Ruminations on the consultation regulations
FROM A READER: "What is going on with the proposed section 7 regs? They were not in yesterday's Federal Register. We have heard different stories - they are not going to be issued or they will be in out in late December. One of our guys in DC said that Congress has to be in session for the 60 days to apply, and a solicitor told me that Obama can withdraw the regs even if they do come out. Inquiring minds want to know!!"
KEITHINKING: The news media is all over the place on what will happen, as an earlier ESA musing suggests. But here are my observations:
1. The nation spoke, causing the Bush administration to address their comments.
I know some people can't believe that President Bush would ever abandon his views, but lets face it, there were 200,000 public comments, overwhelmingly opposing the regulations, and the election was 365-173. Public outcry against the regulations continues to be intense, and, at a minimum, slowed the rulemaking process down. Still, the LA Times reports that administration officials breezed through 250,000 public comments in less than a week, and quotes Andrew Wetzler, director of the endangered species project at the Natural Resources Defense Council, as saying "They've clearly made a predetermined decision to issue it no matter what the public comments say, which is not what we're supposed to do in this country." According to the General Services Administration, which offers info on the status of rulemaking from the White House Office of Management and Budget, the rules were sent for their final review stage with Office of Information and Regulatory Affairs on November 13, 2008. A recent editorial in the Washington Post skewered these and other "midnight regulations," but noted that the administration's plan was to release all regulations before November 1, 2008. Thus, based on the Washington Post and Oregonian, maybe nothing will happen, but the LA TImes, still seems to expect the rules to be published.
2. The courts will soon speak, so the Bush administration is thinking about whether to risk the bad precedent.
If the regulations are adopted, a legal challenge is nearly guaranteed. That challenge will probably succeed, because the Federal Administrative Procedure Act, 5 USC §554 states as follows:
After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.
5 U.S.C. §554. The question will be whether the Bush administration allowed meaningful participation. The critics will argue that the new rule failed to comply with the "opportunity to participate" through comments and that no "consideration" was given to those comments. In some ways, the question would be deja vu. In Spirit of the Sage Council, et al. v. Norton, 2003 WL 22927492 (D.C. Cir. 2003), a U.S. District Court considered whether a controversial new rule associated with the Endangered Species Act "no suprises" policy for habitat conservation plans complied with the public comment provisions of the ESA. The Court remanded the rules based on inadequate opportunity for public comment, leading to four more years of litigation over the matter before the No Surprises and Permit Revocation rules were eventually upheld.
My guess? Even if the rules are adopted, and the Obama administration is given the task of defending the agency rules, the likely outcome would be a directive to the Department of Justice to seek a voluntary remand, and the regulations would then be changed or abandoned. FULL DISCLOSURE: The author worked on the No Surprises litigation as a DOJ trial attorney.
3. The new leadership will reverse the regulations, so the Bush administration is considering its legacy.
The Congressional Review Act, Public Law PL 104-121, allows Congress to review every new federal regulation issued by the government agencies and, by passage of a joint resolution, overrule a regulation. Furthermore, as recently explained by Obsidian Wings, "Congress and Obama can repeal any new rule in the next congressional session for up to 60 days. Even better, no filibuster – Senate debate is explicitly limited to 10 hours." The CRA, it seems, was a driving force behind the OMB desire to get all regulations out before Nov. 1, 2008. But with that date long gone, any new regulations that come out in these final days of the Bush administration will need to survive CRA review.
BOTTOM LINE: It remains to be seen whether President Bush and Secretary Kempthorne choose to spend their final days, and reputation, pushing through a set of doomed Endangered Species Act regulations that are opposed by the people, and probably the Courts and Congress as well.