Posted by Jonathan Adler: Bush Administration Imperils Last of the Legislative Vetoes: http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1228768665
Last week, the Bureau of Land Management [1]announced the repeal of a regulation that required the emergency suspension of mining on BLM lands. The Center for Biological Diversity [2]immediately decried this "last-minute attempt to roll back environmental regulations." The CBD and other environmental groups [3]had filed suit to enforce the regulation so as to prevent uranium mining near the Grand Canyon. On the surface, this action would seem to fit a familiar narrative about the Bush Administration's last-minute efforts to relax environmental regulations for industry's benefit. Digging a bit deeper reveals something more. The BLM's move may please the mining industry, but it also eliminates a deeply troubling -- and almost certainly unconstitutional -- regulation from the books. The regulation allowed one of two Congressional committees to force the BLM to alter the treatment of designated federal lands when either committee determined there were "emergency" circumstances. In effect, a single Congressional committee could, acting alone, overrule administrative action and alter the legal status of existing mining claims. If a unicameral legislative veto is unconstitutional, as the Supreme Court held in [4]INS v. Chadha, then a unilateral congressional committee veto is clearly out of bounds as well. Interestingly enough, the regulation had been on the books for quite some time. While its constitutionality had been challenged, it had escaped judicial largely because the few courts that looked at it were able to avoid confronting the provision head on. In any event, were a court to consider it now -- perhaps in the CBD's challenge to the uranium mine mentioned above -- I don't think there's much question it would agree with the Bush Administration that this regulation had to go. References 1. http://www.blm.gov/wo/st/en/info/newsroom/2008/december/NR_12_04_2008.html 2. http://www.biologicaldiversity.org/news/press_releases/2008/uranium-exploration-12-04-2008.html 3. http://www.nytimes.com/2008/12/05/us/05withdraw.html?partner=permalink&exprod=permalink 4. http://www.oyez.org/cases/1980-1989/1981/1981_80_1832/ _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
