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Report Language Is Non-binding on BPA:

Does language inserted into a Congressional Committee Report accompanying a federal appropriations bill carry the force of law? No, concluded the U.S. Court of Appeals for the Ninth Circuit yesterday in Northwest Environmental Defense Center v. Bonneville Power Association, concluding that such language could not require the Bonneville Power Administration (BPA) to cut off funding for the Fish Passage Center (FPC).

The case arose when Senator Larry Craig (R-ID) decided to cut off BPA funding for the FPC (as explained in this Washington Post story that alerted me to the decision). Senator Craig sought to defund the Center because it conducted research documenting the harm hydropower projects cause to salmon and steelhead populations in the Pacific Northwest. So, Senator Craig stuck language instructing the BPA to cut off the Center's funds, and transfer the monies to regional universities (ostensibly for the purpose of saving taxpayer money) into the Conference Committee report. [Ed. — Yes, this would be an example of the politically motivated suppression of science by a Republican.]

When the BPA sought to reallocate the FPC's funding, in accordance with the report language, various environmental groups filed suit. After assuring itself that it had jurisdiction to hear the claims, the Ninth Circuit panel opinion, written by Judge Gould, explained what BPA did wrong.

BPA treated the committee report language as if the language placed a legal obligation on BPA to transfer the functions of the FPC. However, . . . committee report language unconnected to the text of an enacted statute has no binding legal import, and it was contrary to law for BPA to base its decision to transfer the FPC [funds] on its belief that "the US Congress passed legislation . . . forbid[ding] BPA from making additional obligations in support of the Fish Passage Center."
Language in the Conference Report on a given bill is nothing more than "legislative history," the panel reasoned, and legislative history does not have legally binding effect.
The case law of the Supreme Court and our court establishes that legislative history, untethered to text in an enacted statute, has no compulsive legal effect. It was thus contrary to law for BPA to conclude, from committee report language alone, that it was bound to transfer the functions of the FPC.
This decision is not only of potential environmental significance (particularly for those of us who enjoy fly-fishing for salmon and look forward to steelhead fishing in the future), but it is also interesting insofar as it suggests that federal agencies can ignore report language purporting to instruct agencies how they should spend federal appropriations. (Whether federal agencies would face political repercussions for flouting Congressional instructions in this manner is another question.)

Byomtov (mail):
Senator Craig sought to defund the Center because it conducted research documenting the harm hydropower projects cause to salmon and steelhead populations in the Pacific Northwest.

War on Science, anyone?
1.25.2007 10:19pm
John Burgess (mail) (www):
Are toothbrushes, floss, etc. now taboo for environmental groups?
1.25.2007 10:30pm
Kazinski:
Typical 9th Circuit dreck. Not only did they rule that Congressional Committee Report language was not legally binding, which is correct, then they jump the shark and say that the BPA deferring to Congressional Committee Report language did not constitute a rational basis for the decision to defund. That is going too far.

In other news this week the Senate Foreign Relations commitee passed a non-binding resolution recommending against President Bush's troop surge plan. If Bush reversed course and deferred to sense of the committee would the 9th Circuit order Bush to send the troops anyway because there was no "rational basis" for reversing the decision? A federal agency deferring to
it's oversight committee recomendation is by definition rationial.
1.25.2007 11:57pm
andy (mail) (www):
"deferring to Congressional Committee Report language did not constitute a rational basis for the decision to defund."

Well, just blindly deferring to a committee report doesn't seem like an appropriate use of agency discretion, does it? I mean, if they made an independent inquiry based on the report's recommendation, that'd be one thing, but just treated it as law is another.

I haven't read the opinion yet, btw.
1.26.2007 12:33am
andy (mail) (www):
Oh, and how about a snippet from Bush's State of the Union speech from Tuesday:


Next, there is the matter of earmarks. These special interest items are often slipped into bills at the last hour -- when not even C-SPAN is watching. (Laughter.) In 2005 alone, the number of earmarks grew to over 13,000 and totaled nearly $18 billion. Even worse, over 90 percent of earmarks never make it to the floor of the House and Senate -- they are dropped into committee reports that are not even part of the bill that arrives on my desk. You didn't vote them into law. I didn't sign them into law. Yet, they're treated as if they have the force of law. The time has come to end this practice. So let us work together to reform the budget process, expose every earmark to the light of day and to a vote in Congress, and cut the number and cost of earmarks at least in half by the end of this session. (Applause.)
1.26.2007 12:35am
Dave Hardy (mail) (www):
Might be a pretty narrow issue.

As a matter of statutory construction, the face of the bill ranks a committee report, of course, and I'd expect an appropriations bill to be rather clear -- spend this for that.

As a matter of administrative action -- if the agency (assuming the appropriations terms were broad enough to allow discretion) defunded one program and funded another, based on nothing but the committee report, and without developing an administrative record to show why the change was rational, I could see this ruling.

Even tho it is the Ninth Circus. Even a blind hog can find an acorn now and then.
1.26.2007 12:41am
Steve:
I would think that a finding of fact in a duly enacted bill clearly provides a rational basis for agency action, without more. But a conference report doesn't constitute a factual finding.
1.26.2007 1:28am
andy (mail) (www):

The statements of BPA Vice President Delwiche illustrate
how BPA’s reliance on legislative history undermined separation of powers in this case. Delwiche said that BPA, the agency he led, was “an Executive Branch agency, accountable to Congress.” It is certainly true that Congress through legislation may direct how BPA shall operate. But an executive branch agency which views itself as subservient to a sentence in a legislative report undermines the distribution of authority in our federal government in which every exercise of political power is checked and balanced.


I know that clerks usually take a significant role in drafting opinions, but the simplistic separation of powers stuff is written in a tone of someone fresh out of law school (*every* exercise of political poewr is checked and balanced? give me a break). Parts of this opinion seem like they were written for a high school civics exam, or as part of Harriet Miers' responses to the Senate questionnaire.
1.26.2007 3:30am
Houston Lawyer:
Does this mean that Presidential Signing Statements are now more authoritative than Congressional Committee Reports?
1.26.2007 10:20am
Kazinski:
I wonder if the 9th Circuit would find a "rational basis" for any decisions made that deferred to dicta in a 9th circuit opinion. Would they say:

"But an executive branch agency which views itself as subservient to" dicta in a circuit court opinion "undermines the distribution of authority in our federal government in which every exercise of political power is checked and balanced."


There is a separation of powers issue here, the issue is whether the BPA should defer to policy preferences of a congressional oversight committee, or to the policy preferences of the 9th circuits clerks and judges.
1.26.2007 1:43pm