By Jon Taets, Anna Ready Blom and Paige Anderson
ALEXANDRIA, VA.—Today is election day, and there is a lot at stake for the United States and for the convenience industry, so we encourage you to get to the polls before they close this evening if you haven’t yet voted.
As is the case every four years, the presidential election is getting the most attention, and we will take a look at what the election results could mean for some of the top issues affecting the convenience and fuel retailing industry. What would a second term for the Trump Administration or a first term of a Biden Administration mean for payments, fuels and labor policy?
A Second Trump Term
You can expect a second term Trump Administration largely to be status quo in these issue areas. Back in 2017, President Trump supported an effort by congressional Republicans to overhaul parts of the Obama-era Dodd-Frank legislation. Originally, House Republicans included language to repeal the Durbin Amendment. That effort was defeated before reaching the floor in large part due to the grassroots activity of the convenience store industry and other retail groups. It’s not clear whether the Trump Administration will take a position on the reforms NACS is seeking on payments or what that position would be.
On fuels-related issues, the administration was very active during its first term. From expanding domestic production of oil and gas, expediting the permitting process for pipelines, rolling back or streamlining Environmental Protection Agency (EPA) regulations, and trying to navigate issues surrounding the Renewable Fuel Standard (RFS), the EPA was very busy during the past four years. NACS supported efforts to improve and streamline EPA regulations in the agency’s overhaul of several key fuels-related regulations that were included in the Streamlining Rule finalized in October. In addition, EPA granted a one-pound waiver to allow E15 to be sold year-round, which NACS supported. NACS also worked with EPA to increase transparency and improve the small refinery exemption process (SRE). Recently, EPA denied more than 50 petitions seeking SREs and pushed back attempts to move the point of obligation under the RFS. NACS worked with other key stakeholders to stop this effort by a small group of merchant refiners. A second-term Trump Administration will most likely continue to try and thread the needle between two powerful stakeholders—the oil and gas industry and the ethanol industry. NACS and the fuel retailing community will continue to play a pivotal role in balancing these interests with the interests of consumers.
Labor policy is one area where the administration has tried to be much more helpful to our industry and the business community in general. The White House attempted to reverse two significant Obama Administration rules meant to aid labor unions and their allies. Early in Trump’s first term after appointing new members to the National Labor Relations Board (NLRB), the board voted 3-2 to reverse a 2015 decision that expanded the definition of a “joint employer,” making it easier for workers at franchises to sue the corporate parent for alleged labor violations. While that move was ultimately reversed due to conflict of interest accusations against one of the new board members, the NLRB moved earlier this year to issue a new formal rule reversing the 2015 ruling.
The administration made a similar effort at the Department of Labor (DOL), which has its own joint employer rule. In January 2020, DOL issued a rule in line with the NRLB rule; however, much of that rule was recently invalidated by a federal judge, who determined that the procedures DOL used violated the Administrative Procedures Act, which governs agencies’ abilities to write rules. In another win for the business community, the Trump DOL also withdrew a rule the Obama Administration wrote which would have dramatically increased the salary threshold for applying the white-collar overtime rules. The eventual replacement rule the labor department put in place is much more reasonable and in line with comments NACS filed behalf of the industry. If Trump is re-elected, we can assume the DOL may take another run the DOL joint employer rule and continue its pattern of more business-friendly decisions.
A Biden Administration
As one would expect, there are distinct and differing visions on most of these policy areas should former Vice President Joe Biden win the presidency. In terms of payments policy, there is a likelihood that Democrats would be more amenable to addressing the anticompetitive nature of the credit card networks, which ultimately hurt American consumers. Biden was vice president in 2010 when President Obama championed and ultimately signed the Dodd-Frank financial reform legislation that included the Durbin Amendment. It is possible that a treasury secretary and a Federal Reserve chair under a Biden Administration may be more open to industry-led efforts to bring more fairness and competition to the payments space. Additional reforms could be possible, especially if Democrats win the Senate majority.
The starkest contrast between the two presidential candidates is in the area of fuels policy. Addressing climate change is a top priority for Democrats and will be so in a Biden Administration. While little may change in the area of renewable fuels, attention will shift to alternative transportation fuels and zero-emission vehicles and the electrification of our transportation sector. Biden has voiced support for the Green New Deal and has described it as a “crucial framework for meeting the climate changes we face.” However, while on the campaign trail in competitive states such as Pennsylvania, Biden has delivered a more moderate message in areas such as fracking and support for biofuels in the Midwest.
Under a Biden Administration, we can certainly expect a much-less-friendly Department of Labor and one much more akin to what we saw during the Obama Administration. It is likely that a Biden labor department will seek to return to the Obama-era policies covering the joint-employer rule and the overtime regulations. Making more changes to both of those rules would require full administrative rulemaking processes, meaning they won’t happen immediately, but efforts to move them along would likely start early in the new administration’s term once a new labor secretary and other key positions are confirmed. We also can expect the new NLRB, under a Biden-appointed chair, to seek to reverse the joint-employer rule. Though much like the DOL rules, it will take more time to reverse since the Trump NLRB used the formal rulemaking process for the joint-employer rule. In addition to attempting to reverse those Trump Administration actions, it is possible that Biden may seek to increase the federal minimum wage. That wage was last updated in 2007 when President Bush signed an appropriations bill including stepped increases, which ultimately set the federal minimum wage at its current rate of $7.25 per hour in 2009. Many states and localities already had, or have subsequently instituted, minimum wages higher than the federal rate. It would not be surprising to see a Biden Administration seek to increase the federal wage to as much as $15 per hour.
As you can tell there are some stark differences in what we would expect to see depending on which candidate emerges as our next president. This has been a fairly high-level overview of what the NACS government relations team would expect to see in just three policy areas important to our industry. There are nearly innumerable other policy areas important to our industry, members and you as individual citizens. We encourage you to take the time to investigate both candidates and make an informed decision with your vote on November 3.
Editor’s Note: This article appears in the “Inside Washington” column in the November issue of NACS Magazine.
Jon Taets, Anna Ready Blom and Paige Anderson all serve as director of government relations for NACS.