Posted by Jonathan Adler: Does Concealed Carry Significantly Affect the Environment? http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1237907930
Last December, the Department of the Interior promulgated a midnight regulation relaxing the federal prohibition on gun possession in national parks and wildlife refuges. Under the new regulation, individuals would be permitted to possess concealed, loaded, and operable firearms in national parks and refuges insofar as such possession was permitted under the laws of the state in which a given park or refuge is located. Anti-gun and pro-conservation organizations, including the Brady Campaign to Prevent Gun Violence and the National Parks and Conservation Association, promptly sued alleging, among other things, that the Interior Department failed to comply with the National Environmental Policy Act (NEPA) in issuing the new rule. Specifically, the complaining groups alleged, Interior conducted neither an environmental impact statement (EIS) or environmental assessment before instituting the change. In response, the Interior Department argued that no EIS or EA was required because loosening the restrictions on concealed carry in national parks and refuges would have no environmental impact whatsoever. Specifically, they argued that because the rule change does not allow any new uses of firearms in national parks and refuges, they could presume that the rule change would not have a significant effect on the environment, and therefore no further analysis was required. Indeed, Interior argued that the rule change itself would "not have any actual effects on the environment" because it did not "authorize any actual impacts on the environment." Judge Colleen Kollar-Kotelly did not find the Interior Department's arguments all that convincing and, last Thursday, [1]issued a preliminary injunction barring implementation of the new rule. This was not too surprising. As Judge Kollar-Kotelly noted in her opinion, the Interior Department had long maintained that concealed carry should be prohibited in national parks so as to minimize potential threats to wildlife, natural resources, and park visitors. The Interior Department's policy may have been misguided, as concealed carry is allowed in national forests and other federal lands, but that does not mean the policy change has no effect. Further, she noted, many of those who supported the rule change argued that allowing concealed carry would enable park and refuge visitors to protect themselves from potentially dangerous wildlife. Again, these may be good arguments in support of the rule change, but they undermine the claim that the revision would produce no environmental effects. Interior's instinct to harmonize the regulation of federal lands with the laws of the states in which such lands are located in laudable, but it does not excuse failing to comply with applicable legal requirements. The Interior Department's decision not to conduct a full EIS was probably justified, but I think this conclusion should have been based upon an environmental assessment. Interior may well have been correct that such effects would have been rather small -- and, if so, an EA would have so found -- but it is implausible that the rule change would have had no effect at all. Given that the Interior Department had long maintained a contrary position, it is difficult to accept its revised claims without greater substantiation. Whenever an agency alters a longstanding policy position, it will be subject to greater judicial scrutiny, and Interior failed to meet the greater burden here. I did not follow the development of this rule all that closely, but I suspect the ultimate decision not to conduct an EA, let alone a full EIS, was motivated by the Administration's desire to finalize the rule before the Obama team took over. Conducting greater analysis, even an EA, would have made this difficult, but it also made the new rule more vulnerable. If my supposition is correct, this is further evidence that "midnight" rulemaking is not conducive to sound rulemaking, even when the rule change is a good one. References 1. https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv2243-44 _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
