Regulatory and Legal Reform

In its Sackett v. EPA ruling yesterday, the Supreme Court handed a victory to congressional Republicans and others who believe the Biden administration’s revised Waters of the United States rule is overly broad, according to E&E News’ Greenwire (subscription).

What’s going on: By unanimous vote, “the court found that EPA and the Army Corps of Engineers wrongfully claimed oversight of the wetland on the Sacketts’ property—located about 300 feet from Idaho’s Priest Lake—and that federal courts had erred in affirming the agencies’ jurisdiction.”

• “The ruling could complicate the Biden administration’s legal defense of its new definition of which wetlands and streams qualify as ‘waters of the U.S.,’ or WOTUS, subject to Clean Water Act permitting.”
• The Sacketts have been prohibited from building on their property for more than 15 years because of the wetlands designation and oversight claims.

Why it’s important: The decision—in which “[t]he court said the EPA can only assert jurisdiction over wetlands that have continuous surface connection to navigable waters, rejecting a more expansive view proposed by the EPA,” according to The Wall Street Journal (subscription)—will give much-needed regulatory certainty to manufacturers, which have been caught in limbo over the unclear and changing WOTUS definition.

The NAM says: The court’s ruling “put[s] us on a path to regulatory certainty for manufacturers across the country,” NAM Vice President of Energy and Resources Policy Brandon Farris said.

• “This case demonstrates yet again why manufacturers and our economy need a sensible Waters of the United States proposal that provides clarity and certainty and allows the industry to continue leading the way on environmental protection. The EPA should heed the court’s ruling and revise its latest WOTUS proposal.”

Washington, D.C. – Following the U.S. Supreme Court’s decision in Sackett vs. Environmental Protection Agency, National Association of Manufacturers Vice President of Energy and Resources Policy Brandon Farris released the following statement:

“The Supreme Court’s decision today will help put us on a path to regulatory certainty for manufacturers across the country as all the justices agreed that the EPA had overstepped its authority under the Clean Water Act. Manufacturers are committed to keeping our waters clean and demonstrating environmental stewardship, but Clean Water Act enforcement has been rife with ambiguities and inconsistencies, often allowing the EPA to overreach and attempt to regulate water—and even dry land—that is far beyond the scope of the law. This case demonstrates yet again why manufacturers and our economy need a sensible Waters of the United States proposal that provides clarity and certainty and allows the industry to continue leading the way on environmental protection. The EPA should heed the court’s ruling and revise its latest WOTUS proposal.”

Background:

Previously, the NAM submitted multiple sets of comments regarding the 2015 WOTUS rule to better inform policymakers. In addition, the NAM supported the 2017 executive order instructing the EPA to rescind the rule, and the NAM Legal Center had been in active litigation against the rule starting in 2015. The legal battle included a unanimous victory for the NAM at the U.S. Supreme Court on a key procedural issue, and in 2019, federal judges invalidated the rule.

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The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs nearly 13 million men and women, contributes $2.90 trillion to the U.S. economy annually and accounts for 55% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org.

Activist shareholders from across the ideological spectrum have increasingly influenced public companies’ proxy ballots, and the Securities and Exchange Commission has unlawfully become their willing partner. That’s why the NAM has moved to intervene in a court case on the matter.

What’s going on: The NAM yesterday filed a motion to intervene in a case challenging the SEC’s authority to compel manufacturers to use their proxy ballots to speak about divisive social and political issues that are unrelated to a company’s business or long-term value.

• If granted intervenor status, the NAM will argue that the SEC’s rules requiring companies to include activist proposals on the proxy ballot violate federal securities law and the First Amendment.

The background: An activist group that holds shares in Kroger Co. sought a shareholder vote on a proposal to have the grocery chain issue a public report concerning its equal opportunity employment policy.

• Kroger sought permission from the SEC to exclude the proposal from its proxy ballot, which the SEC granted. The group has sued the SEC, accusing the agency of acting in an inconsistent and politically motivated manner.

Why it’s important: Though the SEC rejected this proposal, the agency often requires companies to publish shareholder proposals it deems to have “broad societal impact.”

• The NAM’s motion to intervene argues that the SEC’s requirement that companies publish and respond to these proposals is a violation of the First Amendment’s prohibition on government-compelled speech.
• Furthermore, federal securities law does not permit the SEC to dictate the content of company proxy statements, so the agency’s politicization of corporate governance has unlawfully federalized issues that have traditionally been governed under state corporate law.

Unnecessary—and increasing: Forcing manufacturers to take political positions on their proxy ballots drives up costs for the companies and draws needless and unwanted controversy, the NAM says. Yet, the number of activist proposals on proxy ballots is only growing.

• “In total, 682 shareholder proposals were filed for annual meetings being held through May 31,” The Wall Street Journal (subscription) reported.

How we got here: The NAM has been urging the SEC to prioritize the needs of long-term shareholders over activists’ agendas for many years.

• The NAM opposed the SEC’s guidance requiring companies to include most environmental and social proposals on their proxy ballots.
• It also urged the agency not to move forward with a proposed rule limiting companies’ ability to exclude activist proposals.

The last word: “The corporate proxy ballot is not the appropriate venue for policy decisions better made by America’s elected representatives, and manufacturers are regularly caught in the middle as activists on the left and the right bring fights from the political arena into the boardroom,” said NAM Chief Legal Officer Linda Kelly.

• “The NAM Legal Center is standing up for manufacturers to ensure they can focus on growing their businesses, driving economic expansion and job creation and creating value for shareholders.”

Activist shareholders from across the ideological spectrum have increasingly influenced public companies’ proxy ballots, and the Securities and Exchange Commission has unlawfully become their willing partner. That’s why the NAM has moved to intervene in a court case on the matter.

What’s going on: The NAM yesterday filed a motion to intervene in a case challenging the SEC’s authority to compel manufacturers to use their proxy ballots to speak about divisive social and political issues that are unrelated to a company’s business or long-term value.

• If granted intervenor status, the NAM will argue that the SEC’s rules requiring companies to include activist proposals on the proxy ballot violate federal securities law and the First Amendment.

The background: An activist group that holds shares in Kroger Co. sought a shareholder vote on a proposal to have the grocery chain issue a public report concerning its equal opportunity employment policy.

• Kroger sought permission from the SEC to exclude the proposal from its proxy ballot, which the SEC granted. The group has sued the SEC, accusing the agency of acting in an inconsistent and politically motivated manner.

Why it’s important: Though the SEC rejected this proposal, the agency often requires companies to publish shareholder proposals it deems to have “broad societal impact.”

• The NAM’s motion to intervene argues that the SEC’s requirement that companies publish and respond to these proposals is a violation of the First Amendment’s prohibition on government-compelled speech.
• Furthermore, federal securities law does not permit the SEC to dictate the content of company proxy statements, so the agency’s politicization of corporate governance has unlawfully federalized issues that have traditionally been governed under state corporate law.

Unnecessary—and increasing: Forcing manufacturers to take political positions on their proxy ballots drives up costs for the companies and draws needless and unwanted controversy, the NAM says. Yet, the number of activist proposals on proxy ballots is only growing.

• “In total, 682 shareholder proposals were filed for annual meetings being held through May 31,” The Wall Street Journal (subscription) reported.

How we got here: The NAM has been urging the SEC to prioritize the needs of long-term shareholders over activists’ agendas for many years.

• The NAM opposed the SEC’s guidance requiring companies to include most environmental and social proposals on their proxy ballots.
• It also urged the agency not to move forward with a proposed rule limiting companies’ ability to exclude activist proposals.

The last word: “The corporate proxy ballot is not the appropriate venue for policy decisions better made by America’s elected representatives, and manufacturers are regularly caught in the middle as activists on the left and the right bring fights from the political arena into the boardroom,” said NAM Chief Legal Officer Linda Kelly.

• “The NAM Legal Center is standing up for manufacturers to ensure they can focus on growing their businesses, driving economic expansion and job creation and creating value for shareholders.”

​​​​​​​NAM in the news: POLITICO (subscription) and Bloomberg (subscription) covered the NAM’s legal efforts.

Washington, D.C. – Today, the National Association of Manufacturers filed a motion to intervene in National Center for Public Policy Research v. SEC, a case about the Securities and Exchange Commission’s authority to dictate the content of public company proxy ballots and the topics on which shareholders are required to cast votes. If granted intervenor status, the NAM will argue that the SEC’s rules requiring companies to include activist proposals on the proxy ballot violate federal securities law and the First Amendment. Following the filing of the motion to intervene, NAM Chief Legal Officer Linda Kelly released the following statement:

“Manufacturers are facing an onslaught of activists seeking to hijack the proxy ballot to advance narrow political agendas, and the SEC has become a willing partner in the effort. The corporate proxy ballot is not the appropriate venue for policy decisions better made by America’s elected representatives, and manufacturers are regularly caught in the middle as activists on the left and the right bring fights from the political arena into the boardroom. The NAM Legal Center is standing up for manufacturers to ensure they can focus on growing their businesses, driving economic expansion and job creation and creating value for shareholders.”

Background:

• Under SEC Rule 14a-8, public companies are required to include most shareholder proposals on their proxy ballot—proposals that in recent years have skewed increasingly toward social or political topics unrelated from a company’s business and its long-term value.
• The SEC evaluates company requests to exclude certain proposals from the ballot and increasingly requires companies to include and take a position on these proposals. For example, the NAM strongly opposed recent SEC guidance preventing companies from excluding proposals on environmental, social and governance topics of “broad societal impact”—irrespective of whether the proposal has any connection to the company’s operations.
• As intervenor in National Center for Public Policy Research v. SEC, the NAM would argue that the SEC cannot compel corporate speech, in violation of the First Amendment and federal securities laws, by forcing companies to include activist proposals on their proxy ballots.

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The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs nearly 13 million men and women, contributes $2.90 trillion to the U.S. economy annually and accounts for 55% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org.

Update: The National Association of Manufacturers has called on congressional leadership to support and advance legislation aimed at reforming the pharmacy benefit manager market in a later dated November 7th. Click here to read the letter. Click here to take action.

Pharmacy benefit managers—companies that were first established to manage the cost of prescription drugs—are contributing to soaring health care costs and driving up the price of medications. These entities cannot go unchecked, and Congress must act, an NAM ad campaign launched Thursday is advocating.

What’s going on: The campaign, which includes both TV and digital ads, calls out PBMs—“middlemen owned by large health insurers”—for pocketing sizeable discounts from drug manufacturers rather than passing on the discounts or rebates to workers or employers.

• “America’s manufacturing workforce has struggled with skyrocketing health care costs driven by insurer-owned PBM middlemen for far too long,” said NAM President and CEO Jay Timmons.
• “Manufacturers are committed to providing quality health care benefits to our employees, so we need reforms to stop insurer-owned PBMs from keeping discounts and driving up prescription drug costs.”

Why it’s important: PBMs emerged in the late 1960s as a way of helping insurance companies and employers contain spending on prescription medications—but their business model has evolved significantly in the past half-century.

• Now just a few PBMs—subsidiaries of bigger health care firms—control up to 89% of the prescription drug market and operate with limited federal oversight.
• And they exert even more control in the industry by steering business toward specific pharmacy networks, frequently ones owned by their parent companies.

Congressional moves: Congress is considering various legislative solutions to address PBM rebate, fee and payment structures.

The last word: “Manufacturers support reforms to the PBM model that increase transparency, ensure pharmaceutical savings are passed from the PBM to workers and plan sponsors and delink PBM compensation from the list price of medication,” said NAM President and CEO Jay Timmons. “Congress must reform the PBM system so employers can negotiate, compete and achieve profit savings.”

NAM in the news: POLITICO’s Influence newsletter highlighted the NAM’s campaign.

Tell Congress To Reform PBM’s Today

A continuous regulatory onslaught is hamstringing the permitting process for U.S. energy and infrastructure projects—and thus reducing manufacturing competitiveness and harming the U.S. economy, NAM Vice President of Energy & Resources Policy Brandon Farris told Congress on Tuesday. 

What’s going on: By consolidating and cleaning up our infrastructure permitting regulations, the U.S. can advance multiple top policy priorities, Farris said at “The Next Fifty Years of the Clean Water Act: Examining the Law and Infrastructure Project Completion,” a hearing of the House Committee on Transportation & Infrastructure’s Subcommittee on Water Resources and Environment.

• “Streamlining and modernizing our nation’s permitting laws and procedures will help us advance many of our nation’s shared priorities, improving the quality of life for all communities; modernizing our infrastructure; achieving energy security; ramping up critical mineral production; enhancing manufacturing competitiveness and creating manufacturing jobs in the U.S.,” Farris said. “These are goals that all Americans can support.”

Why the wait? Current wait times for the approval of critical manufacturing facilities, roads, bridges and more are needlessly lengthy, and they’re forcing business overseas, Farris continued.

• “Why should we settle for a permitting process that can take 10 or 15 years to approve essential projects?” he asked, adding that in Australia, a country with similar environmental protections, approvals take about two to three years.
• One manufacturer of critical raw materials for semiconductors recently told the NAM that “because of the regulatory uncertainty in obtaining a Clean Water Act section 402 permit in a timely manner . . . they are going to build a facility in the E.U.” instead of the U.S.

Steps to success: Manufacturers are urging legislators to take several actions to rectify the broken system. These are:

• Consolidate permitting processes—with enforceable deadlines—for the siting of new energy projects and their infrastructure;
• Speed up the approval process for transportation-infrastructure projects;
• Commit to developing our resources to strengthen U.S. supply chains for the critical minerals vital to national security;
• Ensure that the Biden administration follows congressional intent on all streamlining efforts, including the One Federal Decision, a Transportation Department approach that seeks to expedite certain federal environmental reviews.

The last word: “Permitting reform will help us achieve more—more manufacturing, more domestic energy production, more inputs and raw materials and more jobs,” Farris concluded. “And our country and the world will be better off if we and our allies do not depend on our authoritarian rivals for energy and other natural resources.” 

Washington, D.C. –  A new report conducted by Oxford Economics and commissioned by the National Association of Manufacturers warns that the Environmental Protection Agency’s proposed air quality regulations for particulate matter (PM2.5) are projected to threaten $162.4 billion to $197.4 billion of economic activity and put 852,100 to 973,900 current jobs at risk, both directly from manufacturing and indirectly from supply chain spending. In addition, growth in restricted areas may be constrained, limiting investment and expansion over the coming years. Due to these limited opportunities for expansion or investment, these areas in nonattainment could lose out on an additional $138.4 billion in output and 501,000 jobs through 2027.

Overall, the regulations could make it extraordinarily difficult to create new manufacturing jobs and protect existing manufacturing jobs in areas out of attainment. The regulations could also prevent much needed infrastructure improvements in these areas. This is because compliance with the regulations could require restricting manufacturing operations, resulting in fewer jobs, less investment and higher costs for consumers and families.

“Improving air quality in the U.S. is a top priority for manufacturers, and we’ve worked for years to make progress in delivering some of the cleanest manufacturing processes in the world,” said NAM President and CEO Jay Timmons. “This analysis makes clear these new regulations will weaken our ability to invest in the technology and processes that would continue to reduce emissions—while jeopardizing high-paying manufacturing jobs. We need to let manufacturers do what they do best: innovate and deploy modern technologies to protect the environment, while creating jobs and strengthening the economy.”

Key Findings:

• The regulations create a total economic exposure of $87.4 billion for manufacturing economic activity, equal to 2.4% of the U.S. manufacturing sector’s gross value added.
• The number of manufacturing jobs associated with this exposed activity is 311,600, or 1.9% of all U.S. manufacturing employment.
• Manufacturing in the U.S. exposed to the proposed standard supports between $75 billion and $110 billion in GDP and between 540,500 and 662,300 jobs in the U.S. through supply chain spending.
• Due to limits on expansion and investment, the proposed rule would put at risk approximately $138.4 billion of gross value added (in 2021 prices) and 501,000 jobs in 2027 in areas of nonattainment.
• Under the proposed rule, 200 counties could be placed out of attainment.
• California’s manufacturing sector will be most exposed, followed by Michigan and Illinois.
• Manufacturing operations in the U.S. are environmentally cleaner than the global average.

Find the latest information on the NAM’s efforts to oppose top-down air regulations, including statements from manufacturing leaders, here.

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The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs nearly 13 million men and women, contributes $2.90 trillion to the U.S. economy annually and accounts for 55% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org.

Yesterday, the U.S. Securities and Exchange Commission finalized a rule that requires new disclosures from companies conducting stock buybacks.

The background: Stock buybacks are a commonplace practice that allow companies to ensure that their cash reserves are being used effectively. Returning capital to shareholders benefits both the company and its investors by increasing shareholder returns, enhancing capital formation and ensuring efficient capital allocation.

• Over the past few years, however, policymakers and regulators have taken steps to discourage buybacks, and the SEC has now finalized a rule targeting them.

The burden: The SEC’s rule imposes several new burdens on manufacturers conducting buybacks:

• A requirement that companies disclose detailed buyback data from each day of a fiscal quarter—imposing significant costs and dramatically increasing the complexity of businesses’ quarterly filings
• A requirement that companies provide disclosures justifying their buybacks, which could further politicize these capital allocation decisions
• New disclosures related to companies’ stock buyback programs and transactions by company management and boards of directors

The pushback: The NAM spoke out against the SEC’s rule when it was proposed last year, detailing the harm it would do to manufacturers.

• In particular, the NAM called on the SEC to reverse its proposed next-day disclosure requirement, which would have mandated upward of 250 new SEC filings per year for many public companies.

The result: Thanks to the NAM’s advocacy, the SEC’s final rule left out the daily disclosure requirement—a significant victory for manufacturers.

• However, companies will still be required to track daily buyback activity to comply with the quarterly day-by-day reporting mandate.
• In addition, the final rule maintained the proposal’s burdensome requirement that companies describe the “objectives or rationales” for any stock buybacks as well as the “process or criteria” used to set buyback targets.

The next steps: Most domestic companies will be required to provide daily buyback data in their Q4 2023 filings, meaning that daily tracking will begin in October 2023 and be reported to the SEC in early 2024. Most foreign companies will be required to comply in their Q2 2024 filings.

The last word: “The NAM is disappointed that the SEC has chosen to unjustifiably punish manufacturers for returning capital to their shareholders,” said NAM Managing Vice President of Tax and Domestic Economic Policy Chris Netram. “Manufacturers, investors, retirement plans and the entire economy benefit when companies can efficiently allocate capital via share repurchases.”

Further reading: The SEC rule is not the only action targeting buybacks in the past few years. The Inflation Reduction Act included a new tax on buybacks—which the NAM also opposed. It is currently engaging with the IRS to minimize the harm done to manufacturers by the tax. Read more here.

As a family-owned small business that works with giant, complex industries like aerospace and medical devices, Westminster Tool knows its ability to innovate is what sets it apart. The 25-year-old company makes complex injection mold systems, composite tooling and components—including devices used in medical transplants and high-performance plastic parts for military aircraft.

• “We’re constantly looking to improve ourselves,” said Westminster Tool Chief Financial Officer Colby Coombs. “We’re always looking to push technological advancements, bring products to market faster, improve quality and reduce cost.”

So when a harmful R&D tax change went into effect, it caused real problems for the Connecticut-based company.

The change: Until recently, businesses could deduct 100% of their R&D expenses in the same year they incurred the expenses. But since last year, the tax code has required businesses to spread their R&D deductions out over a period of five years, making it much more expensive upfront to invest in the kind of innovation at which Westminster Tool excels.

The impact: As a result of the policy shift, Westminster Tool has found itself paying significantly more in taxes—and having to scale back its ambitions.

• “The impact has been large,” said Coombs. “Because of this change, I had to reconsider a contract that was going to mean new jobs and diversification just based on the cash flow that I needed in order to pay the government.”
• “Ultimately, this law may prohibit me from hiring more people, training more people in new skills, investing in our community and bringing in new work stateside.”

The uncertainty: As a result of uncertainty, small businesses are being forced to hold off on investments they can no longer afford.

• “I am at the mercy of this law, waiting to see how it plays out before I can make any large-scale investment in our business,” said Coombs. “It is putting massive pressure on our ability to grow and be an employer of choice in our community.”

The urgency: Coombs also emphasized the international nature of the challenge. With so many global competitors—especially those based in China, which provides a super deduction for manufacturers—an inability to invest in R&D will hurt manufacturing in the U.S.

• “If Congress doesn’t do the right thing this year, this is going to be a job growth prohibitor or a job killer,” said Coombs. “We are trying to compete with international competitors that aren’t hamstrung by this problem. If Congress fails to fix this issue, it will drastically impact my ability to compete with the global powers in our industry.”

The small business effect: Coombs notes that small businesses in particular will be harmed by this change, since they don’t have the cash reserves to take on significant new expenses.

• “Small companies don’t have the balance sheets to handle this,” said Coombs. “We are doing the best we can to survive, to represent our state, to make advancements and offer the best job opportunities we can. This law is prohibiting me from doing what we’re striving to do.”

The last word: “Failure by Washington to reverse this change will put companies underwater and out of business,” said Coombs.

You can find more information and ways to take action at the NAM’s R&D Action Center.