Policy and Legal

The outgoing Biden administration is undermining a U.S. manufacturer in its high-stakes dispute with the Mexican government by “seeking to erode investor-state dispute settlement (ISDS) protections under U.S. trade agreements with Colombia, Mexico and Canada,” a recent Wall Street Journal (subscription) editorial revealed.

The problem: ISDS protections safeguard U.S. investments from foreign governments seeking to interfere with or appropriate them, as the predicament of Vulcan Materials Company shows.

• Vulcan has been embroiled in a dispute with the Mexican government since 2018, when the government shut down some of its quarrying operations, according to Chairman and CEO J. Thomas Hill.
• The unwarranted shutdown forced the company to pursue arbitration under NAFTA, but the situation only got worse—former Mexican President Andrés Manuel López Obrador ordered all of Vulcan’s operations to cease in May 2022, including at a deepwater port the company built in the early 1990s.
• Now, the company is expecting its second round of arbitration to be decided by mid-2025—unless the Biden administration guts the investor protections in the U.S.–Mexico–Canada Agreement, handing a victory (and a key port) to the Mexican government.

Congressional fury: Both Congress and Vulcan itself learned of the administration’s efforts via The Wall Street Journal editorial, instead of directly from the Office of the U.S. Trade Representative. This is particularly egregious because the USTR is required to consult with Congress on investment obligations in trade deals.

• Bipartisan members of Congress have expressed their outrage, with Sen. Katie Britt (R-AL) writing in The Wall Street Journal (subscription) that “the Biden administration is negotiating away the due process of Americans, including my constituents, in the waning days of this lame-duck administration.”
• On Dec. 20, three bipartisan senators joined Sen. Bill Hagerty (R-TN) in condemning the USTR’s efforts on the Senate floor. “If Mexico is allowed to target, without repercussion, a company like Vulcan, one that employs thousands of Americans, and has operated responsibly in Mexico for decades, that means no American business is safe in Mexico,” Sen. Hagerty said.
• Sens. Tim Kaine (D-VA) and Tommy Tuberville (R-AL) joined both Sens. Britt and Hagerty in calling on Congress to pass the Defending American Property Abroad Act, which would impose penalties on Western Hemisphere countries that unlawfully seize the assets of American firms.

The NAM says: The NAM is calling on the USTR to halt this effort immediately, said NAM Vice President of International Policy Andrea Durkin.

• “ISDS has a legitimate role in U.S. trade policy to ensure our manufacturers receive fair and equitable treatment by foreign governments and to protect against egregious expropriation or nationalization of U.S. investments without adequate and effective compensation.”
• “U.S. manufacturers are entitled—at a minimum—to be consulted about any proposed changes that would impact their right to due process in ongoing cases.”

The Biden administration’s ban on new offshore oil and gas drilling in most American coastal waters “sets a bad precedent for the country,” the NAM said Monday.

What’s going on: The decision, which comes just two weeks before President Trump takes office, applies to “new drilling off the entire East Coast, as well as California, Oregon and Washington state” and “some drilling off Alaska’s coast in portions of the Northern Bering Sea and in the eastern Gulf of Mexico” (The Hill).

• Though there is currently no active drilling in the Atlantic and most U.S. offshore oil and gas production comes from the central and western Gulf of Mexico, the area placed under the ban is the largest ever “formally taken off the table for drilling by a president.”
• In response, President Trump on Monday said he would “unban it immediately” (Associated Press).

Why it’s a problem: The moratorium could prove harder for Trump to undo than other 11th-hour moves by Biden. That’s in large part because of the Outer Continental Shelf Lands Act, which gives U.S. presidents the right to block drilling in certain areas but not the right to reinstate it.

• However, Congress could work with the new president to undo the move—and it should, Timmons said. “Manufacturers are committed to working with Congress and [President Trump] to scale back this harmful decision that undermines American energy dominance.”

Several last-minute regulatory actions by the outgoing Biden Treasury Department are “clear example[s] of regulatory overreach” that should be withdrawn immediately, the NAM told the Biden administration recently.

What’s going on: The Treasury Department has proposed new guidance and regulations that, if finalized, would change the IRS’s treatment of related-party transactions, particularly as they relate to partnerships.

• The proposed standards would impose significant reporting obligations on manufacturers while also drastically changing the tax treatment of these commonplace payments.
• Additionally, Treasury has proposed new rules governing “dual consolidated losses” that would make it more difficult for manufacturers operating in multiple jurisdictions around the world to utilize their tax losses appropriately.

Why it’s problematic: The proposed standards are outside Treasury’s statutory authority and are “unlikely to withstand inevitable judicial scrutiny,” the NAM told the agency at the end of 2024.

• In December, the NAM laid out the legal issues endemic to Treasury’s proposals, identifying both substantive and process-related issues that undermine each action.
• The submission builds on manufacturers’ comments to the agency on the proposals themselves: The NAM said in July that the related-party guidance was “wholly unauthorized, unsupported and unsupportable” and in August told the agency that the related-party rules “would impose an undue burden on taxpayers that outweighs any potential compliance benefit.”
• It added in October that the dual consolidated loss proposal was “internally inconsistent” and “fail[ed] to reflect reasoned decision-making.”

Regulatory onslaught: The NAM has been at the forefront of pushing back on the Biden administration’s regulatory onslaught, which costs manufacturers upward of $350 billion every year.

• Shortly after the 2024 presidential election, the NAM led a group of more than 100 manufacturing associations in urging the incoming Trump administration to “address burdensome regulations that are stifling investment, making us less competitive in the world, limiting innovation and threatening the very jobs we are all working to create right here in America.”

What’s next: The NAM is calling on the Biden Treasury Department not to finalize these proposals in the administration’s final days, but rather to pause or withdraw the rules in question until the Trump administration takes office.
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Washington, D.C. – Following the publication of new final guidance by the U.S. Department of Treasury for the hydrogen production tax credit, National Association of Manufacturers President and CEO Jay Timmons released the following statement:

“America leads when we unleash all our energy potential, including hydrogen, American natural gas, nuclear and more. With a strong build-out of hydrogen production facilities, we will be able to add more sources of reliable energy for manufacturers, power plants and communities while cementing our energy dominance.

“The NAM has advocated consistently for flexibility in the credit using project-specific emissions data rather than national or regional averages. The Biden administration’s guidance provides manufacturers with an important step forward. But for hydrogen to truly become a game-changing energy source, we need to address restrictions that make it harder to cost-compete on a global scale. A robust and flexible hydrogen industry will also be a major boon to the production and utilization of American natural gas as well as American nuclear power.

“Under President Donald Trump’s leadership, we have an opportunity to cut taxes, slash red tape and unleash permitting reform—turning this credit into a powerful tool for American energy leadership and fuel security. It’s time to build on this momentum and ensure these incentives deliver on their full promise for America’s manufacturers, workers and economy.”

-NAM-

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 $2.91 trillion to the U.S. economy annually and accounts for 53% 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.

Manufacturers support the policy recommendations laid out in the House of Representatives’ newly released report on artificial intelligence, the NAM said Tuesday.

What’s going on: The Bipartisan House Task Force Report on Artificial Intelligence contains AI-related recommendations for implementation by Congress.

• Drafted by the House AI Task Force—12 Republicans and 12 Democrats—the 273-page document “highlights America’s leadership in its approach to responsible AI innovation while considering guardrails that may be appropriate to safeguard the nation against current and emerging threats,” the task force’s co-chairs, Reps. Jay Obernolte (R-CA) and Ted Lieu (D-CA), wrote in a letter to House Speaker Mike Johnson (R-LA) and House Minority Leader Hakeem Jeffries (D-NY) at the beginning of the report.

The details: The task force report includes many recommendations that the NAM supports, including the following:

• Promote innovation: “As the global leader in AI development and deployment, the United States is best positioned to responsibly enable the potential of this transformative technology for all. To maintain this leadership and enable the U.S. economy to harness the full benefits of AI, policymakers should continue to promote AI innovation.”
• Safeguard against harm: “A thoughtful, risk-based approach to AI governance can promote innovation rather than stifle it.”
• Plan for power needs: “Planning properly now for new power generation and transmission is critical for AI innovation and adoption.”
• Develop an AI-ready workforce: “Successful collaborations between educational institutions, government and industries should effectively align education and workforce development with market needs and emerging technologies.”
• Protect privacy: Congress should “[e]nsure privacy laws are generally applicable and technology-neutral.”
• Make compliance feasible: Lawmakers should ensure that AI regulatory compliance is not unduly burdensome for small businesses
• Increase cooperation: Bolster collaboration between the government, industry and academia to boost innovation and expand markets.

NAM alignment: In May, the NAM released “Working Smarter: How Manufacturers Are Using Artificial Intelligence,” its own report on AI’s deployment in the manufacturing sector and an accompanying list of suggested policy actions for Congress to take.

• The NAM briefed legislators on its report in September.

Next steps: The NAM will work closely with policymakers in Congress and the incoming administration to bolster AI innovation in manufacturing, based on shared policy goals.   

Additionally, manufacturers will continue to call on Congress to pass federal data privacy legislation that “preempt[s] state privacy regulations [and] resolve[s] conflicting requirements in different states”—an important issue for the use of AI where the House report does not prescribe a policy solution.

The NAM is urging President Trump to reconsider the Biden administration’s misguided findings regarding new liquefied natural gas export permits, following the release of a Department of Energy study claiming that increased permit numbers would have negative effects on the nation.
 
What’s going on: The Department of Energy’s analysis, released Tuesday, holds “that ‘unfettered’ shipments of the fuel would make domestic prices rise … [and would] displace more renewables” (E&E News).

• However, the “report from Energy Secretary Jennifer Granholm is clearly a politically motivated document designed for an audience who believes no form of carbon-based energy is acceptable,” NAM President and CEO Jay Timmons said. “LNG exports play a crucial role in reducing emissions by providing cleaner energy alternatives to countries reliant on higher emission sources.”   

What the ban’s done: The result of the Biden administration’s moratorium—issued in January—on the issuance of new U.S. LNG export permits has been “chilled energy investment, costing the country manufacturing jobs and holding us back from achieving energy dominance on the world stage,” Timmons continued.

• “The DOE’s report claims to be concerned about security, but the actions of this administration on LNG only serve to incentivize Europe to purchase natural gas from Russia.”  

A popular, key energy source: U.S. LNG is far cleaner than Russian LNG (House Energy and Commerce Committee). Furthermore, an October study by the NAM and PwC found that U.S. LNG is a significant and crucial contributor to gross domestic product, as well as an important source of jobs and federal, state and local taxes.

• What’s more, Americans want to keep exporting it. In a March NAM poll of 1,000 registered voters, more than 87% said they believe the U.S. should continue to export LNG.   

The bottom line: “The data is clear: LNG exports are a driving force for economic growth and job creation in the United States,” Timmons concluded. “Halting LNG export licenses as suggested would threaten nearly a million jobs and undermine our nation’s economic stability. The NAM asks President Trump to end this political war on the energy manufacturers that power our economy, fuel job growth and help ensure America’s national security.” 

Washington, D.C. – Following the release of Congress’ year-end government funding package, National Association of Manufacturers President and CEO Jay Timmons released the following statement on the inclusion of pharmacy benefit manager reforms:

“Manufacturers commend House Speaker Mike Johnson, committee leadership and reform champions for their work on a government funding package that tackles rising health care costs via important PBM reforms. The NAM has long championed congressional efforts to rein in PBMs, underregulated middlemen that increase health care costs for manufacturers and manufacturing workers. The government funding package released today will increase transparency into these powerful actors, ensure they pass rebates on to patients and plan sponsors and delink their compensation from drug costs. These are vital steps toward lowering Americans’ health care costs—the top business challenge facing manufacturers, according to the most recent Manufacturers’ Outlook Survey—and Congress should act swiftly to pass this package of much-needed reforms.

“Although permitting reform was not included in the final package, we are confident that President Donald Trump will continue to focus on the urgent need to enact comprehensive permitting reform. We look forward to working with incoming Senate Majority Leader John Thune, Speaker Johnson and their colleagues in congressional leadership to ensure manufacturers can build a more prosperous nation.”

-NAM-

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 $2.91 trillion to the U.S. economy annually and accounts for 53% 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.

Washington, D.C. – The National Association of Manufacturers today responded to the Department of Energy’s report on liquefied natural gas exports and highlighted the harmful impact of the DOE’s misguided attempts to restrict new LNG export terminals.

A comprehensive study conducted by the NAM, in collaboration with PwC, reveals that robust LNG export operations could support more than 900,000 jobs, contribute up to $216 billion to U.S. GDP and generate $46 billion in tax revenue by 2044. Furthermore, the LNG sector supports approximately 222,450 jobs, resulting in $23.2 billion in labor income, and contributes $43.8 billion to the national GDP.

“Today’s report from Energy Secretary Jennifer Granholm is clearly a politically motivated document designed for an audience who believes no form of carbon-based energy is acceptable. LNG exports play a crucial role in reducing emissions by providing cleaner energy alternatives to countries reliant on higher emission sources,” said NAM President and CEO Jay Timmons.

“The result of the LNG export ban that has been in place since January is chilled energy investment, costing the country manufacturing jobs and holding us back from achieving energy dominance on the world stage. The DOE’s report claims to be concerned about security, but the actions of this administration on LNG only serve to incentivize Europe to purchase natural gas from Russia.

“The data is clear: LNG exports are a driving force for economic growth and job creation in the United States. Halting LNG export licenses as suggested would threaten nearly a million jobs and undermine our nation’s economic stability. The NAM asks President Trump to end this political war on the energy manufacturers that power our economy, fuel job growth and help ensure America’s national security.”

-NAM-

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 $2.91 trillion to the U.S. economy annually and accounts for 53% 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

In its current form, the Environmental Protection Agency’s recent proposal to add specific per- and polyfluoroalkyl substances and PFAS categories to a database of toxic chemicals would place an unnecessary hardship on manufacturers, the NAM told the agency recently.
 
What’s going on: In October, the EPA published draft rules that would add 16 individual PFAS and 15 PFAS categories representing more than 100 individual PFAS to its Toxic Release Inventory, a list of potentially hazardous chemical release and waste management activities taking place in the U.S.

• Companies producing or manufacturing products with chemistries added to the TRI are required to complete and submit inventory forms each year for the chemicals they make and use over established limits.
• “The NAM believes this proposed rule will create unduly burdensome compliance requirements and increase costs for manufacturers and consumers as written,” NAM Vice President of Domestic Policy Chris Phalen said this month.

What should happen: The EPA should “adopt the following approaches to the proposed rulemaking”:

• Stay the proposal to give the public more time to comment on it.
• Revise the proposed PFAS and PFAS category additions to reflect “a meaningful baseline of scientific evidence” and ensure that “the scientific evidence justifying the listing[s] [is] supported by peer review and public comment.”
• List individually every PFAS added to the TRI and make each one identifiable.
• Narrow the group of PFAS listed as “chemicals of special concern” to reflect the scope of authority granted to the EPA by the fiscal year 2020 National Defense Authorization Act.

Why it’s important: “While the EPA estimates this proposed rule would result in up to 1,110 TRI reporting forms annually at an estimated cost of up to $6.6 million for its first year and up to $3.1 million for subsequent years, we anticipate the compliance costs to manufacturers will be significantly higher,” Phalen continued.

• If finalized as written, the rule will force manufacturers to hire additional workers and consultants, train employees on proper reporting processes, spend huge sums of money on testing and verifying results and much more.
• The result: “a costly drain on [manufacturers’] resources … [that] will lead to a rise in operational and production costs far above the EPA’s cost estimates for the proposed rule.”

The regulatory onslaught facing manufacturers has “reached a fever pitch” over the past four years, but the incoming administration can turn things around, the NAM and more than 100 other manufacturing associations told President-elect Trump and his Cabinet today.

What’s going on: “You have the opportunity to tackle this challenge by addressing burdensome regulations that are stifling investment, making us less competitive in the world, limiting innovation and threatening the very jobs we are all working to create right here in America,” the groups wrote to the president-elect.

What they said: The letter outlines a pro-manufacturing regulatory agenda based on more than three dozen regulatory actions the administration can take starting on Day One. Key highlights include the following:

• Instituting a “regulatory reset”: The NAM and its partners are calling on the incoming administration to “stop the trend of overreaching regulations that seek to expand agencies’ authority” and instead focus on tailored rulemakings based on robust collaboration with the industry.
• Lifting the LNG export ban: President-elect Trump should undo the Biden administration’s January moratorium on liquefied natural gas export permits. A protracted pause would jeopardize 900,000 jobs and $250 billion in U.S. gross domestic product, according to a recent NAM study.
• Easing the permitting burden: “The United States’ out-of-date permitting laws and procedures are holding back progress and restricting manufacturers’ ability to compete globally,” says the letter. The Trump administration should accelerate the permitting process for critical energy infrastructure, create enforceable deadlines and provide regulatory certainty to manufacturers.
• Reconsidering NAAQS PM2.5 and maintaining the existing NAAQS ozone standard: In February, the Environmental Protection Agency announced an unworkably stringent National Ambient Air Quality Standard for fine particulate matter (PM2.5). The Trump administration should relax the PM2.5 rule and maintain the existing NAAQS for ozone—a standard the European Union has set more than 70% above the current U.S. threshold—when it comes up for review in 2025.
• Replacing unbalanced power plant rules: The Trump administration should replace the EPA’s new rules for existing coal-fired and new natural gas–fired power plants with workable standards.
• Depoliticizing the proxy process: In recent years, the Securities and Exchange Commission has taken steps to empower activist investors and proxy advisory firms. The incoming administration should rescind damaging standards, such as Staff Legal Bulletin 14L, which requires companies to include activist proposals on their proxy ballots, while preserving and protecting much-needed reforms from the first Trump administration, including the landmark 2020 proxy firm rule.

Other asks: The group also urged the new administration to:

• Reverse the trend of overly burdensome and unworkable chemicals regulations, such as the Biden administration’s PFAS rules;
• Take decisive measures to protect manufacturers’ intellectual property rights;
• Narrow the scope of proposed cyber incident reporting requirements; and
• Reconsider the Occupational Safety and Health Administration’s damaging “walkaround” rule and more.

Ready to move forward: America’s manufacturers are committed to a regulatory environment that “truly supports manufacturing, innovation and American prosperity”—and they are “ready to move forward” with the president-elect to “make America’s manufacturing sector unstoppable.”