Until the Trump administration submits Obama-era land use rules to Congress for approval, those regulations aren’t actually in effect and can’t be enforced to protect a chicken-like bird in 10 Western states, a legal group argues.
And even if a government regulation benefits the public interest, a federal agency’s unwillingness to submit it for approval as required by the Congressional Review Act places the rule on tenuous legal footing that could undermine conservation efforts, two lawyers with the group say.
Whether various interests argue an agency’s regulations are beneficial or harmful, those rules should face congressional scrutiny before going into effect, the lawyers told The Daily Signal in interviews.
To drive this point home, Pacific Legal Foundation filed both its suits at the same time in April.
Instead of allowing “unaccountable, unelected bureaucrats” to call the shots on federal rulemaking, Congress should have the final say in determining the merits of regulations that affect average Americans, the legal organization argues.
“If a court were to say that the Pacific Legal Foundation is correct and that the rules must be submitted to Congress,” Heritage Foundation expert Paul Larkin told The Daily Signal, “that would carry greater respect with administrative agencies than it would if the executive branch were to make this argument. A court ruling carries more weight.”
How the Law Works
President Bill Clinton signed the Congressional Review Act into law in 1996 after Congress passed the legislation under the leadership of House Speaker Newt Gingrich.
The law calls for regulatory agencies to submit every rule to both houses of Congress and the Government Accountability Office before the rules can go into effect. Congress then approves or disapproves the proposed rules with up-or-down votes decided by a simple majority.
Under the law, during the first 60 legislative days after receiving a rule, Congress may vote on resolutions of disapproval to overturn the rule without a Senate filibuster and with limits on the amount of time the Senate may take to debate.
A member of the House and Senate each would have to introduce a joint resolution of disapproval. Both the House and Senate versions are subject to a simple majority vote if acted upon within the 60-day window.
Congress sends approved resolutions to the president for his signature or veto. If the president signs, the rule is voided and any “substantially similar” rule may not be adopted in the absence of a new law authorizing it.
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Early last year, Pacific Legal Foundation joined with The Heritage Foundation, Competitive Enterprise Institute, and other partners in an effort called “Red Tape Rollback” to promote use of the Congressional Review Act to eliminate costly and illegal regulations.
“When Congress imposes a rule people don’t like, they can be voted out of office,” Jonathan Wood, a Pacific Legal Foundation lawyer who specializes in environmental law and property rights, told The Daily Signal. “But when bureaucrats impose these rules without democratic oversight, there is no way to hold them accountable.”
That’s why Wood is spearheading the two lawsuits calling for strict enforcement of the Congressional Review Act.
Protecting the Greater Sage Grouse
One of the legal cases challenges land use restrictions imposed by Obama’s Interior and Agriculture departments on federal lands to protect a chicken-like species of bird known as the greater sage grouse.
The latest figures from the Interior Department’s Bureau of Land Management show that the greater sage grouse occupies more than 170 million acres in 11 western states: North Dakota, South Dakota, Wyoming, Nevada, Oregon, Utah, Colorado, Montana, Idaho, Washington, and parts of California. Washington, however, is not affected by the regulations because its bird population is concentrated on private land.
Wood represents a cattle ranching operation in Oakley, Idaho, that could be subjected to federal restrictions on its grazing operations once the sage grouse rules are fully implemented.
On Sept. 22, 2015, Obama’s Fish and Wildlife Service announced that the greater sage grouse would not be listed as either threatened or endangered under the Endangered Species Act because of the cooperative efforts of state officials and private landowners.
But on the same day, the Agriculture Department’s Forest Service and another part of the Interior Department, the Bureau of Land Management, rolled out what Pacific Legal Foundation describes as “heavy-handed sage grouse regulations” that “impose severe restrictions on federal land use in the West.”
A listing under the Endangered Species Act would “have been even worse” than the land use rules, Todd Gaziano, Pacific Legal Foundation’s chief of legal policy and strategic research, said in an interview.
That law imposes restrictions on both public and private lands, while the land use rules apply only to public lands, Gaziano said.
Even so, the rules remain burdensome and problematic because for historic reasons most ranchers depend upon access to public land for a living, and the federal government controls most of the land in Western states, he said.
“That’s something people in the Eastern states don’t often understand,” Gaziano said, adding:
The federal government owns far too much of the land out West, but the concession Congress made in exchange for restricting available private property was to encourage and protect public use of the federal land by federal law.
Westerners purchased available homesteads and established their ranch boundaries with the expectation that they could reasonably rely on the vast federal lands that surrounded them for a significant portion of their grazing range. It’s fundamentally unfair to prevent most private ownership of Western land and then radically change the historic terms for the use of public land.
The Effect on Ranchers
The rules on the sage grouse undermine state-level conservation that benefited ranchers who rely on federal lands for their living, Pacific Legal Foundation argues in its suit:
Instead of considering the plans developed by the states, which took into account unique aspects of each individual state and its needs, the plans create a cookie-cutter approach that almost mirrors the stringent restrictions under the Endangered Species Act. This is despite the finding from the Fish and Wildlife Service that the greater sage grouse was not threatened or endangered.
Congress has repeatedly criticized the rules and tried to overturn them through the traditional legislative process. However, the agencies’ unlawful failure to submit the sage grouse rules has deprived Congress of its best opportunity to review—and strike down—the rule.
Wood represents brothers Douglas, Don, and David Pickett, who own the ranching operation in Idaho. Although the sage grouse rules have not been fully implemented, they have become a source of consternation for the three brothers, Wood told The Daily Signal.
“Last year, the Forest Service sent biologists out to study their allotment and grazing practices,” Wood said. “Based on that study, the Picketts’ allotment [of land] has been identified as valuable habitat for the sage grouse.”
“Consequently,” he said, “the Forest Service has already warned them that restrictions are coming, although they haven’t been announced yet. Of course, the resulting uncertainty also harms the Picketts, who have to make decisions today that affect grazing two, three, or five years down the road.”
Good Rules Beset by Uncertainty
The other legal case involves a conservation plan in Kansas set up to keep a bird called the lesser prairie chicken off the endangered species list.
An alliance of county governments called the Kansas Natural Resource Coalition developed the plan, which the Fish and Wildlife Service made possible through a rule called the Policy for Evaluating Conservation Efforts When Making Listing Decisions. This PECE rule, as it is widely known, promotes conservation initiatives at the local level where government officials, property owners, and environmental groups collaborate to meet goals.
Although the program benefits from a broad cross section of support, there’s one problem: Interior did not submit the PECE rule to Congress.
“Unlike the sage grouse rules, the PECE rule is a popular, bipartisan, and successful conservation rule,” Pacific Legal Foundation’s Wood said, adding:
Congress shouldn’t use the Congressional Review Act to shoot it down. But the agency’s failure to submit the rule is still problematic. It means that the rule cannot lawfully go into effect and, thus, no one can rely on it.
The basic idea behind PECE is to provide incentives to states, property owners, and environmental groups to work together to conserve species. It rewards those efforts by avoiding the need to list the species under the Endangered Species Act. This cooperative approach has played a critical part in the decision to avoid listing the lesser prairie chicken, which are found throughout five central states [Kansas, Oklahoma, Texas, New Mexico, and Colorado].
Environmentalists have long pushed for the lesser prairie chicken and other species in the Permian Basin to be listed under the ESA [Endangered Species Act], which would shut down energy production. So far, those efforts have failed because the PECE rule has successfully encouraged collaborative conservation efforts to protect the species, while avoiding the need to list them.
The Permian Basin is an oil- and gas-producing region extending across the Western part of Texas into Southeastern New Mexico.
‘Catch-22’ Until Rule Submitted
Despite the success of the PECE rule, the Interior Department’s failure to submit it to Congress creates a level of uncertainty on the part of local residents who have demonstrated a willingness to participate in conservation initiatives, Wood laments.
“Until the agency submits the rule, our clients are in a Catch-22. They must show their conservation plan is certain to be implemented and succeed at protecting the species,” he said.
“But, by not submitting the rule [to Congress], the agency has taken away the main incentive for people to participate, making it much more difficult for our client, the Kansas Natural Resource Coalition, to show that certainty. Until the rule is submitted, any listing decision based on it is vulnerable to litigation. We are trying to save the agency from itself by dealing with this problem proactively and avoiding more, unnecessary litigation down the road.”
So why doesn’t Interior just submit the rules at issue?
“Do you know how easy it would be for the federal government to end our lawsuit [in the PECE case]?” Gaziano asked. “They just need to send the rule to Congress. No one is going to overturn it, because everyone likes it, and Trump could threaten to veto if there is an effort to try an overturn it.”
“Our clients will be happy, we’ll be happy, the federal government doesn’t even need to admit there is anything wrong.”
The Daily Signal asked the Interior Department why the agency simply would not submit the rules for congressional approval; the agency referred the request to the Justice Department.
A Justice Department public affairs official, Wyn Hornbuckle, responded in an email message: “As is our general policy, the department declines to comment on matters that are in active litigation.”
The Daily Signal also asked the Forest Service why it would not submit the rules for congressional review. Dru Fenster, the agency’s acting national press officer, said in a phone message that it doesn’t comment on pending or ongoing litigation.
Congress Reasserts Authority
Last August, Interior Secretary Ryan Zinke announced his intention to press ahead with reforms to the sage grouse rules.
In cooperation with governors, the Bureau of Land Management developed proposed reforms that were published earlier this month. The bureau will take comments on these proposals until Aug. 9, then publish a final environmental impact statement and land use plan amendments by October.
Larkin, a senior legal research fellow with The Heritage Foundation who has written extensively on the Congressional Review Act, said he is pleased to see members of Congress reasserting their authority over agencies by sinking rules they view as misguided.
“The whole point of the Congressional Review Act is to nullify bad rules before they go into effect,” Larkin said. “As a general matter, I would say it is certainly appropriate for private parties to challenge rules that were not submitted to Congress.”
Larkin identifies four different scenarios where the law is applicable. One involves a set of rules the Trump administration would like to see overturned; another involves rules that are viewed as beneficial but are in need of congressional approval.
Agencies also have the option to withdraw rules on their own, and private parties such as Pacific Legal Foundation may litigate to force agencies to seek congressional review.
Wood said the Kansas case demonstrates that the problem of noncompliance with the Congressional Review Act isn’t limited to enforcement of controversial rules that Congress likely would strike down if given the opportunity.
The failure of agencies to abide by the law “needlessly puts a cloud of uncertainty” over beneficial rules with popular support, the Pacific Legal Foundation lawyer said.
“There is a segment of the environmental movement that does not like the PECE rule,” Wood said. “They favor heavy-handed regulation and litigation, an approach that creates conflict but fails to accomplish real conservation.”
“However, there are a lot of conservation groups that participate in these conservation plans. They too have a stake in ensuring that the rule is submitted to Congress as required by the Congressional Review Act, so that their work can continue.”
Gaziano said he isn’t sure why the Trump administration has not moved to end the lawsuits by simply submitting the rules to Congress.
In the case of the greater sage grouse, he speculated, the administration might be concerned Congress will not overturn the rules.
“But that’s not how the law works,” Gaziano said. “It’s not up to an agency to decide whether Congress will or will not overturn a rule submitted under the Congressional Review Act. Once any rule is submitted, the next step is up to Congress. There could be a debate, pressure, concessions. That’s called democracy. That’s called compromise and accountability.”