacked authority to impose the mandate.”[42] Noting that OSHA can only exercise power that Congress provides by statute, the Court analyzed the language of the ETS statute and concluded that it empowered OSHA “to set workplace safety standards, not broad public health measures.”[43] The Court further took issue with the characterization of COVID as a work-related danger, noting that “[a]lthough COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.”[44] The Court reasoned, that the risk presented by COVID-19 is little different than “the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazard of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”[45]

Whatever the Courts ultimate ruling on the merits, its opinion granting petitioners’ request for an emergency stay both clarifies the meaning of the terms “workplace” and “occupational hazard,” as they appear in the statute, as well as provides a rare glimpse into the confines of OSHA’s emergency rulemaking authority.

[1] 29 U.S.C. § 651(b).

[2] About OSHA, https://www.osha.gov/aboutosha (last visited Jan. 13, 2022).

[3] 29 U.S.C. § 652(1).

[4] Scott D. Szymendera, Cong. Rsch. Serv., R46288, Occupational Safety and Health Administration (OSHA): COVID-19 Emergency Temporary Standards (ETS) on Health Care Employment and Vaccinations and Testing for Large Employers 1 (2022).

[5] Id. at 3.

[6] Id.

[7] Id.

[8] Id.

[9] 29 U.S.C. § 654.

[10] Michael A. Logan, Regulation of Workplace Violence Under OSHA’s “General Duty” Clause, Kane Russell Coleman Logan (May 22, 2019), https://www.krcl.com/insights/regulation-of-workplace-violence-under-oshas-general-duty-clause.

[11] See Opinion at 22, Secretary of Labor v. Integra Health Management, Inc., (2019) (No. 13–1124), https://www.chamberlitigation.com/sites/default/files/cases/files/19191919/Opinion%20–%20Secretary%20of%20Labor%20v.%20Integra%20Health%20Management%2C%20Inc.%20%28Occupational%20Safety%20and%20Health%20%28OSH%29%20Review%20Commission%29_0.PDF (finding a violation of the general duty clause where a healthcare service coordinator was stabbed to death by a mentally unstable client). 

[12] See supra notes 4–8.

[13] See supra notes 9–11.

[14] 29 U.S.C. § 655(c)(1).

[15] BST Holdings, LLC v. Occupational Safety and Health Admin., U.S. Dep’t of Lab., 17 F.4th 604, 609 (5th Cir. 2021).

[16] Syzmendera, supra note 4, at 1.

[17] Asbestos Information Ass’n/North Am. v. Occupational Safety and Health Admin., 727 F.2d 415, 425–27 (5th Cir. 1984).

[18] Press Release, The White House, New OSHA and CMS Rules Mean Two-Thirds of All Workers Now Covered by Vaccination Rules (Nov. 4, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/04/fact-sheet-biden-administration-announces-details-of-two-major-vaccination-policies/.

[19] See supra note 16.

[20] 29 C.F.R. § 1910.501(m) (2021).

[21] BST Holdings, 17 F.4th at 609.

[22] Id.

[23] Id. at 611 (citing Ala. Ass’n of Realtors v. Dep’t of Health and Human Servs., 141 S. Ct. 2485, 2488 (2021)).

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Sixth Circuit Lifts Stay of OSHA Emergency Vaccine Mandate For Large Employers, McGuireWoods (Dec. 19, 2021), https://www.mcguirewoods.com/client-resources/Alerts/2021/12/sixth-circuit-lifts-stay-of-osha-emergency-vaccine-mandate-for-large-employers.

[30] Id.

[31] In re. MCP No. 165, No. 21–4027, slip op. at 37 (6th Cir. Dec. 17, 2021).

[32] Id. at 36.

[33] Id. at 13–14.

[34] Id. at 25.

[35] Lisa Nagele-Piazza, OSHA’s Vaccine-Or-Testing Rule is Back, Unless Supreme Court Says Otherwise, SHRM (Dec. 20, 2021), https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/sixth-circuit-osha-ets.aspx.

[36] Stuart M. Gerson & Traycee E. Klein, Supreme Court Grants Rare Hearing On Stays In Vaccine Mandate Cases, Ntl. L. Rev. (Dec. 29, 2021), https://www.natlawreview.com/article/supreme-court-grants-rare-hearing-stays-vaccine-mandate-cases.

[37] Megan Leonhardt, The Supreme Court Just Signaled It Could Block Biden’s Nationwide Vaccine Mandate, Fortune (Jan. 7, 2020, 4:43 PM), https://fortune.com/2022/01/07/supreme-court-biden-vaccine-mandate/.

[38] See Amelia Thomson-DeVeaux, Roberts is the New Swing Justice. That Doesn’t Mean He’s Becoming More Liberal, FiveThirtyEight (July 16, 2020), https://fivethirtyeight.com/features/roberts-is-the-new-swing-justice-that-doesnt-mean-hes-becoming-more-liberal/.

[39] Amy Davidson Sorkin, Vaccine Mandates Have a Bad Day at the Supreme Court, Atl. (Jan. 8, 2022), https://www.newyorker.com/news/daily-comment/vaccine-mandates-have-a-bad-day-at-the-supreme-court.

[40] Nat’l Fed’n of Indep. Bus. v. Dept. of Lab, Occupational Safety and Health Admin., Nos. 21A244 and 21A247, slip op. at 9 (U.S. Jan. 13, 2022).

[41] Id. at 3.

[42] Id. at 5.

[43] Id. at 6.

[44] Id.

[45] Id. at 6–7.

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5Oct

Current Effort to Combat Potential Danger of Quantum Computing

Categories: Current Issues Blog
Comments Off on Current Effort to Combat Potential Danger of Quantum Computing

By: Inyoung Park

Many companies, large or start-up, are recognizing the potential of quantum technology.[1] Quantum technology is based on quantum mechanics that study the movements of subatomic particles.[2] Unlike other particles that follow Newtonian physics, the quantum system differs in that the particles can be in superposition and exhibit entanglement, for example.[3] Superposition means that objects can “exist in multiple states at the same time.”[4] whereas entanglement means that two particles replicate each other’s moves even when they are apart.[5]

Quantum computing is using quantum technology to reach a fast speed.[6] Ordinary computers today convert information into binary digits, also called bits.[7] Each bit only has two possible values: zero and one.[8] However, a combination of these binary digits allow computer processing text documents to provide a web-based service.[9] Like ordinary computers, quantum computers translate information into bits called qubits.[10] The difference is that, unlike normal bits, qubits do not have to choose either zero or one:[11] they can also be “in a state where it is both [values] at the same time” based on superposition.[12] This unique property of qubits allows quantum computers to be faster, store more information, and work multiple calculations simultaneously.[13]

Despite the benefits advanced technology quantum computing can bring, it is not without its faults.[14] It, for example, still requires a way for qubits to operate in higher temperatures, and an ability to withstand and operate normally even after electrical disturbance.[15] When quantum computers are fully developed in the future, it is expected to be powerful enough to break through most of the encryption present today.[16] Current encryption systems rely on large prime numbers since today’s computers have a hard time factoring these large numbers to break the encryption.[17] However, quantum computers can, potentially, break them all and jeopardize the security of digital data.[18] For this reason, the legal system has to adapt to the changing technology system to protect digital information.

Regulations such as Article 5 of the European Union’s General Protection Regulation (“GDPR”) and the Cybersecurity Act require personal data to be stored with appropriate security and protection against unauthorized users.[19] However, there is new legislation available that would prevent victims of quantum computing from being placed at fault at times where new technology and the COVID-19 pandemic increased their risk of cybersecurity.[20]

At least 45 states and Puerto Rico have introduced more than 250 bills or resolutions dealing with cybersecurity.[21] Legislative activity includes measures “requiring government agencies to implement cybersecurity training, to set up and follow formal security policies, standards, and practices, and to plan for and test how to respond to a security incident.”[22] They also mentioned creating task forces specifically to study and advise on matters of cybersecurity issues.[23]

Senators also have drafted a bill to require public and private entities to report cybersecurity violations within 24 hours of a breach to the government.[24] President Biden stated that to ensure cybersecurity, the private sector must “partner with the Federal Government to foster a more secure cyberspace.”[25] Since there is no single federal standard regarding cybersecurity breach notification,[26] the passage of the bill can provide a platform for a unified procedure in dealing with the problem.

There is an effort to also strengthen the connection between the national cybersecurity chain with state and local governments.[27] President Biden has stressed providing significant investments to defend against cybersecurity, rather than incremental improvements.[28] State and local governments generally do not have the same resources to dedicate to cybersecurity protection as private companies and federal agencies, as these groups typically have more money to protect their networks against cybersecurity. However, Congress recently provided $360 billion to states to increase their spending on cybersecurity.[29] But the amount can increase under the new legislation that is getting drafted, which aims to provide as much as $500 million to states and local governments annually for them to continuously monitor networks.[30]

President Biden has responded with an executive order on “Improving the Nation’s Cybersecurity” to keep pace with the ever-changing technology.[31] It stated that “the Federal Government must adopt security best practices; advance toward Zero Trust Architecture; accelerate movement to secure cloud services; . . . and invest in both technology and personnel to match these modernization goals.”[32] Since the drafting of legislation and execution of the executive order all occurred in early 2021, more time is needed to see the outcomes and effects on cybersecurity.

In 2018, Arvind Krishna, a director of IBM Research, warned that “anyone that wants to make sure that their data is protected for longer than 10 years should move to alternate forms of encryption now.”[33] However, there wasn’t known legislation or policies on the requirement of minimum or maximum encryption strength in the past.[34]

Today, there are studies to find strong encryption methods to prepare for quantum computing. For example, encryption method can increase the key size and expand the space that the system must search through to find the key to unlock the encryption.[35] Researching and transferring the computing program to a new, safe encryption method will take a lot of money because the process is large-scaled and time consuming.[36] The United States government has sought to find quantum-safe encryption methods for government use through the National Security Agency (NSA) and the National Institute of Standards and Technology (NIST).[37] NIST also developed quantum cryptography standards private sectors can adopt to develop quantum-safe encryption.[38]

Quantum Computing can provide many benefits to society, but it can do so only if the legal system is equipped to provide cybersecurity. The legislative and executive branches recognize the fast-growing problems quantum computing can impose on cybersecurity and are actively suggesting ways to create protective measures against cyber danger, finance and the protection of encryption. Cybersecurity matters for everyone. People should follow to see if quantum computing can destroy encryption method and how law can develop to protect cybersecurity in danger.

[1] John Preskill, Quantum Computing in the NISQ Era and Beyond, 2 Quantum 79, 79 (2018).

[2] Jeanne Whalen, Seven Basic Questions about Quantum Technology, Answered, Wash. Post: Bus. (Aug. 18, 2019), https://www.washingtonpost.com/business/2019/08/18/seven-basic-questions-about-quantum-technology-answered/.

[3] Id.

[4] Id.

[5] Kenneth Macdonald, Scientists Shed New Light on ‘Entangled’ Particles, BBC News (Aug. 5, 2020), https://www.bbc.com/news/uk-scotland-53650369

[6] Schohini Ghose, Are You Ready for the Quantum Computing Revolution?, Harv. Bus. Rev. (Sept. 17, 2020), https://hbr.org/2020/09/are-you-ready-for-the-quantum-computing-revolution.

[7] Nat’l Acads. of Scis., Eng’g, and Med. et al., Quantum Computing: Progress and Prospects 24 (Emily Grumbling and Mark Horowitz eds., 2019), https://www.nap.edu/read/25196/chapter/4.

[8] Id.

[9] Id.

[10] Shannon Flynn, What is Quantum Computing and How is it Disrupting Law Firms?, Law Tech. Today (Dec. 15, 2020), https://www.lawtechnologytoday.org/2020/12/what-is-quantum-computing-and-how-is-it-disrupting-law-firms/.

[11] Id.

[12] Nat’l Acads. of Scis., Eng’g, and Med. et al, supra note 6, at 24.

[13] Flynn, supra note 7.

[14] Mauritz Kop, Regulating Transformative Technology in the Quantum Age: Intellectual Property, Standardization & Sustainable Innovation, 2 Stan. L. Sch. 1, 6 (2020).

[15] Id. at 6–7.

[16] Henry Kenyon, CQ Roll Call, Quantum Computing: Developing Secure, Un-Hackable Networks, Westlaw (Jan. 17, 2018), https://1.next.westlaw.com/Document/I4aee8a9dfbd211e79bf099c0ee06c731/View/FullText.html?navigationPath=%2FFoldering%2Fv3%2Fparki20%3D40wfu.edu%2Fhistory%2Fitems%2FdocumentNavigation%2F4d436bad-0277-47da-81d3-d67f4fe6176c%2FZ7s7PRgW%7CQFWun%609Lv2VkEXF5JqsOspP045ZMGM5tHL%60XO0PmgprzEHpBoPSQRMto21rXA3TKIXiY0c0hlUeHPZ%7CesBAm1oP&listSource=Foldering&list=historyDocuments&rank=5&sessionScopeId=3b9475abdd71b63cb023a62ee23622f244c6095becfe973806cd45be8767c55b&originationContext=MyResearchHistoryAll&transitionType=MyResearchHistoryItem&contextData=%28oc.Default%29&VR=3.0&RS=cblt1.0..

[17] Kenneth Chang, 2 Win Abel Prize for Work That Bridged Math and Computer Science, N.Y. Times (May 22, 2021), https://www.nytimes.com/2021/03/17/science/abel-prize-mathematics.html.

[18] Id.

[19] Information Commissioner’s Office, The Principles, ico., https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/principles/ (last visited Sept. 26, 2021); Jeff Kosseff, Defining Cybersecurity Law, 103 Iowa L. Rev. 985 (2018), https://ilr.law.uiowa.edu/print/volume-103-issue-3/defining-cybersecurity-law/.

[20] NCSL, Cybersecurity Legislation 2021, Nat’l Conf. of State Legislatures, https://www.ncsl.org/research/telecommunications-and-information-technology/cybersecurity-legislation-2021.aspx.

[21] Id.

[22] Id.

[23] Id.

[24] Brian Fung & Alex Marquardt, Senators Draft Bill that Would Require Many Entities to Report Cyber Breaches Within 24 Hours, CNN Pols. (June 17, 2021), https://www.cnn.com/2021/06/16/politics/bill-report-cyber-breach-24-hours/index.html.

[25] The White House, Executive Order on Improving the Nation’s Cybersecurity, Briefing Room, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/05/12/executive-order-on-improving-the-nations-cybersecurity/.

[26] Fung & Marquardt, supra note 21.

[27] Gopal Ratnam, Bipartisan House Bill Would Give States $500M for Cybersecurity, Gov’t Tech. (May 12, 2021), https://www.govtech.com/security/bipartisan-house-bill-would-give-states-500m-for-cybersecurity.

[28] The White House, supra note 22.

[29] Id.

[30] Id.

[31] The White House, supra note 22.

[32] Id.

[33] Tom Foremski, IBM Warns of Instant Breaking of Encryption by Quantum Computers: ‘Move Your Data Today,’ ZDNet (May 18, 2018), https://www.zdnet.com/article/ibm-warns-of-instant-breaking-of-encryption-by-quantum-computers-move-your-data-today/. 

[34] World Map of Encryption Laws and Policies, Glob. Partners Digit., https://www.gp-digital.org/world-map-of-encryption/ (last visited Sept. 26, 2021).

[35] Implications of Quantum Computing for Encryption Policy, Carnegie Endowment for Int’l Peace 6, https://carnegieendowment.org/2019/04/25/implications-of-quantum-computing-for-encryption-policy-pub-78985 (last visited Sept. 26, 2021).

[36] Id.

[37] Id. at 7.

[38] Id.

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