WRITTEN BY:  James H. Lister

Can the Change of Administration in Washington DC Also Solve Your Company’s or Industry’s Regulatory Problem?

Hunting groups in Alaska and around the country, and many Native and non-Native residents of Alaska, strongly opposed a regulation adopted in the waning months of the Obama Administration that largely transferred management of public hunting on National Wildlife Refuges in Alaska from the State of Alaska’s Board of Game to the U.S. Fish and Wildlife Service. Several groups and individuals represented by Jim Lister and Zach Olson of BHBC, sued to overturn the regulation. The State of Alaska filed a similar lawsuit.

A large part of this regulatory issue was solved on March 21, 2017 when Congress, controlled by Republicans, passed a Resolution under the Congressional Review Act (CRA) rescinding the Alaska Refuges Rule.  President Trump then signed the measure into law, thereby rescinding the rule. The CRA’s “magic” is that it reduces the normal 60 vote threshold needed to end debate in the Senate to 51 votes.  This allowed the Senate to approve the bill on a 52 to 49 vote.  The lawsuit will continue to challenge a similar rule regarding hunting on National Preserves in Alaska that was adopted too long ago to be repealed through the CRA.

On behalf of the same client group, the BHBC team wrote the Alaska Congressional delegation in January, 2017 to request introduction of resolution under the CRA disapproving the Rule.  After Congressman Don Young of Alaska introduced the CRA resolution and shepherded it through the House of Representatives, Senator Dan Sullivan (with the strong support of Senator Lisa Murkowski) pushed the resolution through the Senate.  To support this effort, the BHBC team conducted a dozen briefings of Senate offices from States other than Alaska, explaining this Alaska-specific issue, and the adverse precedent the challenged rule set, threatening state game management in all States.

Can the CRA similarly solve your regulatory problem dating from the tail-end of the Obama Administration?

Probably not, but the election has also made other agency-level remedies easier to use, and they may solve your problem.  While there may well be exceptions for older rules that were never properly sent by the agency to Congress for review, the CRA window for repealing rules adopted at the end of the prior Administration that the agency properly sent to Congress expires soon, during May, 2017 (the exact date is debatable).  Using the CRA is also a “heavy lift.”  There is only so much time Congress can devote to one agency rule.

Most regulatory problems dating from the last Administration are better solved by agency-level remedies that are easier to use because of the election results:

  • Petitioning the agency, now coming under new political leadership, to rescind the problematic rule or other agency decision. If the agency action was a rule, the agency will likely need to seek public comment.
  • Petitioning the agency to stay enforcement of the problematic rule or other action while the agency reconsiders it. A stay of enforcement should not require the agency to first seek public comment. Showing the agency procedural defects in the adoption of the rule or other action is helpful, not essential.
  • Initiating a new agency proceeding. For example, in some circumstances, it may be better to submit a new permit application than to seek reconsideration of a similar application denied by the last Administration. Similarly, it may be better to petition to amend or clarify a bad rule than to petition for total repeal.
  • Filing a lawsuit for judicial review of the rule, permit denial/grant, or other action or decision of the prior Administration. The new Administration may be amenable to a compromise resolution in some cases.  However, one must be careful, as the strong instinct of the permanent civil servants who make many of the decisions will be to defend their agency in court.