Forbes Column: Navigating The Storm: AI Regulation And The Future Of Business

In his latest Forbes column, Delve CEO Jeff Berkowitz warns AI tools are filled with potential but also fraught with political, legal and reputational challenges business must consider before adopting or building AI. To understand what those challenges mean for you, read the excerpt below, then head to Forbes.com to read the full article.

Artificial intelligence is here, and it is transforming the world in ways we are only beginning to grasp. As businesses incorporate generative AI into their operations, many will find themselves in an uncharted frontier—a landscape filled with potential but also fraught with political, legal and reputational challenges.

AI’s rapid evolution has drawn the attention of Congressforeign governments and the European Union regarding concerns about AI advancing at such a pace that they can’t keep up. This can leave businesses that rely on AI in a potentially precarious position.

As someone who helps companies navigate risks, I believe that while regulators might try to narrowly regulate the technology, the rush to regulate could stifle the opportunity for AI to boost productivity. Yet, in the absence of defined rules and guardrails, businesses must make complicated ethical, privacy and other contentious decisions on their own.

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AI’s capabilities will permeate every sector—law, healthcare, financial services, law enforcement, energy and beyond. Companies must keep pace or risk being left behind.

This reality presents a challenge for businesses unaccustomed to navigating complex policy environments, as the rise of AI could lead to governmental and consumer ripple effects that, like many other areas of technology regulation, vary greatly from jurisdiction to jurisdiction. Businesses will have to stay abreast of this patchwork of legislative and regulatory changes and the evolving public attitudes that vary by culture and region.

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Whether your business is building its own AI-enabled tools or leveraging newly available tools built by others, you will need the ability to communicate what AI is and is not to all of your stakeholders, as well as the government entities that can impact your firm.

For businesses, the choice should not be between avoiding AI and risk falling behind or incorporating AI into core processes and face potentially immense political, legal and reputational scrutiny. Instead, businesses must fully understand what is driving this scrutiny and how your firm’s stakeholders—employees, customers, communities, investors and beyond—are likely to respond. This understanding will empower businesses to navigate this complex landscape, manage risks and fully capitalize on the opportunities presented in this rapidly evolving AI era.

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Continue reading at Forbes.com and find out how to understand the political, legal, and reputational risks businesses must navigate as they adopt AI.

Rise of the Machines?

Here’s What You Need To Know

In the 1990s, American regulators chose to step back and allow the emerging “Information Superhighway” to innovate in an open, competitive playing field free from regulatory pressures. As we enter the new age of generative artificial intelligence (AI), policymakers around the world appear far more eager to regulate this disruptive new technology and the companies bringing it to digital life.

Instead of waiting to see how generative AI evolves and society adopts it, governments are rushing ahead to create a patchwork of regulations that will significantly impact any business hoping to build or utilize AI. While it is not likely to slow policymakers’ regulatory zeal, their solutions will almost certainly fall to Amara’s Law (futurist Roy Amara’s caution that “We tend to overestimate the effect of a technology in the short run and underestimate the effect in the long run”). Here’s what you need to know to help your organization shape the emerging debate with an information advantage.

What AI Is … And Isn’t

What makes generative AI unique is its ability to create sophisticated content from basic prompts provided by humans. Yet while the memos, essays, ideas, and images spit out by AI chatbots may make the tools powerful “copilots” in the workplace and beyond, AI is still far from ready to replace human workers. That’s because the large language model (LLM) under the hood of tools like ChatGPT is simply a powerful recognizer of patterns, predicting the next word in a sentence or pixel in a picture based on patterns it learned from being trained on massive amounts of human-produced data.

Chatbots are only as good as the data they’re trained on, so while they may be (mostly) know-it-alls with the ability to quickly reproduce what seem like facts, they can’t yet replace the critical thinking, creativity, judgement, and multi-step task completion offered by humans. Indeed, one of the emerging in-demand jobs of the AI age is a human prompt engineer.

Policymakers Aren’t Waiting For Prompts

Even though most businesses are only in the first stages of adopting AI, elected officials and regulators across numerous geographies and all levels of government are ready to act. For businesses planning to win in the AI era, staying ahead of these efforts is critical.

AI regulation was already in the works. Even before ChatGPT arrived in late 2022, officials had AI in their sights. The European Union had planned to regulate certain uses of AI like social scoring and “some instances of facial recognition.” China had implemented rules around recommendation algorithms and deep fakes. In the United States, the Biden Administration released an AI Bill of Rights blueprint and, in 2022, nine AI-related bills passed at the federal level and 21 at the state level.

ChatGPT scrambles policymakers’ best laid plans. ChatGPT triggered a generative AI arms race, and regulators are rushing to catch up. Rulemaking efforts that may have taken months or years to hash out before are now being considered in days and weeks. In just 11 days, regulators in the EU revamped their AI Act to address copyright concerns over ChatGPT. Italy banned OpenAI and gave it just 20 days to address issues around user privacy and the protection of minors (OpenAI complied). China released draft regulations just months after their last round of AI rules went into effect, requiring chatbots to follow “socialist core values.” U.S. Senate Majority Leader Chuck Schumer is circulating a “broad framework” for regulating AI.

Expect a patchwork of regulation. It’s not only Washington, Beijing, and Brussels rushing to place guardrails around generative AI. State and local governments are moving ahead with their own efforts. When it comes to federal-level rules, it’s not clear if Washington will be able to muster a coherent, unified plan. The Commerce Department is in the early stages of the rulemaking process, but other agencies are jumping into the fray – with several regulators insisting they have existing authority to police an AI-influenced world. The CFPB, Justice Department, EEOC, and FTC recently asserted their intent to fight AI bias with laws that are already on the books. Existing laws like California’s 2018 legislation that boosted transparency around online bots could be used by citizens to sue over undisclosed AI communication.

Policy Advocates Are Already Generating Their Response 

Outside voices want to shape government’s response. Policymakers aren’t waiting to join the game, and neither are the stakeholders and advocates on all sides of the AI playing field. On one side are those who see artificial intelligence as an existential threat to humanity. On the other are AI developers themselves, who of course want their research to continue. In the middle are any number of stakeholders with interests in how AI is controlled and regulated, including activists concerned with AI’s impact on everything from fairness to climate. 

Companies are trying to get ahead of concerns. Businesses in the AI space see what’s coming. TikTok is making a tool that would allow its creators “to disclose they used generative artificial intelligence” for their content. Apple has already delayed approval of an AI-powered app over concerns about “inappropriate content for children.” AI developers themselves have supported the idea of regulation.

The emerging battlelines will touch a wide range of industry sectors and segments of society. Because the impact of generative AI will touch so many aspects of work and life, regulatory efforts will cover equally wide ground. Expect major battles on algorithmic bias, intellectual property, crime, data privacy, tort liability, product marketing claims, and so much more. Meanwhile, businesses and others will have to navigate new reputational risks like deepfake scams and public backlash over using AI.

Get Smart To Stay Ahead

The AI era is here, and it’s moving faster than you can imagine. As generative AI’s feats grow more impressive by the day, the pressure for governments to regulate this new technology will only grow. Public affairs professionals in the technology sector can’t afford to tune out the conversation. Understanding the full range of stakeholders and how they will attempt to shape the emerging policy and regulatory frameworks – not to mention the public’s perception and understanding of what AI is (and isn’t) – will be crucial to ensuring your organization’s voice is heard and interests protected. With so many jurisdictions rushing to act, staying ahead may prove daunting. If Delve can help you build your information advantage in the AI debate, reach out to start a conversation (no chatbots involved).

 

States Get Ready to Rumble

Here’s What You Need to Know

As of today, 18 state legislatures have already convened their 2023 sessions, and all but five state legislatures will have assembled within the next two weeks. That means life is going to come fast for state-focused government affairs professionals, who will find a dramatically different and even more sharply divided legislative landscape this year.

Shaped by one of the largest waves of freshmen legislators in years, many of whom were swept into office by the twin tides of populism and progressivism, and with increased one-party rule across more states, 2023 legislative sessions will prove challenging for a range of industries.

Public affairs professionals who have not already built their post-election playbook are starting 2023 behind. Here is what you need to know to stay ahead of this year’s key legislative debates.

2023 State Legislatures Bring Newer, More Polarized Landscapes

More than one in four of the nearly 6,300 state legislators elected last November will be freshmen, thanks to the largest number of open seats in six election cycles and the highest number of primary defeats for incumbents in five election cycles. That shake up will extend to chamber leaders as well – about one-third of them will be new.

Many of these new faces will only fuel what has already been a long march towards more polarized legislatures. In 2023, single party control of states will reach a new high, with 140 million Americans living under Democratic control and nearly as many under Republican control:

  • 48 of 50 state legislatures will feature one-party control across chambers
  • 40 of those states will have trifecta control with a governor from the same party (though in both cases, Alaska’s inclusion is with a caveat)
  • And a new high of 26 state legislatures will feature veto-proof majorities

Such domination by one party in state government mean fewer checks on partisan excesses, straining businesses’ ability to straddle the growing policy gap between red and blue states on a broadening range of issues.

That Polarized Landscape Will Pressure Key Industries from Both Sides

From Fossil Fuel Divestment to Building and Vehicle Electrification and Beyond, States Will Clash Over the Energy Transition Even as They Leverage Federal Funds to Advance It. With billions flowing toward transitioning America towards net zero, expect plenty of clashes at the state level, including whether state pension funds should use their shareholder status to pressure fossil fuel companies to increase climate commitments or divest from fossil fuel entirely, which other states view as an unfair economic boycott. Similarly, building electrification initiatives in the Inflation Reduction Act (IRA) could lead to more legislative bans on natural gas hookups in newly constructed buildings – though some may update building codes to enforce these changes instead. With federal funding to build electric vehicle (EV) charging infrastructure heading to states, more states will consider following California’s lead in banning the sale of new gasoline-powered automobiles, even as other states push back. Other incentives in both the IRA and infrastructure law will encourage states to embrace more renewable energy development, including wind, solar, hydrogen, and nuclear, as well as measures to develop carbon capture, utilization, and storage. Bringing these renewables online will also require states to seek upgrades to the nation’s aging transmission network. Lastly, expect more progressive states to adopt new laws aimed at addressing environmental justice.

States Find Alignment on Tackling Healthcare Cost and Access, Diverge on Reproductive Health, With Many Firms Caught In Between. While the federal government prepares to negotiate prescription drug prices for Medicare participants, 22 states have adopted caps on co-payments for insulin and many others have introduced legislation as part of a broader push cracking down on prescription drug prices. Red and blue states also are finding common ground expanding access to telehealth, though the Supreme Court’s Dobbs decision could drive a wedge on such initiatives as red states restrict access and blue states expand access to abortion pills and procedures. Even for companies outside the health sector, this debate could impact their interests, as some red states look to penalize companies that aid employees skirting their state’s restrictions and blue states expect firms to defy other states’ restrictions.

States Have Big Tech and China in Their Crosshairs – But Their Actions Could Impact Firms Outside the Sector Too. There may be harmony between red and blue states on antitrust legislation targeting Big Tech over content moderation, app stores, and “right to repair”, but businesses outside the sector also could be caught in the middle as some states look to enact digital taxes or other measures that impact a wide array of firms, such as consumer data privacy rights. Closely tied to technology concerns is growing skepticism among state lawmakers regarding China’s presence in their states. At least five states have enacted laws limiting or prohibiting usage of technology products from Huawei and other Chinese makers, and others are considering such laws. Maryland recently became the latest state to ban the use of TikTok and other Chinese platforms on state government devices. These restrictions have gone beyond tech, with six states banning foreign ownership of farmland and others looking to regulate Chinese agricultural land purchases.

Financial Institutions Will Face Greater Pressure from Both Sides of the ESG Debate. 2022 witnessed a surge in red states divesting from banks and asset managers making environmental, social, and governance (ESG) commitments, and this trend will certainly continue into 2023. 19 states are considering such measures, following the lead of Texas, West Virginia, Oklahoma, and most recently Florida. Such actions have influenced Vanguard, the world’s largest mutual fund issuer, to leave the Net Zero Asset Managers (NZAM) initiative, but the state skepticism reaches well beyond the climate debate. Missouri, for example, is leading a 19-state investigation of whether Morningstar’s ESG assessments violate state consumer-protection laws, while Texas and others have launched a similar investigation into S&P Global. Meanwhile, blue states are calling on financial firms to be even more vigilant in enforcing climate goals and arguing for more ESG commitments.

FTX Crash Shifted Crypto Boosting to Crypto Busting. In 2022, a number of states boosted cryptocurrency with legislation often crafted by the industry itself, but FTX’s collapse has shifted support to skepticism as states line up to enact their own laws regulating the burgeoning industry in 2023. In addition to consumer protections and other rules specifically targeted at addressing FTX-like concerns, state legislators are likely to address environmental impact and energy consumption, usage as a form of legal tender, decentralized autonomous organizations (DAOs), property rights, tax structure and compliance, and cybersecurity.

Public Affairs Professionals Must Be Prepared to Navigate These Pressures

With state legislators rolling up their sleeves to enact a slew of policies that will significantly impact a range of businesses and industries, public affairs professionals cannot afford to wait to prepare for the battles that lie ahead. To anticipate these challenges, mitigate the risks, and leverage the opportunities, public affairs professionals will need a playbook to stay ahead. Here at Delve, we are already helping public affairs professionals build their playbooks to ensure they are ready to engage smartly and proactively in 2023 and beyond.

Gridlock’s Glass Jaw

Here’s What You Need to Know

With a Republican majority in the House and Democrats in charge of the Senate and White House, many in Washington believe legislative activity will grind to a halt come January. But if history is any guide, gridlock and partisanship may not be the only game in town.

After Republicans took control in 1994, they passed and President Bill Clinton signed historic welfare reform, telecommunications deregulation, and health insurance portability and healthcare privacy. In 2013, a Republican House, a Democratic Senate and the Obama White House passed a “long-stalled” farm bill and National Flood Insurance Program reforms. Even after the 2018 Democratic takeover, President Trump signed into law USMCA approval and bipartisan COVID relief legislation.

Why can a split Congress get things done? It comes down to which members of Congress have a seat at the negotiating table, and who shapes the debate both in and outside the halls of Congress. Smart public affairs professionals should analyze and monitor the players and issues with bipartisan potential and prepare for potential laws that will impact their business and industry – for better or worse. With the right playbook, anyone can get ahead of the bipartisan curve. Here’s what you need to know to see compromises before they happen.

Shared Concern over the Digital Economy

Reining in Big Tech. Bipartisanship was on display over the last year as members of both parties worked on legislation to combat what they see as anticompetitive practices among large technology companies. Those seeking to bridle big tech notched a win in September when the House passed bipartisan legislation to bolster funding for antitrust investigations and give state governments greater input on which courts hear federal antitrust cases. Now President Biden is urging the Senate to act on two other bills with support across party lines that would increase competitive protections on big tech platforms.

Potential on Data Privacy Legislation. After several years of negotiations, bipartisan privacy legislation crossed a big hurdle in July when the American Data Privacy and Protection Act (ADPPA) passed the House Committee on Energy and Commerce in a 53-2 vote. Speaker Nancy Pelosi’s opposition to the bill has soured hopes of immediate passage, but advocates are hopeful it can advance in the next Congress.

Restraining the Wild World of Crypto. The recent fall of FTX has encouraged action that could bring order to the world of crypto. Many of the bills worked on during the last Congress were bipartisan, which the industry itself thinks bodes well for the coming divided Congress.

Common Enemies Inspire Common Cause

Everyone Wants to Be Tough on China. The chair of the forthcoming House Select Committee on China, Rep. Mike Gallagher (R-WI), set a bipartisan tone for congressional China policy: “I think it would send a strong signal if we can bring the Democrats along and … pass really good, tough bipartisan legislation that goes after the threats posed by the CCP.” Legislation will likely focus on reducing reliance on Chinese goods and boost trade with Taiwan, in particular onshoring pharmaceutical production, as well as protecting U.S. citizens’ data from being sold or transferred to China and restricting Chinese technology providers’ access to the U.S. financial system.

Cybersecurity Has a Record of Bipartisan Work. Members of Congress in both parties have introduced and passed several bipartisan cybersecurity bills this past year, and the compromise NDAA under consideration this December contains several cybersecurity provisions. There are still differences between the parties on how best to protect life in the digital sphere, but there is likely to still be room for bipartisan work in the next Congress.

A New Green Deal

Permitting Reform May Have Life Beyond Manchin. Both Democrats and Republicans want to see shovels in the ground on their preferred energy projects but a complex permitting process stands in the way. Senator Joe Manchin’s (D-WV) now-stalled efforts never went far enough for Republicans, even as they went too far for progressives (and some state officials). Negotiations are likely to continue into the new Congress, with House Republicans seeking input on the potential reforms. Still, as we’ve noted before, without major changes to NEPA and states’ Clean Water Act 401 authority, energy developers will still face significant permitting challenges.

Advancing ‘All-of-the-Above’ Decarbonization. Rep. Jeff Duncan (R-SC) has released a three-page document indicating what issues he would prioritize atop the Energy Subcommittee, which includes streamlining nuclear regulations, a goal shared by Republicans and Democrats. Likewise, carbon capture technology has support in both parties, with at least some expectation for “smaller bipartisan bills” that provide financing for startups that aim to develop the technology. Lastly, aside from usual compromises on agricultural subsidies and SNAP benefits, the upcoming farm bill reauthorization could allow for bipartisan agreement on funding renewable energy projects in rural America and supporting forestry practices like carbon sequestration.

Addressing Health in A Post-Pandemic World

Strengthening Telehealth Coverage and Other Pandemic Era Regulatory Flexibilities. The pandemic was the opening act for telehealth services. As the Biden Administration considers bringing an end to the public health emergency (PHE), policymakers must decide whether to keep broader telehealth options in place for Medicare and Medicaid – along with other spending and flexibilities tied to the PHE. For example, the “Telehealth Extension and Evaluation Act,” introduced by Senators Catherine Cortez-Masto (D-NV) and Todd Young (R-IN), would address part of the challenge in this post-pandemic world by extending Medicare enrollees’ access to telehealth services.

Targeting Drug Price Transparency. Bipartisan ire over high prescription drug prices has found a new target: pharmacy benefit managers (PBMs) that play a central role negotiating between payers, producers, and pharmacies. Senators Chuck Grassley (R-IA) and Maria Cantwell (D-WA) introduced legislation that makes the Federal Trade Commission (FTC) – which has already launched an inquiry into PBMs – responsible for preventing unfair pricing practices by PBMs. Until consumers see lower prices at the pharmacy register, fixes like this will continue to draw bipartisan attention.

Public Affairs Professionals Need to Prepare

As history shows, even a Capitol Hill divided can yield legislative action. Even beyond the above examples, there are numerous opportunities for compromise in the new Congress. To anticipate the opportunities that may arise and mitigate the risks, industries and organizations need a playbook to stay on top of the action.

Biden Goes Global

Here’s What You Need to Know

It is the grand tradition of presidents who lose control of Congress to lean into foreign policy matters in which they can act with fewer legislative constraints. President Joe Biden wasted no time following this tradition, heading around the world before the votes were fully counted. His itinerary provided a glimpse into where his administration will focus abroad, spanning the 27th United Nations Climate Change Conference (COP27) in Egypt, G-20 Summit in Indonesia, and ASEAN Summit in Cambodia, the last of which included a high-profile meeting with Chinese President Xi Jinping.

While The White House’s recently released National Security Strategy “leaves more questions than answers about the White House’s approach to global crises,” in this era of heightened geopolitics, public affairs professionals cannot wait to see how Biden tackles foreign policy in the next two years. Biden will be under pressure from a GOP-controlled House regarding assistance to Ukraine and U.S.-China relations, but countless other international debates garnering less attention will impact a wide range of industries. Here is what public affairs professionals need to know as they prepare for Biden going global.

From Climate to Covid, Biden Can Use the Multilateral Stage to Advance His Agenda

Delivering Climate Aid to Developing Countries. At COP27 last month, Biden renewed his pledge of $11 billion to assist developing countries in the energy transition, even after these funds were left out of the Inflation Reduction Act this summer. A Republican-led House is unlikely to provide any funding, but Administration officials hope to leverage federal development agencies like the Export-Import Bank and the International Development Finance Corporation and a carbon credit system U.S. climate envoy John Kerry unveiled at COP27 to circumvent Congressional opposition.

Negotiating the WHO Pandemic Accords. Biden recently appointed Ambassador Pamela Hamamoto, who served as President Obama’s envoy to U.N. agencies in Geneva, to represent the U.S. in negotiations of the WHO’s proposed Pandemic Treaty. The accord – which the WHO is looking to have finalized by May 2024 – seeks to more effectively respond to future global health emergencies, and is likely to include several provisions impacting the pharmaceutical industry and other health innovation, as it could include intellectual property waivers, mechanisms to transfer technologies, and disclosure requirements in public procurement contracts.

Pressuring Countries to Enact a Global Minimum Tax. Having secured a 15% corporate minimum tax on many large firms in the Inflation Reduction Act, expect Treasury Secretary Janet Yellen to pressure other nations to keep their commitment to enacting their own minimum tax on multinational corporations – an early Administration ‘win’ on the global stage.

Great Wall of Congress May Force Biden to Stay Tough on China with a Little Help from Some Friends

Warming up to Xi, but not recoupling. Biden’s G20 meeting with Xi highlighted his desire “to find ways to work together on urgent global issues,” but the President has shown little sign of slowing efforts to disentangle critical American industries from Chinese supply chains. His administration recently announced new export control measures restricting China’s access to chips and chip-manufacturing equipment, and the Commerce Department will soon release preliminary finding in a prominent Chinese solar panel dumping case that could spur tariffs on imports when the President’s two-year moratorium ends.

Transforming Trump’s Tariffs into Biden’s Tariffs. The Biden Administration has so far maintained the Section 301 Tariffs that levied duties of up to 25% on hundreds of Chinese imports for national security reasons. However, the statutorily required four-year review of these duties, as well as ongoing legal actions and the December 31 expiration of several product exclusions, gives the Administration the opportunity  to reassess which products should remain protected. The comment period for the four-year review is open until January 17. With strong pressure from Biden’s base to maintain protectionist policies and both parties keeping the heat on China, expect firms to increase their lobbying efforts as decision time approaches.

Coupling With Taiwan. This month, the U.S. began talks with Taiwan aimed at strengthening trade and economic ties, with hopes for a pact as soon as next year. China has condemned the trade initiative,  which would be a boon to the U.S. agriculture and technology sectors, as Taiwan is the sixth-largest export market for U.S. food and agricultural products and the number one manufacturer and exporter of semiconductor chips in the world. The pact has the potential to ease the ongoing chip shortage.

Strengthening Indo-Pacific Ties. In the wake of the historic and encompassing Regional Comprehensive Economic Partnership (RCEP) trade agreement between the ten ASEAN countries and their six regional trading partners, including China, the Biden Administration will need to consider how it approaches trade liberalization in the Indo-Pacific. The recent Indo-Pacific Economic Framework may be a start, but it is far from a full-fledged free trade deal and India, a major player in the region, hasn’t signed on to its trade pillar, despite a recent visit by Treasury Secretary Janet Yellen. Biden has also been pushing for a digital trade agreement in the Indo-Pacific. Such an agreement would signal the U.S.’s commitment to strengthening ties in the region, especially economically, with an industry that is of strategic interest and commercial value.

Balancing Climate and Energy Security in European Relations

Boosting LNG Shipments to Europe…Or Retracting? Biden is trying to thread the needle between assuaging European allies who seek more LNG imports to supplant their reliance on Russian natural gas and the environmental justice advocates in his political base who disapprove of additional fossil fuel infrastructure. Biden has pledged to expand LNG exports to the EU to 50 billion cubic meters by 2030, though members of Congress from his own party are objecting, and some European officials are becoming perturbed by American “profiteering.”

Carbon Border Tax and Cleantech Subsidies Could End Biden’s Transatlantic Climate Camaraderie. Biden came into office hopeful for a Transatlantic alliance in climate policy, but it could become a climate clash as the EU enters the final stages of adopting a tax on carbon-intensive imports from countries – including the U.S. – that do not meet their imposed carbon emissions standards, starting in 2026. The tax will impact U.S. manufacturers of aluminum, steel, electricity, cement, and fertilizers that export to the EU. Here at home, Biden has indicated support for a carbon border tax of our own, and Senator Sheldon Whitehouse (D-RI) introduced legislation to do so in June. Meanwhile, European officials are becoming increasingly incensed by the domestic cleantech manufacturing subsidies and incentives embedded in Biden’s Inflation Reduction Act.

As Latin America Goes Left, Will Biden Go Along?

Navigating a Tricky Relationship with Mexico. Even if the border crisis headlines the bilateral relationship with Mexico, the country is also the United States’ third largest trading partner. Mexican President Andrés Manuel López Obrador (AMLO) has rocked the USMCA boat with some of his recent protectionist moves, including talk of nationalizing energy production and restricting GMO corn. While possibility of an all-out trade war seems unlikely, the Administration will have to choose how hard to push back against potential violations of the USMCA, and whether to prosecute potential treaty violations through relatively untested official channels, or keep things unofficial.

Freeing Hydrocarbons Even If the People Aren’t Free. The Biden Administration recently allowed Chevron to resume operations in Maduro-controlled Venezuela even as Senator Marco Rubio (R-FL) claims the Administration tried to oppose an Inter-American Development Bank loan supporting Guyana’s development of its energy infrastructure. As Congress shifts hands, expect more scrutiny of how Biden approaches energy production in the region.

Ensuring Access to Present and Future Resources. Newly elected leftist governments mean access to natural resources may be less certain: Colombia’s Petro seeks to leave oil behind; Peru’s Castillo has pushed to increase taxes on mining companies; Brazil’s Lula promised, in contrast to his opponent, to keep Brazil’s state oil company public; and Chile’s Boric contemplated a public lithium company. Indeed, Argentina, Bolivia, and Chile are discussing a “Lithium OPEC.” The Biden Administration has signaled its commitment to free enterprise in the region, but how willing it is to push back on these policy shifts is unclear, and ensuring access to these resources could conflict with Biden’s climate agenda in the region. While Biden has unveiled a framework for regional economic cooperation similar to its Indo-Pacific proposal, his administration has yet to demonstrate real enthusiasm for new or strengthened trade agreements in either region.

Biden’s Middle East Dilemmas

Pressuring Saudi Arabia on Oil Supply. After Saudi Arabia announced its support for OPEC’s cuts in oil production by two million barrels per day despite Biden’s attempt at mending ties with the de facto Saudi ruler, Biden declared there would be consequences. Potential repercussions could include military support reductions, arms sales cancellations, and enacting the “NOPEC” bill, which would classify OPEC as an illegal cartel and subject its members to U.S. antitrust enforcement. With mixed signals on whether OPEC will increase production soon, expect this relationship to remain as volatile as oil prices.

Reengaging In Nuclear Talks with Iran. With the U.S. condemning Iran’s brutal attacks on human rights protestors, Biden faces a challenging new dilemma: how can he continue his efforts to revive the Obama-era nuclear deal amidst some of the most widespread protests against the regime’s brutality in ten years? There are indications he has put the deal on the shelf for now, but a renewed deal was a key campaign pledge eagerly sought by many of his advisers.

Responding To Netanyahu’s Return. With Benjamin Netanyahu returning as Prime Minister of Israel, Biden will be working with a new (again) leader of the U.S.’s most important Middle East ally. The relationship between Biden and Netanyahu is decades-old and fraught with disagreements, including over the aforementioned 2015 nuclear deal with Iran, the necessity for a two-state solution, and the status of Israeli’s disputed territories. Now, as Netanyahu works to form a government, Biden’s Justice Department has launched “a rare, if not unprecedented” probe into a Palestinian-American journalist’s death, despite an already concluded inquiry by the State Department that found no intentional wrongdoing. Biden and Bibi are also likely to disagree over the value of the Abraham Accords, which the latter negotiated and views as the key to regional security. Yet the Biden Administration has displayed skepticism if not hostility to the Accords and their value in the region, even as they open trade and economic development between key countries in the region.

Critical Industries Have a Lot at Stake

Facing a divided Congress, President Biden will go his own way a lot more in the next two years, wielding the “phone and pen” of executive action on domestic policy and spending more time on foreign policy matters in which he has more autonomy to act. To advance and protect their organizations’ business and policy objectives, public affairs professionals should be prepared for the impact that Biden’s actions abroad may have for their industry, and how different interests and stakeholders can shape and influence those actions.

The Phone and Pen Are Back

Here’s What You Need to Know

When Congressional Republicans frustrated President Barack Obama’s agenda, he bluntly declared, “I’ve got a pen, and I’ve got a phone,” with which he pledged “to sign executive orders and take … administrative actions that move the ball forward.” With at least one chamber of Congress expected to shift to GOP hands, President Joe Biden will find himself with a similar predicament, and if his first year in office is any indication, he is not waiting to wield his phone and pen in ways that impact a wide range of businesses.

Biden has issued more than 100 executive orders since taking office – including more in his first year than any president since Gerald Ford – and that does not count numerous administrative actions taken by various federal agencies. Come January, with Republicans likely to gain control of the U.S. House and possibly the Senate, that number is all-but-assured to grow exponentially. Here’s what public affairs professionals need to know to anticipate how these actions could impact their interests.

How Biden May Put His Phone and Pen to Work

Declare A Climate Emergency. Even after passage of the Inflation Reduction Act, climate activists and members of Congress are pressuring Biden to issue an emergency declaration on climate change, which would allow the president to (1) halt crude oil exports, (2) limit oil and gas drilling in federal waters, and (3) direct agencies including the Federal Emergency Management Agency to boost renewable-energy sources.

Seize The Means of Energy Production. With gas prices rising, Biden has indicated he may invoke the Defense Production Act (DPA) in an effort to boost the U.S.’s oil-refining capacity, a hammer he has already wielded against the energy sector in other ways.

Extend The COVID Emergency. The COVID-19 Public Health Emergency (PHE) is set to expire on January 11, 2023, after the Administration extended it for the seventh time last week. With Congressional Republicans likely to scrutinize his pandemic response, particularly after Biden declared the pandemic “over,” and without another extension the PHE’s relaxation of many regulations could come to an end even as senior health officials seek additional funding to fight the virus.

Pressure States and Companies on The Culture Wars. Covid is not the only culture clash likely to see executive action. Under pressure from abortion rights activists, Biden could double down on commitments by his Task Force on Reproductive Healthcare Access, including the possibility he could declare a public health emergency on abortion access. Biden could also pressure states through Medicaid and other funding mechanisms to cover abortion access, leaving care providers, insurers, and employers caught between federal and state health officials. Biden may take similar action to ensure access to “gender-affirming care.

Forcing Social Impact on Financial Services Sector. More executives could see their compensation tied to how well their company is doing on environmental, social and governance (ESG) goals – with an emphasis on the environmental – if the Securities & Exchange Commission finalizes its Climate Disclosure Rule. Furthermore, the Department of Labor proposed a rule in October 2021 that could compel ERISA plan fiduciaries to incorporate more ESG investing, and in February issued a request for information seeking input from stakeholders about whether the agency should add climate-risk questions to Form 5500, the form plans are required to submit annually. Plan fiduciaries and other stakeholders may be impacted by the final rules and policy pronouncements that come from these actions.

“Ungigging” The Economy. Biden faces growing pressure from gig economy workers and labor unions to follow through on his 2020 campaign pledge to “Ensure workers in the ‘gig economy’ and beyond receive the legal benefits and protections they deserve.” That pledge could lead to executive action forcing companies like Uber, Lyft, and DoorDash to classify drivers as employees rather than independent contractors.

Return Of the Joint Employer Rule. Biden is also facing demands from unions and labor activists to broaden the legal test for determining when a company jointly employs franchise workers – something the Obama Administration attempted to do before courts stepped in. Biden’s National Labor Relations Board recently proposed a rule to broaden the joint employment relationship to include indirect and unexercised control over the terms and conditions of a job.

Increased Executive Actions Will Leave Businesses Fighting a Two-Front War in Washington

As we noted last month, a Republican takeover of at least one and possibly both chambers of Congress will bring new pressures and scrutiny to companies and industries that populists in the GOP view with increased skepticism. As Republicans launch investigations likely to hit a wide range of industries, President Biden will be counteracting Congressional intransigence with executive action, often leaving it to courts to sort out conflicting policy directions. Public affairs professionals cannot wait to prepare for this new landscape in which they will have to satisfy competing demands from each end of Pennsylvania Avenue. If you need help assessing these risks and which stakeholders are likely to influence them, feel free to contact us.

Can You Pass the Taiwan Test?

Here’s What You Need To Know

Nearly 3 million people tracked House Speaker Nancy Pelosi’s recent flight to Taiwan, making it the most-tracked flight of all time on Flightradar24. They all wanted to see whether she would land despite loud objections from the People’s Republic of China. That so many were compelled to watch the flight underlines how threats from China can quickly capture the world’s attention.

The saber rattling from Beijing was just the latest example of China’s growing aggression toward its neighbors, any of which could boil over into a confrontation and gain worldwide indignation similar to Russia’s recent invasion of Ukraine. Given how much more intertwined China is with the U.S. and global economies, such a confrontation would bring far more complex geopolitics into corporate boardrooms. As we noted this spring, “geopolitics is back as a central consideration to companies’ and industries’ political and reputational risks,” and Beijing’s response to the House Speaker’s visit is a reminder those considerations are not limited to a single region. Here’s what you need to know to prepare for a potential geopolitical eruption in Asia.

Beijing’s Getting Bolder, and a Boiling Point Could Scald Companies

China’s posturing toward other nations in the region has become increasingly confrontational in the past several years. Beyond its threats and shows of force towards Taiwan, China has been building and militarizing artificial islands in the South China Sea, patrolling and monitoring the waters around the Japanese-controlled Senkaku Islands, deploying troops and constructing a bridge along its disputed Himalayan border with India, enacting a draconian National Security Law and arresting multiple pro-democracy activists in Hong Kong, and implementing tariffs on and banning imports of certain goods from Australia over its push for an independent inquiry into the origins of the coronavirus. Not to mention its vile treatment of Uyghurs in Xinjiang.

China clearly is eager to flex its muscles, making it more likely the region reaches a boiling point that grabs headlines and puts companies doing business there in an uncomfortable and complicated position. These firms must prepare for a similar groundswell of pressure for companies to divest to the demands following Russia’s invasion of Ukraine. Considering the U.S. economy is far more co-dependent with China than Russia, the economic impact of divestment would be much greater, as could the political and reputational damage.

Critical Industries Have a Lot at Stake in China

In the face of an increasingly militant China, companies operating in the region are growing alarmed about the impact that a possible Chinese invasion of Taiwan – and rising geopolitics in the region generally – may have on their interests, as well as the supply chains that keep the global economy running. Economic entanglements across industries could also draw scrutiny and pressure.

From Electronics and Cars to Renewables and Drugs, Critical Materials Would Be Under Threat. Taiwan is the number one manufacturer and exporter of semiconductor chips in the world, accounting for over 60% of total global foundry last year. The Taiwan Semiconductor Manufacturing Co. – the world’s largest foundry and supplier of chips to major high technology firms such as Apple, Qualcomm, and Nvidia – has warned their factory would be inoperable under an invasion by China. Such an incident would worsen the ongoing chip shortage. Beyond semiconductors, as we’ve noted before, China controls much of the global production, supply, and processing capacity for critical minerals and metals. They also provide the world a lot of the active pharmaceutical ingredients needed for drug production.

Intertwined Financial Interests Make Divestment Pressures Difficult to Appease. Chinese firms have become substantial trading partners for U.S. oil and gas firms, made possible by market liberalizations and recently signed contracts for record amounts of LNG. Market liberalizations have also allowed U.S. banks greater exposure to the Chinese market. Five major U.S. financial firms alone have nearly $80 billion invested there. In addition, more than 20% of the value of all goods imported – totaling over $560 billion – to the U.S. hail from China. All of this financial engagement could come under pressure if Beijing breaches global norms at the wrong time, in the wrong way.

Here at Home, China Is Losing the Popularity Contest, and Companies Could Lose With Them

A record number of Americans today perceive China as the United States’ greatest geopolitical foe and favor getting tougher. Not surprisingly, more political leaders are listening. Members of both parties in Congress are advancing measures to strategically decouple from China, such as the recently passed CHIPS Act and last year’s Uyghur Forced Labor Prevention Act. On the campaign trail, Republicans and Democrats alike have leveled harsh rhetoric against China. Elected officials are also pushing for institutions like state pension funds and universities to divest from Chinese entanglements and raising concerns about China buying up American farmland. The stage is set for these attitudes and scrutiny to explode if Chinese bad acting reaches a new height.

Certainly, scrutiny on companies and other organizations trying to keep good relations with Beijing is nothing new, but if China’s aggression steps over a tripwire in the cultural zeitgeist, the political and reputational damage on firms could be far more devastating and long lasting than it has been in the past. Public affairs professionals will need to help their firms understand which policymakers and stakeholders could turn on them over ties to China. The right competitive intelligence can deliver that understanding and provide the insights you need to anticipate geopolitical disruption and the scrutiny it could bring.

Is Geopolitics Back?

Here’s What You Need To Know

Over 500 companies have withdrawn from or otherwise reduced their business relations with Russia since the invasion of Ukraine began, but, as a “hall of shame” being compiled by Yale University researchers notes, dozens more are “continuing business-as-usual in Russia.” The list and the accompanying news and social media coverage it has garnered are a clear indication that alongside the world’s rightful uproar at Russian President Vladimir Putin is a rising expectation that companies will cut ties with Russia in a similar fashion that we have seen in recent charged social issue debates here at home.

The scrutiny means at least for the moment, geopolitics is back as a central consideration to companies’ and industries’ political and reputational risks. For public affairs professionals helping navigate these risks, questions abound. Does the Russian divestment push signify a new norm forcing businesses to bring great consideration to where in the world they operate? Will demands to leave the Russian market last, or will the scrutiny fade as the blue and yellow flags on social media profiles do? Even if the public attention wanes, to what extent will new legal and regulatory requirements and policymaker interest remain?

For many industries, exiting the Russian market is not a simple task or as ethically and morally clear as social media may presume. Even for businesses that do not operate internationally, these questions bear consideration, as governments at every level – multilateral, federal, and even states and local – take action. As what could be a new era of geopolitics unfolds, here’s what you need to know.

Are You Now or Have You Ever Done Business in Russia?

A GLOBAL PUSH TO DIVEST FROM RUSSIA: European Union countries have made clear they intend to wage “total economic and financial war” to “cause the Russian economy to collapse,” according to French economy minister Bruno Le Maire. Norway’s largest pension fund, KLP Group, and Denmark’s AkademikerPension, for example, have announced plans to dump their holdings in Russia. The push is coming from beyond government, as well. Last week just outside of Paris environmental activists spray-painted the headquarters of major oil producer TotalEnergies in protest over the company’s lack of a plan to divest from its significant holdings in Russia. Beyond Europe, major Japanese-based automotive manufacturers Mitsubishi and Toyota, as well as UAE-based Dubai Aerospace Enterprise (DAE), have divested from their operations in Russia.

A BROAD WASHINGTON CONSENSUS IS PUSHING COMPANIES TO DIVEST: Few things today unite Republicans and Democrats, but the current situation with Russia and Ukraine has done it. The U.S. House of Representatives voted near-unanimously to revert U.S.-Russia trade relations back to what they were during the Cold War. This vote came on the heels of another House vote last week banning the importation of Russian fossil fuels, a move also ordered by the Biden Administration. Additionally, the U.S. House Financial Services Committee is now asking U.S.-based banks and other firms to give the panel detailed information regarding the steps they have taken to cease their business activities with Russia. Companies in a wide range of industries should expect similar questions from policymakers.

STATE PUBLIC PENSION FUNDS WIELD THEIR OWN POWER TO PRESSURE COMPANIES: While more symbolic actions by state governments – like dumping out Russian-sounding vodka brands – may have been swift, in the long term, it is the political power of state pension funds that could impact companies and investors the most. At least a dozen states and some cities have either implemented or are considering implementing their own measures against Russia. Most notably, California governor Gavin Newsom and Golden State legislators are taking steps to divest three major state pension funds – CalPERS, CalSTRS, and the University of California – from their collective $1.5 billion invested in Russian entities. Not all states are doing so, however. Florida Governor Ron DeSantis has remained quiet in response to pressure from both Republicans and Democrats in Florida’s congressional delegation pushing the state to divest.

Will Divestment Pressures Spread to Other Bad Actors? 

AMERICANS WANT COMPANIES OUT OF RUSSIA – BUT FOR HOW LONG? The rising pressure on companies to exit Russia is not surprising. Polling shows an overwhelming majority of Americans want American companies out of Russia, but remain “split on how long companies’ severed business ties with Russia should last.” That split expectation complicates businesses’ response, given the complexity of exiting a large economic market and the precedent it could set. That precedent comes as the world, geopolitically-speaking, is potentially at its most unstable and least peaceful state since the Cold War ended while the ease of scrutinizing both companies and the countries they operate in has grown exponentially.

IF COMPANIES SHOULD LEAVE RUSSIA, WHAT ABOUT OTHER COUNTRIES FACING WORLD OPPROBRIUM? Many analysts worry the Russian invasion of Ukraine could embolden China to increase its aggression against Taiwan. Such an invasion would complicate matters for U.S. companies that have already looked the other way as China faces sanctions over its treatment of the Uighurs and its suppression of Hong Kong. Furthermore, the Biden Administration’s pursuit of a renewed nuclear deal with Iran could reignite scrutiny of and divestment from companies doing business with that repressive regime. The potential reopening of Venezuela to calm oil markets could open a similar dilemma.

COMPANIES’ RUSSIA RESPONSE COULD SHAPE EXPECTATIONS FOR THEIR ACTIONS ELSEWHERE. As our firm’s founder and CEO Jeff Berkowitz discussed last fall on a podcast for the Global Business Alliance, companies were already facing pressure from activists and policymakers to divest from or remain committed to various countries and regions. The heightened scrutiny following Russia’s invasion will only make those pressures a larger concern, particularly as the growing number of ESG commitments made by companies meet this new geopolitical era and companies’ actions in response to Russia are likely to inform expectations for their actions regarding other geopolitical conflicts.

Amidst the Clamor, Breaking Up Is Hard To Do

For many businesses, exiting Russia is easier tweeted than done. Beyond the logistical and contractual complexities of exiting the world’s 11th largest economy, there are a number of legal, logistical, and moral challenges companies must consider. For pharmaceutical companies and agricultural suppliers, cutting off the Russian people from lifesaving and life-sustaining goods is an ethical quandary. Even less essential businesses “face a duty of caretoward their workers” that would be left behind, Politico notes. Indeed, many of those workers could face repercussions from Putin if their multinational employers leave Russia. In addition, as some firms such as Koch Industries have noted, Russia bankruptcy laws could enable Russia’s government or favored corporate proxies to seize their assets, literally enriching the government divestment is intended to impoverish.

Geopolitics Is Back, so Prepare for It To Stay for a While

Public affairs professionals will need to help their organizations determine if we are in a new normal where geopolitics is back, and whether such pressures will apply beyond the Russian invasion of Ukraine to other countries facing international censure. Those pros will also need to help their organizations determine if such scrutiny is ephemeral, a social action moment that will be surpassed by the next outrage, or a real moment when a long-term shift takes place.

Leaving a large economic market is a complex business decision not easily resolved in a tweet. Harmonizing that reality with the very real current scrutiny from consumers, advocates, and policymakers will be the challenging task ahead, not just on Russia but potentially in future geopolitical developments. To make the most informed and sound decision on whether to take a stand – or what stand should be taken – public affairs professionals will need the correct insights to identify who all their stakeholders are and how to understand their expectations and weigh the costs of associated with divestment.

Supply Chain Reaction

Here’s What You Need To Know

Will there be anything under the Christmas tree this year? If you follow the news, you’re probably worried supply chain issues will be this year’s Grinch. Beyond holiday fears, however, there are even bigger supply chain worries for a wide range of industries whose effects will reverberate long after New Year’s Eve.

A recent survey commissioned by Oracle found 82 percent of Americans are scared supply chain issues will “ruin their life plans,” and policymakers are taking notice. While COVID-19 complications have added strain, there are many other factors that have significantly contributed over time to the breakdown we’re experiencing today. As a result, organizations now face significant and compounding operational risks, and governmental policy pressure at the behest of the American people could bring even more challenges.

As public affairs professionals help companies and industries navigate this policy response, here’s what you need to know about how we got here and what happens next.

There Were Many Cracks in the Supply Chain Before COVID, and the Weight of the Pandemic Broke It

HOW WE GOT HERE: From aging ports to hard-to-find workers to high regulatory burdens, there were systematic issues imperiling the global supply chain long before the onset of the pandemic, including:

  • NO PORT OF CALL: The U.S. Federal Maritime Commission (FMC) expressed concerns that the quality of American ports threatened the security of the nation’s supply chain as early as 2015, warning “congestion at ports and other points in the nation’s intermodal system has become a serious risk factor to the relatively robust growth of the American economy and to its competitive position.” Indeed, no American ports made the 2020 World Bank/IHS Markit “Container Port Performance Index” ranking the top 50 global ports for quick and efficient ship turnaround.
  • TRANSPORTATION LABOR PAINS: In an effort to cut costs, railroads reduced their workforce by more than 22 percent from 2017 to 2021, and large rail companies have struggled to bring workers back amid rising consumer demand in recent years. Meanwhile, the trucking industry has repeatedly sounded the alarm about its desperate need for drivers. What was a 60,000-driver shortage before the pandemic has exploded to a projected 105,000-driver deficit by 2023, which industry representatives blame in part on months-long backlogs obtaining commercial driver’s licenses from state Departments of Motor Vehicles.
  • ALL SUPPLY CHAINS ARE LOCAL: Many import challenges center upon the management of ports at Los Angeles and Long Beach, which according to Reuters “handle the most ocean cargo of any ports in the United States, but are some of the least efficient in the world.” Experts say the lack of efficiency is in part due to local labor, zoning, and environmental ordinances, such as Long Beach prohibiting the stacking of more than two containers high to protect scenic ocean views (though this rule has been temporarily lifted to four containers high), the state’s controversial AB-5 labor law keeping independent truckers off the road, and state air quality regulations constraining the number of trucks allowed at warehouse facilities. Last week, California ports saw a record backlog of 111 container ships awaiting entry, despite operating 24/7 at the direction of President Biden. In fact, just 60 percent of the round-the-clock spots have been used to offload goods due to “burdensome” processes.

PANDEMIC PANDEMONIUM: The pandemic created new and exacerbated existing impediments to Americans’ access to needed materials that hinge upon the ever-changing conditions in foreign countries. In fact, a single case of coronavirus shut down China’s Ningbo-Zhoushan Port, causing a two-week shuttering of the world’s third-largest cargo port that serves as a “big gateway for Chinese exports … headed to markets in the U.S. and Europe.” With Americans already facing lengthy wait times for these key items, such lockdowns – like the increasingly stringent ones bringing factories in Vietnam to a screeching halt – have “paralyzed commercial activity and added stress to a strained global supply chain.”

As Americans Feel the Supply Chain Strains, Shifting Political Dynamics Mean More Pressure on Companies and Industries Operating Globally

THE GHOSTS OF GLOBALIZATION: According to The Wall Street Journal, for the past several decades, America’s financial system of robust credit and financial interconnectivity allowed companies to “adopt outsourcing and offshoring, just-in-time inventories and ‘capital light’ models that split design from production.” The COVID-era supply chain challenges are bringing scrutiny to these practices from policymakers, the media, and consumers. They are also bolstering corporate critics, who claim “monopolistic tendencies” in pursuit of big profits inflicted “choke points” throughout the supply chain, while industry consolidation has made shipping slower and more expensive.

FALTERING FIREWALL AMIDST NEW POLICY CONSENSUS: While Republicans have traditionally served as a free markets firewall against Democrats’ tactics to force the repatriation of American companies, there are now voices across the ideological spectrum proposing governmental actions to “reshore” critical materials and manufacturing. While some conservatives cite national security implications, others are calling for “common good capitalism,” as Sen. Marco Rubio (R-Fla.) calls it, that protects American jobs and economic security over corporate profits. This creates an unusual synergy with Democrats who have spent decades chiding American businesses they claim headed offshore to avoid high costs of labor and labor union influence, resulting in a momentum to do something that is hard for businesses to combat. While historically Republicans sought to repatriate American companies operating abroad by enticing them with tax reform, easing regulatory burdens, and loosening control of labor unions, Democrats have long championed punitive measures that would force companies to return stateside or face steep taxes and penalties. On the campaign trail and throughout his presidency, President Biden has advocated for a hybrid approach of credits and fees, punishing offshoring while incentivizing job creation at home with tax relief. The ultimate policy solution is likely to be a combination of carrots and sticks decided by a select few lawmakers amid razor-thin majorities.

RISKS IN RESHORING: With companies facing more questions about maintaining global supply chains, it is no surprise a recent Deloitte survey found 75 percent of companies are accelerating their plans to reshore. For those who actually end up doing so, the road home is lined with big expectations. Greater public scrutiny of corporate actions means these organizations will need to keep the promises they make on local investment and hiring when accepting the government incentivizes for their return. Meanwhile, would-be domestic competitors and investors who want to back them are hoping to take advantage of these same incentives to create new projects without all the costs and hassle of the repatriation process. In recent years, however, such benefits have become increasingly unpopular among the American people, so any government action that could be seen as a “handout” to corporations will indubitably invite public skepticism.

For public affairs professionals, the supply chain crisis presents both short-term and long-term challenges, from navigating current scrutiny to weighing reshoring in the long run. These are the kinds of risks Delve asses for our clients, ensuring them have the information they need to make the best decisions possible to navigate uncertainty. Whether your organization is enduring the pains of the current supply chain crisis or working hard to avoid the next one, we’re here to help turn them into opportunities.

Your Exclusive Guide to the Never-Ending “Infrastructure Week”

Here’s What You Need To Know

The last month in Congress looked a little like Groundhog Day as legislators moved closer than ever to passing major infrastructure investments, only to have the apparent consensus crumble over how and whether the bill should be linked to President Joe Biden’s broader “Build Back Better” reconciliation package.

For those wondering what happened and why the so-called “Infrastructure Week” seems to never end in Washington, our team of analysts dug deep to produce an important report for your consideration.

Digging Deep: Why ‘Infrastructure Week’ Just Won’t End details 10 of the biggest fights on the horizon – far beyond the sensational headlines of price tag squabbles and intraparty meltdowns. Our analysis instead focuses on the numerous unsettled debates beneath those headlines in which competing interests clash and the infrastructure debate will keep on going long after whatever bill is eventually signed into law.

As we explored the consequences of these proposals for a wide array of industries – energy, environment, FinTech, pharmaceuticals, transportation, telecommunications – several key themes emerged. Here’s what you need to know:

The Energy Transition Has Unlikely Opponents

The Infrastructure Investment and Jobs Act (IIJA) encourages industry to invest in technology and infrastructure that reduces emissions and greens the grid. But as is increasingly the case for a variety of alternative energy projects, such solutions face obstacles from the very environmentalists advocating for cleaner options. While the IIJA has been called the “most ambitious portfolio of carbon management policies in the world to date,” tools like carbon capture remain immensely controversial among green activists and their allies among lawmakers. Activists are similarly concerned about what they call “the hydrogen hype,” for which the IIJA provides significant support. Beyond these individual technologies, the bill would support a transmission line buildout to bring renewable energy from where it is best generated to where it is most needed. However, new authority granted to FERC by the IIJA is likely to face a variety of opponents including state regulators, environmentalists, and incumbent power producers.

President Biden’s Desire for Streamlined Permitting Clashes With His Efforts To Expand Public Participation

President Biden wants more infrastructure built more quickly. That’s why the IIJA seeks to streamline permitting. However, his administration also wants to expand public participation and include broader climate and environmental justice considerations into such decision-making, inevitably prolonging the process. Already, environmental groups are criticizing IIJA’s permitting provisions, complaining they “gut needed safeguards” and “curtail the way the public can weigh in on how projects building roads, laying pipelines, cutting timber, and mining for hard-rock materials are done.” Such groups are better-funded, better-organized, and more legally proficient than ever before, making them highly adept at using public comment periods and public engagement processes as a means of delaying and derailing infrastructure projects they oppose. That means they are likely to question any new limitations on public engagement in their legal challenges to permitted projects.

Being a Convenient Pay-for Can Cost an Industry Big

Lawmakers seeking to pay for their ambitious suite of proposals are targeting a variety of industries to help foot the bill for IIJA. For example, lawmakers proposed billions in new Superfund excise taxes on a dozens of chemicals, critical minerals, and metallic elements. The superfund taxes are the result of a “dozen years” fight to “hold polluters accountable,” and represent just how quickly a heated but seemingly settled issue can become a convenient pay-for when legislators seek to fund other priorities. In addition to the superfund provisions, pharmaceuticals, cryptocurrency “brokers”, and others all play undesired roles in funding the IIJA’s many initiatives. Organizations in these sectors were probably surprised to learn they would be responsible for covering the costs of one of America’s most expensive pieces of legislation in history, and that puts them – and their allies on Capitol Hill – at odds with IIJA.

For Some Long-sought Objectives, Passing the Bill Will Just Be the End of the Beginning, Not the Beginning of the End

IIJA seeks to advance several long-sought objectives that have run aground in the past due to unsettled debates about how to implement those initiatives. Even if IIJA passes, these challenges remain. One such area is IIJA’s electric vehicle provisions, which set the stage for fighting among states and localities for charging infrastructure. Similarly, the bill proposes to invest billions to fund initiatives to ensure access to drinking water free of contaminants such as lead and PFAS, as well as to “expand Internet access” to underserved and low-income communities. However, in both of these cases, significant implementation hurdles, and major regulatory uncertainty means even if IIJA passages, the communities targeted by the bill, and those who serve them, are unlikely to be able to tap into the IIJA’s funds in the near term.

Get an Information Advantage With an Exclusive Copy of Our eBook

No matter how long or what form it takes, the infrastructure bill will affect countless companies and industries. So, chances are it will affect your organization, too.

Smart public affairs professionals understand that to achieve desired results, they need to anticipate what’s next and organize support ahead of time. That’s why competitive intelligence is the foundation for any successful public affairs effort.

To dig deeper and better understand what comes next in the never-ending Infrastructure Week, click here to download the full report. As you prepare for the big fights to come, you’ll be armed with the information advantage you need to win what matters.