This post was originally published on Legal Planet. Reprinted with permission.
Soon after Trump took office, Republicans used the Congressional Review Act (CRA) to overturn sixteen Obama-era regulations. If they win control of the government in 2024, they'll undoubtedly do the same thing to Biden regulations. It behooves us, then, to understand the effect of these legislative interventions. A Ninth Circuit ruling last week in a case involving bear baiting, Safari Club v. Haaland sheds new light on this murky subject.
The CRA provides a fast-track process for Congress to repeal administrative regulations. Such a repeal also impacts the agency's power to issue new regulations. In the absence of further legislation, an agency may not reissue the rule in "substantially the same form" or issue a "new rule that is substantially the same" as the overturned rule. As a thorough report by the Congressional Research Service explains, however, no one really knows what "substantially the same" means. More than "a little similar" and less than "identical," presumably, but that leaves a very large gray area.
Some agencies have concluded that they can't even issue a rule dealing with the same subject as the old one. A couple of agencies found themselves forced to issue new rules that weren't all that different, however, because an existing statute gave them little choice but to try again. Until the Safari Club case, however, there hadn't been any judicial rulings on the issue.
Safari Club involved restrictions on hunting on federal land in Alaska. In 2016, the U.S. Fish and Wildlife Service (FWS) issued the Kenai Rule, which banned baiting of bears in the Kenai National Wildlife Refuge. (The idea of baiting is apparently to lure bears with food in order to shoot then, for those who like the idea of killing something without the trouble or risk of actually having to go hunting for a dangerous animal.) The rule also banned hunting coyote, lynx, and wolves in a specific area of Kenai called the Skilak Wildlife Recreation Area.
A few months later, the FWS issued a rule expanding the ban on baiting bears to all Alaskan wildlife refuges and restricting hunting of predators. In 2017, Congress overturned the "Refuges Rule" under the Congressional Review Act.
The issue before the court in Safari Club was the effect of the CRA resolution on the earlier Kenai Rule. Alaska argued that the CRA resolution "made clear that intensive management or predator control was not in conflict with the Service's federal mandate for administering national wildlife refuges." Thus, in the state's view, the Kenai Rule was based on the same legal theory as the Refuges Rule and should suffer the same fate.
The Ninth Circuit decided otherwise. The court identified three separate reasons for rejecting this argument:
In short, the Ninth Circuit did not see the congressional disapproval of the Refuges Rule as a shift in policy, merely as a veto of one specific administrative action. In some other cases, courts have rejected the argument that in vetoing a federal rule, Congress also indicated disapproval of similar state rules. Moreover, the Ninth Circuit was clearly untroubled by the fact that the Kenai Rule was simply a more limited version of the disapproved Refuges Rule and did not view that as a basis for finding substantive similarity.
The situation in the Safari Club case was unusual, and the court's discussion of the CRA issue was brief. Clearly, the decision doesn't represent the last word on the subject. Given the lack of other authority on the issue, the decision does represent a significant data point. The ruling should provide some reassurance to agencies that they retain some power to regulate the same subject, based on similar policies, and even in similar ways, after Congress has killed a previous effort.
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Daniel Farber | May 4, 2022
Soon after Trump took office, Republicans used the Congressional Review Act (CRA) to overturn sixteen Obama-era regulations. If they win control of the government in 2024, they'll undoubtedly do the same thing to Biden regulations. It behooves us, then, to understand the effect of these legislative interventions. A Ninth Circuit ruling last week in a case involving bear baiting, Safari Club v. Haaland sheds new light on this murky subject.
Daniel Farber | May 2, 2022
Court watchers and environmentalists are waiting with bated breath for the U.S. Supreme Court to rule on West Virginia v. EPA, the Court's most important climate change case in a generation. The issue in that case is what, if anything, the U.S. Environmental Protection Agency (EPA) can do to regulate carbon emissions from power plants and factories. Last week, conservative states asked the Court to intervene in another climate change case. How the Court responds could give us hints into just how far the activist conservative majority is likely to go in the West Virginia case.
James Goodwin | April 27, 2022
Few policy questions have a more profound impact on our day-to-lives than how we produce, transport, and use energy. Whether it's a fight against the siting of a polluting natural gas facility in a historically Black community, the catastrophic failure of an electric grid following a winter storm, foreign wars causing price shocks that further hollow out the fixed incomes of America's older adults, or an abiding concern over leaving our grandchildren a habitable climate — all these issues and more make energy policy a central concern for the public. The Federal Energy Regulatory Commission (FERC) — which oversees much of the country's energy infrastructure and helps set rules, rates, and standards for energy markets — is undertaking new efforts to level the playing field. A new Center for Progressive Reform report examines one of these efforts: the establishment of the Office of Public Participation (OPP). After decades of delay, FERC finally began setting up the office this past year.
Marcha Chaudry | April 26, 2022
Earlier this month, HBO Max aired an important series about toxic ingredients in cosmetic products. The series also examined the professional beauty industry and the health effects to workers exposed to toxic ingredients. Toxic ingredients are found in cosmetics and other personal care products. The toxic chemicals used in them have been linked to a wide range of health problems, including ovarian cancer, breast cancer, early-onset puberty, fibroids and endometriosis, miscarriage, poor maternal and infant health outcomes, diabetes and obesity, and more. As I noted in Not So Pretty, "There is a loophole in federal regulation that allows industry to use almost any ingredient and label it as 'fragrance.'"
Daniel Farber | April 25, 2022
Last week, the White House undid an effort by the Trump administration to undermine the use of environmental impact statements. The prior rules had been in effect since 1978. Restoring the 1978 version was the right thing to do. The Trump rules arbitrarily limited the scope of the environmental effects that the U.S. Environmental Protection Agency (EPA) can consider under the National Environmental Policy Act (NEPA). Their goal was clearly to prevent consideration of climate change.
Jake Moore | April 22, 2022
In October 2022, the Clean Water Act will turn 50. Though heralded as a crowning environmental achievement, some argue it's a costly and ineffective law. Half a century later, what has it achieved, and what can policymakers improve?
Minor Sinclair | April 21, 2022
I'm hopeful the recent disco revival won't last but that other resurging movements of the 1960s and '70s will. That era saw the birth and explosive growth of the modern environmental movement alongside other sweeping actions for peace and equality. Public pressure led to critical environmental laws that continue to protect our natural resources and our health and safety. In 1970, Congress created the U.S. Environmental Protection Agency and enacted the Clean Air Act, which authorizes the federal government to limit air pollution, and the Occupational Safety and Health Act, which established the first nationwide program to protect workers from on-the-job harm. Two years later came passage of the Clean Water Act, a landmark amendment to existing anti-pollution law that requires our government to restore and maintain clean and healthy waterways across the land. That was some era -- the last great upsurge of government protections.
Michael C. Duff | April 21, 2022
It might not be easy to get to the merits of United States v. Washington. A funny thing happened on the way to oral argument: The state of Washington modified the 2018 workers' compensation law at the center of the case, raising the prospect that there is no longer a live dispute for the justices to resolve.
Brian Gumm, Minor Sinclair, Robert L. Glicksman, Sidney A. Shapiro | April 18, 2022
We're sad to share the news that long-time Center for Progressive Reform Member Scholar Dale Goble passed away at his home on April 14. Scholars and staff alike appreciated his warm presence at our scholars' meetings, and he brought a wealth of knowledge to the fields of wildlife and conservation law. When the founders of CPR were reaching out to the nation's leading progressive scholars, we were so pleased that Dale agreed to join. His humanity, his dedication to protecting public lands and wildlife, and his participation in CPR will be sorely missed.