KNRC Files Lawsuit against Department of Interior, US Fish & Wildlife Service –
Wednesday, April 11, 2018 – Today, the Kansas Natural Resource Coalition (KNRC) filed a lawsuit against the United States Fish and Wildlife Service in Federal District Court. At issue is failure of the United States Fish and Wildlife Service (USFWS) to submit its Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) Rule to the Congress for approval as required by federal statute.
Despite a clear statutory mandate that agencies submit every new rule for review under the Congressional Review Act (CRA), the US Congress has not been given the opportunity to vote on the PECE, potentially placing legitimate and expensive conservation programs at risk from lawsuits on procedural grounds.
In this litigation, KNRC is teaming with public interest law firm the Pacific Legal Foundation, and our legal team includes veteran attorney Johnathon Wood, and a contributing author to the CRA itself, Constitutional attorney Todd Gaziano.
The CRA was enacted to address the longstanding problem of federal agencies granting themselves regulatory powers beyond those delegated by Congress. Many federal agencies — not just Department of Interior — have for years chosen to ignore CRA requirements when imposing rules on the American public. The problem is so prolific, that between 2001 and 2009, the Congressional Research Service reports that federal agencies failed to submit more than 1,000 substantive rules to the Congress for consideration under CRA.
The KNRC lawsuit is not so much about agencies imposing bad rules on local governments, but more that the regulated public could be impacted by good rules that have not been properly promulgated according to congressional procedures.
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.