May 10, 2018

Federal Court in Alaska agrees with PLF and dismisses challenge to the Congressional Review Act

By Oliver J. Dunford Attorney

PLF scored another victory against bureaucratic overreach yesterday, when the federal court in Alaska dismissed a lawsuit challenging the constitutionality of the Congressional Review Act. This dismissal is PLF’s latest success in its campaign to promote and defend the CRA.

At issue in this lawsuit was a regulation adopted during the Obama administration and invalidated during the early months of the Trump administration. The regulation—known as the Refuges Rule—had significantly restricted access to and use of land within Alaskan National Wildlife Refuges. Acting pursuant to the CRA, both houses of Congress passed a Joint Resolution “disapproving” the Refuges Rule, and President Trump signed Public Law No. 115-20 into law. Therefore, the Refuges Rule was invalidated.

But the Center for Biological Diversity (CBD), a group that supports expansive federal control over the environment, sued the Interior Department to reinstate the Rule. PLF was the first to intervene in this lawsuit, and we immediately asked the Court to dismiss. The government and other intervening parties also moved the Court for dismissal.

CBD argued, first, that Public Law No. 115-20 did not meet the “bicameralism” and “presentment” requirements. At page 19 of its Order, the Court made quick work of this argument:

Here, Public Law 115-20 was passed by both the House and Senate and submitted to the President for approval, as required by the CRA—which was also passed by both houses of Congress and signed into law by the President. Thus, the requirements of bicameralism and presentment are met and CBD’s separation of powers concerns fail to state a plausible claim for relief.

Next, CBD made the extraordinary claim that a duly enacted law invalidating an executive-agency rule amounts to Congressional invasion of executive-branch authority. In other words, CBD claimed that it is unconstitutional for Congress to pass laws. Under CBD’s tortuous theory, once Congress allows executive agencies to adopt rules, Congress relinquishes all oversight unless and until it expressly amends the statute that originally granted the rule-making authority. Otherwise, CBD argued, Congress unduly interferes with the role of the executive branch to “take care” that the laws are faithfully executed.

This argument turns the Separation of Powers doctrine on its head. And according to the Court (page 21), “CBD does not provide authority for this assertion, nor does the Court find a basis for it.” Here, the Court acknowledged PLF’s arguments:

Furthermore, in light of the examples identified by PLF in which Congress directed agency action without amending the underlying statutes, CBD’s assertions appear misplaced. See Friends of Animals v. Jewell, 824 F.3d 1033, 1045 (D.C. Cir. 2016) (upholding legislation that required FWS to reissue regulation previously struck down under the Endangered Species Act despite not amending the ESA itself); Alliance for the Wild Rockies v. Salazar, 672 F.3d 1170, 1174 (9th Cir. 2012) (holding that where “Congress has directed the agency to issue [a] rule without regard to any other provision of statute or regulation . . . Congress has amended the law” (quotations omitted)). Ultimately, CBD does not provide persuasive authority to support its claim that Public Law 115-20 is invalid because Congress failed to amend the underlying statutory provisions.

The Court further explained (page 22):

[G]iven that the CRA is itself a law passed by Congress pursuant to the mechanisms outlined in the Constitution, CBD does not adequately explain how the Take Care Clause mandates that the executive branch should retain authority that Congress, with Presidential approval, withdrew from it through Public Law 115-20. Consequently, CBD’s invocations of the Take Care Clause do not adequately state a claim for relief as to either the Joint Resolution or the Disapproval Provision of the CRA.

We expect CBD to appeal this decision, and we are prepared to defend it—all the way to the Supreme Court if necessary. In the meantime, the Court’s Order properly enforces the Constitution’s Separation of Powers and correctly upholds Public Law 115-20.

For more information, please see our case page here, and our previous posts herehereherehere, and here.

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Center for Biological Diversity v. Zinke

PLF scored another victory against bureaucratic overreach on May 9, when the federal court in Alaska dismissed a lawsuit challenging the constitutionality of the Congressional Review Act (CRA). At issue in this lawsuit was a regulation known as the Refuges Rule, which greatly restricted access to and use of land within Alaskan Wildlife Refuges. Congress used the CRA to invalidate the rule—a move promptly challenged in court by the Center for Biological Diversity (CBD). Representing coalition of individual Alaskans and related organizations, PLF successfully intervened to support the CRA’s constitutionality.

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