Federal Appeals Court Rejects Effort to Compel Amended Grizzly Bear Recovery Plan

A federal appeals court turned away Jan. 19 a case that sought to force the U.S. Fish and Wildlife Service to update its recovery plan for the grizzly bear. The decision cast recovery plans as being outside the scope of a federal statute’s provision allowing for petitions to amend agency rules.

The Center for Biological Diversity filed a lawsuit seeking to compel amendment of USFWS’ framework for managing Ursus arctos horribilis after the agency rejected its 2014 petition. The Center asked USFWS to expand the grizzly bear recovery area to Arizona, California, New Mexico, and Utah.

The agency denied the environmental advocacy organization’s request on grounds that an Endangered Species Act recovery plan is not a “rule” under the Administrative Procedure Act. USFWS also said that it had focused recovery efforts only on regions of the country where the animal was present in 1975, the year grizzlies were added to the list of threatened and endangered species.

A federal court in Montana upheld the agency’s decision, holding that recovery plans are not APA rules. U.S. District Judge Dana Christensen’s Dec. 2020 decision said that ESA recovery plans do not implement law or policy.

“[T]he Center’s argument—in sum, that a recovery plan is a rule because it implements the statutory requirements for a recovery plan—is circular and therefore unpersuasive,” the court declared. “A recovery plan does not implement conservation policy because it does not, in and of itself, create change; it doesn’t put itself into effect.”

The net result of the analysis, Christensen argued, is that “the Center’s so-called ‘petition’ is simply a solicitation letter for which the Service had no legal obligation to respond (and correspondingly, its denial letter creates no rights or obligations and there is no final agency action).” As a result, the court lacked jurisdiction to order USFWS to respond to the petition.

Two judges on a panel of the U.S. Court of Appeals for the Ninth Circuit affirmed Christensen’s ruling.

“The caselaw makes plain that adoption of a recovery plan is not agency action by which rights or obligations have been determined, or from which legal consequences will flow,” wrote senior U.S. circuit judge Andrew D. Hurwitz. “The Endangered Species Act does not mandate compliance with recovery plans for endangered species.”

Hurwitz’ opinion was joined by Judge Danny J. Boggs of the U.S. Court of Appeals for the 6th Circuit.

Judge Jennifer Sung, who joined the court last year, dissented.

USFWS first issued a recovery plan for U. arctos horribilis in 1982. The agency updated it in 1993, but not since.

House of Representatives clears REINS Act

The Republican-dominated 115th Congress has launched an assault on the federal government’s system of regulation. A bill passed by the House of Representatives on Jan. 5 would require Congress to approve all administrative rules, including those that limit pollution. Image courtesy Wikimedia.

Republicans eager to take a wrecking ball to the system of administrative law in place for seven decades have moved the second of three bills central to that effort through the U.S. House of Representatives.

The majority GOP pushed through the proposed “Regulations From the Executive in Need of Scrutiny Act” Thursday on a 237-187 vote.

Before doing so legislators adopted several amendments, including one by Rep. Steve King, R-Iowa, that subjects all existing regulations to the requirements that would be imposed by the bill and another by Rep. Luke Messer, R-Ind., that would require agencies to offset the costs of new regulations by repealing or amending those already in effect.

The House rejected Democratic amendments that would exempt regulations that affect children’s health, protect public health and safety, reduce the concentration of lead in drinking water, and assure the safety of children’s toys.

Affecting most regulations issued by federal agencies that might cost business at least $100 million per year in compliance costs, and establishing a 70-day period in which Congress either approves the rule or renders it void, the bill flips on its head the system by which Presidents and their appointees have administered statutes since the 1940s.

Under current law a regulation is valid unless Congress nullifies it, something that is possible to do but rarely accomplished.The existing system of law that governs the way in which all agencies write regulations also provides safeguards to assure that public opinion and appropriate commercial, scientific, or technical information is considered by agencies. The Administrative Procedure Act of 1946, provides for comment periods and required time intervals between proposed and final regulations. Judicial review of regulations is also available in most cases.

By delegating rulemaking to agencies staffed by professional civil service members, Congress has traditionally recognized that those federal government institutions and employees are better suited to write regulations that can often be technical in nature and involve extensive development of a factual record.

H.R. 26 reverses that longstanding approach and instead mandates that Congress, the most politically attuned entity of the federal government, deliberate and decide on the appropriateness or necessity of a regulation.

The bill would also severely limit the time available to Congress to accomplish the task. Aside from the 70-day approval limit, H.R. 26 would also limit the time of debate for any rule under consideration.

Given that it is not unusual for an administration to propose more regulations than there are legislative days in a Congressional session, it is likely that Congress would not be able to keep up with the flow of requests to approve new regulations.

Some critics say that H.R. 26 also sets up a potential constitutional crisis.

First, the measure might constitute an invasion by Congress of the President’s authority to “faithfully execute the laws,” as demanded by Article 2 of the Constitution.

Second, H.R. 26 would establish a form of a legal device called the legislative veto, which the Supreme Court has twice ruled unconstitutional. As explained by Professor Ronald M. Levin of Washington University in St. Louis, an expert on administrative law:

“The problem with the REINS Act is that, with regard to major rules, it would accomplish virtually the same result as the “traditional” one-house veto—namely, it would enable a single house of Congress to nullify an agency rule, regardless of the wishes of the other house, let alone the President. The question, then, is whether the Supreme Court would accept what amounts to a 180 degree change of direction if the one-house veto were repackaged in a different format, even though the risks of unchecked action by the legislative branch would be as great in the later version as in the earlier one. My suggestion is that it would not.”

Other constitutional law scholars have disagreed with this perspective, but at minimum the issue of the validity of the REINS Act would set off a long litigation battle that might pit a current or future President against Congress.

Finally, as David Goldston, a historian and former Congressional staff member now affiliated with Natural Resources Defense Council, wrote Jan. 4, it is possible a federal court would order a regulation to be issued by an agency even as Congress refuses to approve that regulation.

“Under the Constitution, a court presumably can’t require Congress to act, so the statute could not be enforced,” Goldston wrote. “But it also would not actually have been repealed.”

The GOP’s first assault on the regulatory system during the 115th Congress came Jan. 4 as H.R. 21, the so-called Midnight Rules Relief Act, cleared the House of Representatives. That bill would give Congress the power to revoke, in one fell swoop, most regulations finalized by the Obama administration since May 2016.

A Senate version of the “Midnight Rules Relief Act” has been referred to that chamber’s Government Affairs and Homeland Security Committee. A militant regulation skeptic, Ron Johnson of Wisconsin, chairs that committee.

Legislators in the U.S. Senate will also consider the proposed REINS Act. S.21 was introduced on Jan. 4 and is sponsored by Republican Rand Paul of Kentucky and 27 other senators.

President-elect Donald J. Trump has said that he will sign the proposed REINS Act if it reaches his desk.

The last bill in the Republicans’ anti-regulatory triumvirate is H.R. 5, which is styled as the “Regulatory Accountability Act of 2017.”

That measure would increase the procedural hurdles to rulemaking and forbid federal judges from deferring, in some circumstances, to agency interpretations of statutes.

What does Justice Scalia’s passing mean for environmental cases at Supreme Court?

The death Saturday of Justice Antonin Scalia at age 79 is likely to have a significant impact on the environmental law docket at the U.S. Supreme Court.

First, the significance of the stay against the part of the Obama administration’s Clean Power Plan that deals with existing coal-fired electric plants, issued by a 5-4 vote that had Scalia supporting the request by utilities and a coalition of anti-regulation states to block the rule, is reduced. With a presumed 4-4 tie on the question whether the Clean Power Plan is consistent with the Clean Air Act and the Administrative Procedure Act (and the U.S. Constitution, to the extent a Tenth Amendment argument is mounted by challengers), any decision in the litigation by the U.S. Court of Appeals for the District of Columbia Circuit is likely to be affirmed. The D.C. Circuit has to be assumed inclined to uphold the carbon dioxide rules; a significant majority of the judges on that bench were appointed by Democratic Presidents and the assigned panel previously rejected the stay application.

Should President Obama obtain Senate confirmation of a nominee to replace Scalia before his term expires next January, it’s at least somewhat likely that appointee would uphold the rule. Should the Republican-dominated Senate succeed in blocking any replacement until after the next President’s term starts, as the chamber’s majority leader has said the GOP will try to do, the outcome would likely depend on the party affiliation of the election winner. A Republican President would likely withdraw the Clean Power Plan, or settle the litigation on terms favorable to the states and industrial interests contesting it in the D.C. Circuit, even before the litigation challenging it arrived at the Supreme Court. Failing that, a Republican-appointed justice could be expected to take a skeptical perspective on the Clean Power Plan.

Two other significant environmental cases await the Supreme Court’s decision on whether to grant petitions for certiorari. The question whether to accept both is probably impacted by the vacancy created by Scalia’s death.

Scalia, early in his career as a Supreme Court justice, defended the iconic Chevron rule that requires courts to defer to agency interpretations of ambiguous language in statutes. But that willingness to defer to agencies seems to have lessened as the justice’s time on the bench proceeded. As Professor Dan Farber wrote Feb. 15 on Legal Planet:

“There are only three cases in which the Supreme Court has ever held that a statute’s interpretation of an ambiguous statute was unreasonable, all three written by Scalia: Whitman v. American Trucking, UARG v. EPA, and Michigan v. EPA.  In all three cases, the ‘unreasonable’ agency was EPA.”

Scalia was the author of all three.

Moreover, Scalia had shown a willingness to look harshly on law that tended to favor environmental protection. He wrote several opinions that reduced the ability of environmental groups to file lawsuits challenging federal policy, for example, and he also was the author of a plurality opinion in a 2006 decision that would have, absent a moderating concurrence by his colleague Anthony Kennedy, drastically reduced the U.S. government’s regulatory power over wetlands and streams.

It seems plausible, then, to suppose that Scalia had developed a greater willingness to reject the ways in which agencies, especially those tasked with enforcing environmental laws, read federal statutes. In the two cases that are now subjects of cert petitions, that perspective may have made a difference in whether the court grants review and in the outcome.

Chesapeake Bay is shown in this image obtained by the LANDSAT satellite.

The first of these two cases involves efforts to clean up the  64,299 square-mile large Chesapeake Bay drainage basin. In a July 2015 decision the U.S. Court of Appeals for the Third Circuit rejected attacks on the Total Maximum Daily Load designations for the bay. The Obama administration issued the pollution limits in 2010 under an agreement with environmental organizations who had sued the agency for failure to finalize them.

The TMDLs, which apply to nitrogen, phosphorus, and sediment loading into the beleaguered bay, are a tool made available by the Clean Water Act. They are imposed by EPA as a supplement to point source emission limits after the agency approves water quality standards created by a state for an affected water body or, if it rejects the state-based pollution limit, imposes its own.

On Nov. 6 the American Farm Bureau Federation and several other agriculture organizations asked the Supreme Court to hear the dispute. In their cert petition the groups argued that EPA’s decision to issue the TMDLs for Chesapeake Bay sets a precedent that could allow expanded federal power over land use all over the country. The groups base this assault on the TMDLs on a claim that EPA’s interpretation of the Clean Water Act is inconsistent with Congress’ intent. In particular, the agriculture groups argue that EPA cannot allocate responsibility to comply with the TMDLs for nitrogen, phosphorus, and sediment among multiple sources of those pollutants and must, instead, limit itself to specifying the maximum amount of those pollutants that can enter the bay.

As a member of the Supreme Court’s politically conservative bloc and as a jurist who has shown a willingness to rigorously scrutinize EPA’s reading of environmental laws, Scalia might have been inclined to find this argument convincing enough throw out the TMDLs. While there may still be four votes to grant the cert petition, his absence probably means there are not five votes to reverse the Third Circuit decision.

The case is American Farm Bureau Federation v. U.S. Environmental Protection Agency, No. 15-599.

Tongass National Forest – photo by Mark Brennan

Another dispute, this one involving Alaska’s 16.8 million acre Tongass National Forest, may also be affected by Scalia’s death. There, Alaska has asked the justices to review a decision by the U.S. Court of Appeals for the Ninth Circuit that invalidated a George W. Bush administration regulation exempting the Tongass from the Roadless Area Conservation Rule.

RACR is a regulation imposed by the administration of President William Jefferson Clinton that limits development, especially logging and road construction, in wilderness-quality areas of national forests. The Clinton-era U.S. Department of Agriculture Forest Service decided that the importance of preserving roadless tracts in the Tongass outweighed the economic consequences that followed from selling less timber from that forest in the future.The agency thus foreclosed about 90 percent of future planned timber harvests on the Tongass.

In December 2003, the Forest Service reversed that finding and decided that the economic value of timber in the Tongass exceeded the environmental value of the roadless areas. The Bush administration acted after Alaska had challenged RACR on the merits but before the validity of RACR was ultimately upheld by the federal courts of appeals based in San Francisco and Denver.

The Ninth Circuit decided that the Bush administration’s Forest Service changed its perspective on the relative value of roadless areas in the Tongass without providing a sufficient justification. Relying on the Supreme Court’s decision in a case called Federal Communications Commission v. Fox Television Stations, Inc., in which Scalia wrote the majority opinion, the en banc panel held that the agency had disregarded its earlier factual findings about the importance of roadless area conservation without enough explanation.

Alaska’s cert petition argues that a change in political philosophy that occurs when an administration of a different party assumes power is enough justification for it, a point the Ninth Circuit panel acknowledged, and that no other reason is needed to support a change in a regulation.

Alaska’s attorneys may have hoped that Scalia’s vote, along with that of the other four conservative justices, would be enough to save the Tongass National Forest exemption from RACR. Without Scalia’s vote, it is less likely that five justices will agree that the Ninth Circuit got it wrong and, therefore, possibly less likely that the requisite four justices will vote to grant review.

The case is Alaska v. Organized Village of Kake, No. 15-467.

Ninth Circuit rejects Tongass National Forest exemption to Roadless Rule

A federal appeals court has turned aside an attempt to exempt Alaska’s Tongass National Forest from a nationwide regulation protecting roadless areas.

Judge Andrew Hurwitz, writing for a majority of eleven judges sitting as an en banc panel of the U.S. Court of Appeals for the Ninth Circuit, concluded that the effort to prevent the Roadless Area Conservation Rule from applying to the country’s largest national forest violated the main federal law that governs agency rulemaking.

The majority held July 29 that the U.S. Department of Agriculture, the parent agency of the Forest Service, had reversed a finding made during the process of enacting RACR that exempting the Tongass “would risk the loss of important roadless area values” without any explanation.

“Elections have policy consequences,” Hurwitz wrote. “But . . . even when reversing a policy after an election, an agency may not simply discard prior factual findings without a reasoned explanation.”

The 69,000 square kilometer-large Tongass National Forest is the largest remaining temperate rainforest on the planet. Among the wildlife that depend on it are five stocks of Pacific salmon, grizzly and black bears, bald eagles, arctic terns, and the imperiled Alexander Archipelago wolf.

RACR, which was finalized shortly before President William J. Clinton left office in Jan. 2001, was the subject of a barrage of lawsuits. The rule did not go into effect until a federal appeals court in Denver rejected the last remaining legal attack on it in 2011.

Three judges dissented from the ruling, which might end a fight that began shortly after the administration of President George W. Bush wrote the Tongass exemption into the Code of Federal Regulations in Dec. 2003.

The state of Alaska and the Alaska Forest Association, Inc., which defended the Tongass exemption, could seek review of the Ninth Circuit’s decision.

The case is Organized Village of Kake v. U.S. Department of Agriculture, No. 11-35517.