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Bush's War on the West?

Today's Washington Post reports:

Using language that suggests they are fed up with the Bush administration, federal judges across the West have issued a flurry of rulings in recent weeks, chastising the government for repeated and sometimes willful failure to enforce laws protecting fish, forests, wildlife and clean air.

In decisions in Oregon, California, Montana and Wyoming, judges have criticized the judgment, expertise and, in some cases, integrity of the federal agencies that manage natural resources on public lands.

Whereas the headlne suggests the judges are upset with Bush Administration policy, I would think it is more accurate to say that the judges are frustrated with the Administration's execution of policy, in particular its failure to comply with various deadlines and analytical requirements. In this regard, the Bush Administration is hardly alone — the Clinton Administration also played fast and loose with some environmental law requirements, particularly in the second term — but that does not excuse the current administration's performance.

UPDATE: A commenter who works in the environmental field made some points below that I thought were worth highlighting:

As an environmental worker myself (my job is intimately related to many of the laws, as well as science, behind the cases you are citing), I know that essentially EVERY decision within the environmental realm is a political decision. Environmental science is very 'soft'-it is not determinate like physics (building a bridge with a certain strength is reasonably easy to do). It is quite indeterminate, like political science of sociology (writing a law that will result in a certain economic results is extremely difficult to do-as is writing a law with a certain impact to salmon populations, or running a dam to yield a certain depth of water downstream, etc etc).

Thus, practically every decision in environmental situations-whether policy, legal, or technical, is really a policy decision-there is no clear cut interpretation of a law or scientific study for a judge to see and apply.

So when judges say they don't like Bush's response to X (this law, that study, those salmon population data, etc) they really are saying they don't like his interpretation of the law/science/policy, and would prefer their own interpretations.

I believe there is some truth in this, particularly with regard to the "softness" of much environmental science and the policy judgments that are inherent in implementing environmental mandates.

That said, I don't think judicial invalidations of environmental policy decisions are always, or even often, based upon the judges' political preferences (though there is an academic literature debating this point). Judges are just not that prone to explicitly second-guess policy judgments. Instead, judges are very likely to identify cases in which a given agency has failed to fulfill its procedural or analytical requirements. These sorts of errors — failing to examine X or respond to concern Y — are relatively easy for generalist judges to identify, so these sorts of mistakes are most likely to lead to the invalidation of agency action. It may well be that judges scrutinize disfavored policies more closely, but I still think that most invalidations are based upon agency failures to fulfill their legal obligations.

SECOND UPDATE: Be sure to check out the comment by former Assistant Secretary of the Interior Craig Manson as well.

Arbusto Spectrum (mail):
If there is a Bush administration policy to not enforce or execute any provisions of the law that they don't like (which might be inferred from the indulgent use of signing statements), then it is in fact the policy that should be castigated.
10.6.2006 9:58am
Jonathan H. Adler (mail) (www):
Fair point.

JHA
10.6.2006 10:04am
Nate F (mail):
Also, I think it would be fair to say that with regard to the environment, the executive branch has a such a broad authority to interpret legislative policy that it often is more or less creating policy of its own. See: Roadless Rule, for example.
10.6.2006 10:07am
sk (mail):
As an environmental worker myself (my job is intimately related to many of the laws, as well as science, behind the cases you are citing), I know that essentially EVERY decision within the environmental realm is a political decision. Environmental science is very 'soft'-it is not determinate like physics (building a bridge with a certain strength is reasonably easy to do). It is quite indeterminate, like political science of sociology (writing a law that will result in a certain economic results is extremely difficult to do-as is writing a law with a certain impact to salmon populations, or running a dam to yield a certain depth of water downstream, etc etc).

Thus, practically every decision in environmental situations-whether policy, legal, or technical, is really a policy decision-there is no clear cut interpretation of a law or scientific study for a judge to see and apply.

So when judges say they don't like Bush's response to X (this law, that study, those salmon population data, etc) they really are saying they don't like his interpretation of the law/science/policy, and would prefer their own interpretations.

You can conclude that judges should a) shut up because its not their job to write policy, or b) judges should go ahead and push things in the direction they want because no matter what they do, its policy. Its an interesting question.

Sk
10.6.2006 10:32am
David Sucher (mail) (www):
".. the Clinton Administration also played fast and loose with some environmental law requirements, particularly in the second term..."

For example?
10.6.2006 11:44am
Chris S (www):
Isn't the practice of not enforcing regulations and law part of the checks and balances that the framers intended?

Congress makes the law, but only the executive can decide to enforce it. I thought this was the way that it was supposed to work.
10.6.2006 11:50am
Randy R. (mail):
No, the executive is supposed to execute the laws that congresses passes. He has no discretion in the matter. If he didn't like a law, he could veto it when it comes across his desk.
10.6.2006 11:58am
Jonathan H. Adler (mail) (www):
David --
Sure. Here are some I identified in a 2000 report, all of which involve fairly strong rebukes from reviewing courts:
- The oxy-fuels rule mandating renewable content for reformulated gasoline. See API v. EPA, 52 F.3d 1113 (D.C. Cir. 1995).
- The EPA's handling of MMT. See Ethyl Corp. v. Browner, 989 F.2d 522 (D.C. Cir. 1993); Ethyl Corp. v. EPA (Ethyl II), 51 F.3d 1208 (D.C. Cir. 1995); Ethyl Corp. v. Browner (Ethyl III), 67 F.3d 941 (D.C. Cir. 1995).
- EPA's handling of a the SO2 NAAQS. See American Lung Ass'n v. EPA, 134 F.3d 388 (D.C. Cir. 1998).
- EPA's attempt to force other states to adopt California's LEV requirements. See Virginia v. EPA, 108 F.3d 1397 (D.C. Cir. 1997).
- EPA's effort to extend the RFG mandate beyond the Clean Air Act's requirements. API v. EPA, 2000 U.S. App. LEXIS 14 (D.C. Cir. 2000).

Chris --
There is a difference between the exercise of prosecutorial discretion -- deciding whether to enforce given requirements in given instances -- and adopting regulations in violation of the applicable procedural or substantive requirements.

JHA
10.6.2006 12:05pm
anonymous (mail):
"that does not excuse the current administration's performance".

First: Why do you believe these Liberal judges regarding Bush's performance? Unable to discern for yourself? When was the last time you were in Montana?

Second: Who are these judges? What are their names? Were they appointed by GWB, or perhaps by Bill Clinton?

Finally, these are JUDGES! If they want to have responsibility for execution of policy, let them resign their unelected judgeships and go to work in a different FREAKIN' BRANCH OF GOVERNMENT!

Are you guys Libertarians, or have you lost your minds?
10.6.2006 12:16pm
John (mail):
It could be a mistake not to enforce these environmental laws vigorously. Once the actual effects are known, that may be the best way to overturn those laws. So I'd enforce away!
10.6.2006 12:20pm
Jonathan H. Adler (mail) (www):
Anonymous --

I was last in Montana in August, and before that I was there in July. I go there at least once a year.

I agree that judges should not impose their policy views on administrative agencies. But I also believe that adminsitrative agencies should faithfully execute the laws. In the environmental context, unfortunately, this is something that various administrations have been reluctant to do.

JHA
10.6.2006 12:22pm
Craig Manson (mail):
Much of the litigation against the government in natural resources cases is procedural and deals with deadlines. There is no Bush Administtration policy not to comply with the procedural requirements of the law. But indeed, Jonathan is correct to sugggest that the Clinton Administration ignored those requirements as well. In fact, the Bush Administration has spent a great deal of time defending, and often settling, cases that arose before January 20, 2001. A good example is the ongoing litigation over designation of critical habitat in the Endangered Species Act. Most of that litigation has to do with failure to designate critical habitat at the time required by the statute. Those failures were in large part the result of a very explicit Clinton Administration policy.

The situations cited in the Washington Post story, however, are among several instances in which judges have taken issue with policy. I don't think it can be said that the judges in these cases truly are concened with "execution of policy." In any event, "execution of policy," within the limits of a statute, is not a matter for judicial opinion. When a judge says that an agency has "ignored" science, frequently that judge is saying that the agency exercised its discretion as to the scientific questions in a manner that the judge dislikes. The science in records of agency decisions is not so neutrally objective that one can say that the agency had but one reasonable choice to make. Judges should be deferring to the agency's scientific judgments, as they should be deferring to the agency's policy choices under the statutes.

Let all recall this admonition:


In these cases, the [Adminnistration's action] represents a reasonable accomodation of manifestly competing interests and is entitled to deference: the regulatory scheme is technical and complex . . . .

Judges are not experts in the field and are not part of either political branch of the Government . . . .[A]n agency to which Congress has delegated policy-making responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views if wise policy to inform its judgments. . . .

. . .[F]ederal judges--who have no constituency--have a duty to respect legitimate policy choices made by those who do. The responsibility for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches."


That's Justice Stevens in the Court's opinion in Chevron v. Natural Resources Defense Counsel, Inc., 467 US 837 (1984).

Bias disclosure: Your Commenter was Assistant Secretary of the Interior February 2002 to December 2005.
10.6.2006 12:37pm
Captain Holly (mail):

I was last in Montana in August, and before that I was there in July. I go there at least once a year.

I agree that judges should not impose their policy views on administrative agencies. But I also believe that adminsitrative agencies should faithfully execute the laws. In the environmental context, unfortunately, this is something that various administrations have been reluctant to do.


This neatly illustrates the real problem: A differing vision among Americans of what the proper use of public lands is.

Upper-class professionals from the West Coast and the East look upon the West as a type of playground, and thus want to see it preserved intact for their next vacation.

Residents of the rural West -- who actually have to make a living there -- are more willing to put up with some resource extraction, since a job in mining or drilling generally pays much more than a job in a hotel or restaurant.

It's a classical trade-off: If you want a playground West, you're going to have to put up with higher prices for natural gas and oil, since a significant amount of US production comes from public lands in states like Wyoming, Colorado and Utah.

You'll have to put up with more condos and ranchettes, too, since ranchers who can no longer economically graze their cattle and sheep on public lands are going to sell out to the highest bidder, and that's usually a developer.

As a lifelong westerner, I generally am more tolerant of extractive industries, because I've seen that while grass and trees can grow back, condos and ski resorts are forever.
10.6.2006 12:47pm
Aaron:
JHA:

Forgive me, if I'm misconstruing your post, but aren't the courts' frustration with the administration based upon the government's failure to adequately enforce environmental policy; in other words, the Administration is underenforcing.

The examples that you supplied regarding the Clinton Administration "playing fast and loose" with the rules all err on the side of OVERenforcing. While that may be an undesireable (from a conservative point of view) outcome, it certainly isn't the same error that you appear to be discussing. Isn't it a tad disingenous to suggest that the Clinton Administration's procedures and policy problems are comparable to the Bush Administrations failure to enforce policy?
10.6.2006 1:16pm
Jonathan H. Adler (mail) (www):
Aaron --

Not all of the Clinton Administration examples involve the "overenforcement." For instance, the renewable fuel requirement for reformulated gasolne would have made air quality worse, the SO2 NAAQS suit involved the administration's failure to justify refusing to tighten the standard.

Captain Holly --

While I like to vacation in the West, I don't believe Westerners should have to pay for the costs of my preferences, and generally oppose federal land policies that largely benefit coastal elites at the expense of local residents.

JHA
10.6.2006 1:32pm
Bryan DB:
It's unfair to write off the decisions of the judges merely as rebukes on policy. Though that is the case in some decisions, others clearly state a problem with Administration activities in the legal realm.
For example, in Oregon:
"U.S. Magistrate Judge Elizabeth Laporte in San Francisco ruled the Bush administration had illegally repealed the 2001 rule and replaced it with a new version that required states to petition for protection of the roadless areas."
10.6.2006 1:44pm
Francis (mail):
There is no Bush Administtration policy not to comply with the procedural requirements of the law.

not exactly. US Fish and WIldlife Service's regulations on the adoption of critical habitat were invalidated years ago. There has been no effort to promulgate new ones.

During the Clinton admin, USFWS proposed enormous areas of California to be designated as critical habitat for a few keystone species (red-legged frog, california gnatcatcher, marbled murrelet). Much of the science underlying those original designations was pretty weak. With a change in administrations, the USFWS then dramatically cut back critical habitat. The science underlying the reduction in habitat was, arguably, nonexistant.

So the USFWS finds itself sued by enviros for a failure to make critical habitat determinations, sued by industry for overly large ch determinations, then sued again by enviros for excessively reduced ch determinations. All along, the administration (like the Clinton admin) has grossly underfunded the ch program.

Nor has the Forest Service exactly covered itself in glory. Land swaps without NEPA compliance, industry capture, timber harvest accounting that makes Hollywood accounting look transparent ... one of the reasons that enviros keep winning these lawsuits is that the Forest Service doesn't seem capable of doing its job legally a lot of the time.
10.6.2006 1:53pm
Mr L:
Isn't it a tad disingenous to suggest that the Clinton Administration's procedures and policy problems are comparable to the Bush Administrations failure to enforce policy?

Why would it be? Because the agencies selectively overstepped their bounds -- and the law, in some cases -- but in a way that you happen to like? How delightfully reptilian.
10.6.2006 1:55pm
Captain Holly (mail):

While I like to vacation in the West, I don't believe Westerners should have to pay for the costs of my preferences, and generally oppose federal land policies that largely benefit coastal elites at the expense of local residents.


Thank you.
10.6.2006 2:40pm
Houston Lawyer:
I'm just waiting for the Judges to start bitching that the Bush Administration is not adequately enforcing our immigration laws.
10.6.2006 3:46pm
hey (mail):
Since when are judges reluctant to get involved in policy? Consent decrees and ongoing judicial supervision are very common. Everyone has ones that they like and some that they don't like, but to denigrate the involvement of the Federal judiciary in policy decisions seems like a tribalistic defence reaction, rather than a position supported by the facts.

In all seriousness, it is pretty much the state of nature that the Federal government be under attack from the Federal judiciary for its lack of adherence to the law in pretty much every policy area, thanks to the inherent complexity and confusion of the Federal code. Every executive will be both underenforcing and overenforcing (though in different areas) just as nearly every individual is involved in several felonies a day.

Judges, being technocrats, will tend to try to increase their power and further a managerial vision of government, rather than accepting the chaotic nature of society, the economy, and the environment.

Just a side note, it is much easier, though hard, to manage a river's flow than it is to manage a species' health. There are only two inputs and three outputs in that system, with a small number of key points to measure. Trying to manage a species or economy highlights how little we know, how many inputs and outputs there are and how difficult it is to know anything about them.
10.6.2006 4:43pm
trotsky (mail):
Regarding the roadless rule, the most recent case knocked the Bush administration for repealing the 2001 rules and instituting a new procedure (asking each state to petition for the roadless areas it wants protected) without following NEPA.

But another federal judge has already found that the 2001 roadless rule itself violated NEPA -- in part because states were not given enough of a role in drawing up the rules.

NEPA seems to be an example of a law complicated enough that any aggrieved party can find a reason (nearly always procedural) for a challenge. Loggers and enviros, pro-extraction states and pro-conservation states, NIMBY homeowners and property developers have all exploited the law to try to get their way.
10.6.2006 4:54pm
Lev:

NEPA seems to be an example of a law complicated enough that any aggrieved party can find a reason


Perhaps the problem is not that the law is complicated, but that the actual reality is complicated and the law is "too" vague and nonspecific. Congress, being unwilling or incapable of "figuring out" what to do with the complexity of reality, passes a statute with specific directives but vague and nonspecific guidelines, passing the buck, or properly delegating, the responsibility and discretion of addressing the complex reality to the executive.

But because reality is complex and the statutes insist on specific action but are vague and nonspecific as to what action and and what criteria are to be taken and applied where, anyone can come up with a "better" way, and everyone has an opinion.
10.7.2006 3:21am
Kevin P. (mail):
Houston Lawyer:

I'm just waiting for the Judges to start bitching that the Bush Administration is not adequately enforcing our immigration laws.


Or that the Federal Government did not bring civil rights prosecutions against the state and local police who confiscated firearms from law abiding citizens in New Orleans.
10.7.2006 6:48am
noahpraetorius (mail):
Stop global whining.
10.7.2006 7:43am
trotsky (mail):
Lev,

Good point.
10.7.2006 6:50pm