August 4, 2017

PLF files brief reiterating need to dismiss lawsuit challenging use of the Congressional Review Act

By Jeffrey W. McCoy Attorney

As reported on redtaperollback.com, last week a federal court in Alaska granted PLF’s motion to intervene in a lawsuit over the use of the Congressional Review Act. PLF and its clients Kurt WhiteheadJoe Letarte, the Alaska Outdoor Council, and Big Game Forever, asked to participate in a case brought by the Center for Biological Diversity in order to defend Congress’ and the President’s authority to invalidate agency regulations.

In the order granting intervention, the court asked PLF to file a brief in support of the federal government’s motion to dismiss. Yesterday, PLF filed the brief, and explained that a resolution that passes both houses of Congress and is signed by the President is constitutional, despite CBD’s arguments to the contrary.

At issue in this case is Public Law No. 115–20. The law revoked the Department of the Interior’s Refuges Rule, a regulation that severely restricted the use of land in Alaska’s National Wildlife Refuges. The law also prohibits the Interior department from adopting rules in “substantially the same form” as the Refuges Rule. Therefore, the substantive restrictions in the Refuges Rule are abolished and cannot be reinstated—unless and until Congress decides to adopt them.

CBD alleges that this “constraint on future [agency] rulemaking violates the separation of powers … .” According to CBD, Congress is prohibited from limiting the rule-making authority of the Department of Interior, which is part of the Executive Branch. As PLF explains in its brief, this argument has no merit. First, The Constitution’s Property Clause gives Congress the authority to regulate federally owned lands. And through the Alaska National Interest Lands Conservation Act, the National Wildlife Administration Act of 1966 and the National Wildlife Refuge System Improvement Act of 1997, Congress delegated authority to the Department of Interior to manage Alaskan refuge areas. Therefore, Congress itself delegated rule-making authority to Interior. Without that delegation, Interior would be powerless to issue binding, substantive rules in the first place.

Second, Congress and the President have the power—vested to them by the Constitution—to pass laws such as Public Law 115–20 here. Under the Congressional Review Act, Congress may pass a joint resolution disapproving an agency rule. If the joint resolution is signed by the President, it becomes law. As CBD itself admits, this is exactly how Public Law 115–20 was enacted. Therefore, through the duly enacted Public Law 115–20, the Refuges Rule was revoked, and Interior is precluded from adopting a substantially similar rule in the future.

Other parties, including the state of Alaska, have also intervened in order to defend the use of the Congressional Review Act. Hopefully the court will listen to the arguments of PLF and these other parties, and will quickly dismiss the lawsuit.

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