Senator Barrasso Proposes ESA Reforms –
Monday, July 2, 2018 – Today, Senator John Barrasso (R, Wyoming), chairman of the Senate Environment and Public Works (EPW) Committee, proposed sweeping changes to the Endangered Species Act (ESA) of 1973.
Sen. Barrasso’s Bill, and the associated section-by-section analysis, are currently in draft form. The legislative package proposes to expand the authority of the states when establishing species recovery goals, creating habitat objectives, or developing de-listing criteria for threatened and endangered animals and plants under the ESA.
Less desirable language in the draft Bill would prohibit the secretary [of Interior] from disclosing information or data under the Freedom of Information Act, such as the location of a species, landowner information, data, or business-related information. This has been a problem in the past as petitions from environmental groups have been shrouded using scientific privilege so they would not have to disclose information to local governments.
Additionally, the discussion draft would create a priority system for addressing listing petitions, status reviews and determinations based on the urgency of a species’ survival and conservation efforts “so that resources can be utilized in the most effective manner,” said the summary from Barrasso’s office.
Senator Barrassos legislation, which notably received positive remarks in a letter from the Western Governors Association (WGA), would increase state and local input, and improve transparency in the listing process.
Federal Judge Halts EPA Waters of the US Rule –
Monday, June 11, 2018 – Today, Federal judge Lisa Godbey Wood of the U.S. District Court for the Southern District of Georgia ordered a halt to the controversial EPA Waters of the US Rule (WOTUS). Judge Woods’ ruling will take effect immediately in an 11 state area, including Kansas.
In her 26-page ruling, Judge Wood wrote that in the event WOTUS were to take effect, states would lose sovereignty over intrastate waters, concluding that sovereignty loss is a demonstrable form of irreparable harm.
Wood also pointed out that WOTUS was arbitrary and capricious because the rule took place outside of proper Federal rulemaking procedures, and that WOTUS asserts jurisdiction over remote and intermittent waters that do not possess a significant nexus with any navigable-in-fact waters.
Arizona Passes the First State Law Prohibiting Agency Use of ‘Chevron’ Deference
Wednesday, April 11, 2018 — On Thursday, April 5, 2018, the Arizona Senate passed a bill prohibiting the use of ‘Chevron’ deference by state agencies. This form of judicial deference, which allows agencies to interpret the statutes that govern their administrative rulemaking and enforcement actions, placing businesses, local government, and other regulated entities at a distinct disadvantage during legal battles with an agency action.
Under this doctrine, which has been adopted by many courts around the nation, judges must defer to an agency’s “reasonable” interpretation of a statute that agency officials find ambiguous. The doctrine arose from the 1984 U.S. Supreme Court decision in Chevron USA, Inc. v. NRDC.
The Arizona Senate voted 18-10 in favor of House Bill 2238, which amends the state’s administrative procedure statute by directing courts to no longer defer to an agency’s interpretations in litigation over administrative decisions. The House had previously passed the legislation on a 38-21 vote.
Governor Doug Ducey signed the bill on April 11, 2018, and it is now the first state law of its kind. We hope that other state legislatures and Congress take notice and pass similar legislation to curtail the abuse that ‘Chevron’ deference and its cousins, the ‘Auer’ and ‘Baltimore Gas’ deferences have caused the regulated community over the past several decades through executive branch actions at all levels of government.