July 16, 2018

Idaho joins PLF’s defense of the Congressional Review Act

By Jonathan Wood Attorney

The Congressional Review Act should be one of the nation’s least controversial laws. To restore some measure of democratic accountability to the administrative state, it requires federal agencies to submit the rules they impose on us to our elected representatives for review before they go into effect.

That’s it! The law imposes a simple paperwork requirement on federal agencies to ensure that Congress is accountable for regulations, rather than letting unelected bureaucrats rule us without oversight. This reform was enacted in bipartisan fashion, signed by President Clinton, and cited by Senator Harry Reid as one of his proudest accomplishments. Who could oppose such an obvious and democratic measure?

Federal agencies, apparently.

Over the last two years, PLF has been the CRA’s champion, raising awareness of agencies’ persistent failure to submit rules as required, and filing two lawsuits against agencies that have not complied. Last week, one of those lawsuits got a major boost when the Governor of Idaho and the leaders of Idaho’s Senate and House of Representatives moved to intervene on PLF’s side. In joining the case, Idaho’s leaders sent this clear message to the court:

The [federal agencies] promote nothing less than noncompliance with existing law. Beyond the reach of the courts, federal management agencies would have a blank check to imperil state governments and their citizens, who are forced to bear the brunt of this illegal behavior.

The case, Tugaw Ranches, LLC v. Department of Interior, challenges the illegal withholding from Congress of controversial federal land use plans concerning the greater sage grouse. These controversial rules threaten the grazing rights of our client Tugaw Ranch and the livelihoods of the three brothers whose family has worked this land for decades. The rules have been an endless source of conflict since they were adopted in 2015, generating several lawsuits, congressional hearings, and an ongoing effort in the Department of Interior to reform them. These are precisely the sort of rules that Congress wished to subject to democratic scrutiny and might disapprove if given the opportunity to review them.

Rather than simply complying with the law and submitting these rules, the agencies have asked the court to dismiss our case and hobble the CRA. They argue that the courts have no business enforcing the statute but must instead turn a blind eye to agencies that ignore it. The Department of Interior makes the same argument in urging dismissal of PLF’s other CRA case, Kansas Natural Resource Coalition v. Interior, which seeks to vindicate a critical federal rule encouraging state, local government, property owner, and environmentalists collaborations on recovering endangered species.

PLF’s briefs opposing dismissal in both cases explains that the agencies’ arguments would render the CRA a dead letter:

Whether due to carelessness, indifference, or improper motives, the Agencies have not submitted the controversial sage grouse rules to Congress as required by the CRA. And they continue to resist this obligation, despite how easy it would be to comply. Instead, the Agencies seek to handicap the CRA by blocking any judicial review of any agency violation of the statute. This position is belied by the strong presumption of judicial review for agency actions, which the Agencies do not acknowledge, much less surmount. And their interpretation would impermissibly thwart the CRA’s purpose. According to that interpretation, every federal agency is free to ignore the law’s requirements and suffer no consequence, no matter the effect on third parties subjected to rules that have not undergone the required democratic scrutiny. This is not a permissible interpretation of the statute and the Agencies’ motion to dismiss should be denied.

Idaho’s brief opposing dismissal highlights the impact agency lawlessness would have on the state and its citizens:

The [federal agencies’] mis-interpretation of the CRA and Administrative Procedure Act would compound the harm already done to the State and its citizens in this specific instance and have disastrous effects for state governments generally. Defendants seek a blank check to deny Congress the opportunity to review the Sage-Grouse Rules, and any other rules. Immunizing agencies from judicial review prevents realization of the primary purpose of the CRA. Instead of addressing agency overreach, the Defendants’ interpretation of the CRA all but ensures it.

Congress did not intend the CRA to be the toothless law the federal agencies wish it to be. Instead, the sponsors of the CRA made clear that when Congress said that every rule must be submitted for review before going into effect, it meant it. When agencies violate that clear command, Congress “expect[s]” courts to “recognize that a rule has no legal effect.”

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Kansas Natural Resource Coalition v. Department of Interior

A buffalo rancher by trade, Ken Klemm also uses his 4,000-acre ranch in Kansas for conservation efforts. In fact, Klemm works with the Kansas Natural Resource Coalition (KNRC) to implement a conservation plan for the lesser prairie chicken. The U.S. Fish and Wildlife Service considers such local collaboration for determining endangered listings under its 2003 rule called the Policy for Evaluating Conservation Efforts When Making Listing Decisions (PECE Rule). Unfortunately, the rule is not lawfully in effect because the Service never submitted the PECE Rule to Congress as required by the Congressional Review Act (CRA). On behalf of KNRC, PLF has filed a lawsuit demanding that the Service submit its rule to Congress so it can legally take effect and allow good conservation work to continue.

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