[Senate Prints 107-76]
[From the U.S. Government Publishing Office]
107th Congress COMMITTEE PRINT S. Prt.
2d Session 107-76
_______________________________________________________________________
REWRITING THE RULES
__________
R E P O R T
Prepared by
THE MAJORITY STAFF
of the
COMMITTEE ON GOVERNMENTAL AFFAIRS UNITED STATES SENATE
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13
October 24, 2002
U. S. GOVERNMENT PRINTING OFFICE
82-471 WASHINGTON : 2002
___________________________________________________________________________
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COMMITTEE ON GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan FRED THOMPSON, Tennessee
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
RICHARD J. DURBIN, Illinois SUSAN M. COLLINS, Maine
ROBERT G. TORRICELLI, New Jersey GEORGE V. VOINOVICH, Ohio
MAX CLELAND, Georgia THAD COCHRAN, Mississippi
THOMAS R. CARPER, Delaware ROBERT F. BENNETT, Utah
JEAN CARNAHAN, Missouri JIM BUNNING, Kentucky
MARK DAYTON, Minnesota PETER G. FITZGERALD, Illinois
Joyce A. Rechtschaffen, Staff Director and Counsel
Laurie R. Rubenstein, Chief Counsel
Kathryn J. Seddon, Counsel
Cynthia Gooen Lesser, Counsel
Holly A. Idelson, Counsel
David M. Berick, Professional Staff Member
Richard A. Hertling, Minority Staff Director
Darla D. Cassell, Chief Clerk
Adam R. Sedgewick, Assistant to the Chief Clerk
C O N T E N T S
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Page
EXECUTIVE SUMMARY................................................ 1
INTRODUCTION AND BACKGROUND...................................... 6
FINDINGS AND CONCLUSIONS......................................... 8
I. The Card Memo................................................. 8
A. What Happened............................................... 8
B. Legal Concerns.............................................. 11
C. Public Participation........................................ 14
II. The Bush Administration's Attempts to Change Three Rules..... 14
A. Roadless Area Conservation Rule............................. 15
(1) The Rule's Development................................... 18
(2) Department Delays and Reviews Rule....................... 19
(3) Legal Strategy........................................... 21
(4) GForest Service Implementing Policies Less Protective
than Rule...................................................... 27
B. Hardrock Mining (``3809'') Regulation....................... 29
(1) The Rule's Development................................... 32
(2) Department Considers Suspension Options.................. 35
(3) Changes Address Industry Concerns........................ 39
C. Arsenic in Drinking Water Standard.......................... 41
(1) The Rule's Development................................... 43
(2) Arsenic Rule Targeted for Change......................... 45
(3) Additional Study and Decision to Retain Standard......... 52
REWRITING THE RULES
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EXECUTIVE SUMMARY
On January 20, 2001, the crowd that was gathered at the
Capitol for President Bush's Inauguration had barely dispersed
when the President's Chief of Staff, Andrew H. Card, Jr., took
one of the most far-reaching and significant steps of the
administration's early days: He issued a directive to all
Federal agency heads to immediately freeze the Federal
regulatory process in its tracks. Although couched in terms
more familiar to the bureaucracy than the citizenry, the so-
called Card memo had the potential to diminish the health and
safety of tens of millions of Americans.
Virtually all Federal agencies issue rules and regulations
to flesh out and implement laws passed by Congress. From the
school bus and gas pipeline safety rules issued by the
Department of Transportation, to the drinking water and clean
air regulations issued by the Environmental Protection Agency
(EPA), to drug safety provisions put out by the Food and Drug
Administration, Federal regulations and their enforcement are
what ensure that Americans' environment, safety, and health are
protected.
Because of the tremendous impact these rules have on
individuals and businesses alike, agencies must go through a
structured, open and transparent process before issuing them.
That process--known as ``notice and comment'' rulemaking--
requires agencies to notify the public of their intent to issue
rules, to allow the public to comment on the proposals, and
then to justify, in writing and on the record, why the agencies
decided to do what they did.
By Inauguration Day 2001, literally hundreds of regulations
had gone through this process, had been published in the
Federal Register--the official annals of Federal agencies--and
were ready to go into effect. Yet without any notice to the
public or opportunity for interested parties to comment, the
Card memo directed agencies to hold in abeyance a slew of
regulations until they could be reviewed by Bush Administration
political appointees.
Although most of these rules passed quickly through the new
administration's political filter, some very important ones did
not. A number of regulations, some of which had been subjected
to years of public scrutiny and deliberation by government
agencies, were put through an unusual and, in some cases, time-
consuming second look by the Bush Administration. In some of
those cases, the second look amounted to a death sentence for
the rule.
Troubled by the Card memo's government-wide interference
with the regulatory process and the prospect of a reversal of
so many regulations, Senator Joseph I. Lieberman asked his
Governmental Affairs Committee staff to look into the
matter.\1\ Specifically, he charged his staff with reviewing
the Card memo and its effect on three important rules that were
final before the Bush Administration came into office:
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\1\ At the time he initiated the inquiry (in March 2001), Senator
Lieberman served as the Governmental Affairs Committee's Ranking
Minority Member. On June 6, 2001, he became the Committee's Chairman.
The inquiry was conducted pursuant to the Committee's jurisdiction ``to
study or investigate . . . the efficiency and economy of operations of
all branches and functions of the Government with particular references
to the operations and management of Federal regulatory policies and
programs.'' S. Res. 54, 107th Cong., 1st Sess. (2001) (ENACTED). The
report is based on the review of thousands of pages of agency documents
related to initial administration decisions to suspend, delay,
reconsider, or modify these regulations. Committee staff began their
review of these documents during the Spring and Summer of 2001. The
events of September 11, 2001, interrupted the staff's inquiry and
refocused Committee resources on homeland security issues and
oversight, postponing the release of this report until now.
L (1) The Department of Agriculture's rule conserving
roadless areas in national forests: In January 2001, the U.S.
Department of Agriculture (USDA) issued a rule prohibiting most
road construction and logging in roadless areas of national
forests. The rule, which had been in development since early
1998, sought to protect against piecemeal Forest Service
decisions that were altering and fragmenting ecologically
valuable areas. The rule sought to balance the need for
appropriate development with the reality that our national
forests contain important watersheds and fragile ecosystems
that can be damaged by road development and logging. The rule
did not impose an absolute ban. Exceptions included the removal
of timber and the construction of roads so as to reduce the
risk of wildfires and to protect from the loss of life and
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property.
L (2) The Department of the Interior's (DOI) rule
regulating hard rock mining on public lands: In November 2000,
DOI issued a rule regulating hard rock mining on public lands.
The rule had been in development for almost a decade and sought
to mitigate hard rock mining's harmful effects on soil, air,
ground water, surface water, land-based and water-based
vegetation, and wildlife.
L (3) The Environmental Protection Agency's rule capping
the permissible level of arsenic in drinking water: It has long
been known that arsenic in drinking water poses a wide variety
of health risks. In January 2001, after nearly 2 decades of
study and years of development, EPA issued a rule lowering the
permissible limit for arsenic in drinking water. The rule
brought the U.S. standard in line with that set by the World
Health Organization and followed by the European Union.
The development of each of these three rules involved
extensive public comment and scrutiny, and each was accompanied
by an on-the-record agency justification of its actions.
Nonetheless each was promptly subjected to the new
administration's second guessing. In the first two cases, the
Bush Administration ultimately weakened or otherwise undermined
the rules. In the third, the rule initially adopted after years
of scientific study was challenged, but ultimately retained
after months of additional--and unnecessary--study.
In the course of its inquiry, Committee staff reviewed
thousands of documents related to the agencies' initial
decisions. The story the documents tell is one of
administration actions characterized by a troubling lack of
respect for long established regulatory procedures--an attempt
to give short shrift to public input when possible, and to
discount the science or record supporting the rules under
review.
Committee Majority staff's specific conclusions are
outlined below:
Implementation of the Card memo was of questionable
legality and gave an early warning of the
administration's lack of respect for the process of
developing regulations, including those providing a
variety of important environmental and public
protections.
Under governing law, an agency may not adopt a proposal to
delay or change a rule's effective date without first giving
the public an opportunity to comment on the proposal. But when
the Office of Management and Budget (OMB) supplied Federal
agencies with a model Federal Register notice to implement the
Card memo, it suggested that the agencies not seek public
comment, citing generally inapplicable exemptions to the public
``notice and comment'' requirement. In disregarding these legal
requirements to open administrative actions to public review,
the Bush Administration set a dangerous precedent. It treated
an important legal requirement as an annoyance and an obstacle,
rather than a fundamental part of the framework that makes
regulatory change fair, transparent, and orderly.
The administration's decision to revisit the three
rules at issue appears based on a pre-determined
hostility to the regulations rather than a documented,
close analysis of the rules or the agencies' basis for
issuing them.
There is no bar to agencies changing existing rules, but
they may do so only by going through the same regulatory
process used for adopting rules in the first place. If they
ultimately choose to change the rule, agencies must justify the
reasons publicly and with reference to a specific record.
Staff's review of the documentation of three agencies'
initial decisions to propose to suspend or otherwise undermine
the rules under review suggests a disregard for analysis as to
whether change was needed. At the Departments of the Interior
and Agriculture, the agencies approached the decision to pursue
suspension of the rules almost exclusively as a question of
``how,'' not ``whether.'' At EPA, the documents suggest no
substantive analysis of the science underlying the rule before
the administrator proposed to suspend it. Again, the suggestion
that the results of a lengthy and open process are to be
reopened without any analysis indicating the error of the
original result, at a minimum, speaks volumes about the
administration's respect for the value of the rulemaking
process and the public's role in it.
The administration, by choosing not to defend the
Agriculture Department's rule protecting roadless areas
in national forests, used a third-party lawsuit to
undermine the rule without taking public responsibility
for its actions.
Before USDA's rule protecting roadless areas in national
forests appeared in the Federal Register, groups opposing the
rule filed suit to overturn it in Federal court. USDA--which
had decided to postpone the rule's effective date without any
apparent analysis, research, or systematic review of either the
substance or procedure associated with the roadless rule, and
considered options for how to rescind or revise the rule with
only a bare outline of identified deficiencies--took the
opportunity given it by the court challenge to abandon the rule
by simply choosing not to defend it in court. The use of
stealth tactics rather than an above-board, open rulemaking
process was an unacceptable circumvention of the law's
requirements for public participation. The effective reversal
through acquiescence in litigation allowed the administration
to adopt its own policies and management directives reversing
the rule's prohibitions on timber harvesting and road
construction without the scrutiny and comment that should have
been afforded to the public--and without the assumption of
responsibility for its actions that flows from a public and
transparent decision on the record.
The Bush Administration's proposal to suspend the hard
rock mining rule was not based on documented
substantive analysis, and the ultimate decision to
rescind parts of the rule will allow mining projects
that pose unwarranted environmental and health threats
to continue.
In contrast to the two other rules reviewed by Majority
staff, DOI's hard rock mining rule was not subject to the Card
memorandum's blanket 60-day freeze because it was already in
effect when the Bush Administration came into office.
Nevertheless, it too was targeted for the waste pile. As in the
case of the roadless rule, Interior Department documents reveal
no substantive analysis of the existing rule that would set the
predicate for a new approach. Majority staff can conclude only
that DOI reached its decision based on factors other than
reasoned agency analysis, such as a predetermined intent to
take such an action or the influence of continuing opposition
to the rule by those concerned about mining revenues.
In this case, DOI sought public comment on its proposed
suspension of the rule. Although the public overwhelmingly
opposed the proposed rollback, DOI adopted a revised version of
the rule--one that eliminated key provisions previously
identified as objectionable to the mining industry.
Furthermore, DOI concluded that existing laws and regulations
(most of which had been on the books for more than 20 years)
would be adequate to protect the land, its resources, and the
water. In Majority staff's judgment, this is highly unlikely,
as those tools were available during the period that gave rise
to the concerns about hardrock mining's environmental and
health threats in the first place. In fact, a growing consensus
that these requirements were not effectively protecting the
environment prompted the Clinton Administration to issue a new
hardrock mining rule.
EPA conducted a time-consuming and unnecessary review
of the decades-in-the-making rule limiting arsenic in
drinking water.
EPA's rule on levels of arsenic permitted in drinking water
nearly suffered a fate similar to DOI's hard rock mining rule.
When the new administration entered office, EPA career staff
briefed Administrator Christine Todd Whitman in support of the
Clinton-issued rule, some stakeholders reiterated their
concerns about compliance costs and uncertainties about health
effects, and EPA consulted with White House staff.
Administrator Whitman then announced her decision to propose
withdrawing the rule, reportedly telling representatives of
water agencies that she would ``replace sound-bite rule making
with sound-science rule making.''
Although Administrator Whitman announced that she wanted to
be ``sure that the conclusions about arsenic in the rule are
supported by the best available science,'' Majority staff's
review casts doubt on the substantiveness of EPA's decision to
reconsider the rule. EPA documents generated prior to
Administrator Whitman's announcement reflect no visible
comprehensive analysis, work product, or narrative identifying
the nature of the deficiencies in the science used to establish
the Clinton-issued rule; they are instead limited to brief
staff notes with questions regarding cost/benefit analysis and
scientific studies.
EPA is required by law to use the best available, peer-
reviewed science studies in setting standards under the Safe
Drinking Water Act of 1976 (SDWA). Thus, the new
administrator's criticism of the previous administration's
``sound-bite'' rule making was a serious allegation certain to
be given credence due to her position. It should not have been
lodged without appropriate analysis supporting a conclusion
regarding deficiencies in the science.
In fact, despite the administrator's protestation about the
previous administration, it was the Bush Administration that
seemed to put sound science behind other considerations. In
April 2001, OMB staff, in the presence of staff from the White
House Domestic Policy Office and the Council of Economic
Advisors, pressed the EPA to dilute the arsenic standard, even
though the SDWA assigns EPA, not OMB, the responsibility for
setting contaminant levels for drinking water. The Majority
Staff is troubled by OMB's role in pressuring the EPA to reject
its own expert judgment regarding the science and the
application of the law.
In September 2001, an additional study by the National
Academy of Sciences confirmed the Academy's earlier conclusion
that the available science required implementing a downward
revision of the standard as ``promptly as possible.'' After 9
months of review, the Bush Administration ended up precisely
where the Clinton Administration did: With the view that the
Clinton Administration's standard would stand. In light of
these results, and the apparent absence of a rational basis for
reopening the rule at the outset, Majority staff question why
it was necessary to subject the rule to months of uncertainty
and review.
* * * * *
The administration's future intentions for each of these
rules is unclear. The USDA, which promised but did not initiate
a new rulemaking on roadless areas in national forests, has
issued a summary of comments received regarding the management
of roadless areas. DOI has solicited comments on possible
additional changes to the hardrock mining rule and established
a task force to review bonding requirements on a variety of
programs, including mining. And EPA has advised a court of its
continuing review of its arsenic standard. Any further actions
which may be undertaken by the agencies must be in full
compliance with the spirit and the letter of the law and must
not further erode environmental protections or rulemaking
procedures.
INTRODUCTION AND BACKGROUND
Typically, when a new law is born, the public is greeted
with familiar images of Members of Congress crowding the
chamber to vote, and perhaps a Rose Garden signing ceremony by
the President. As much as these moments help shape our
understanding of our democracy, they do not mark the
culmination of the democratic process. In many cases, they are
only the beginning; when legislative work ends, the often
laborious, complex--and critically important--Federal
rulemaking process begins.
Laws, written and passed by the Congress, lay out the
general architecture of government policy on an issue. Once
laws are enacted, Federal agencies--the components of the
Executive Branch--then must shape specific Federal programs to
comply with the laws through rules implementing and
interpreting the meaning of Congress' directives. Such
rulemaking is a practical necessity; lawmakers simply cannot
anticipate every question that will arise with respect to
administering a law, and it would not be practical to return to
Congress with each question as it arises.
But the Executive Branch latitude in writing the rules is
far from unfettered. As the courts have well explained, when
Congress confers such decisionmaking authority upon agencies,
it must ``lay down by legislative act an intelligible principle
to which the person or body authorized to [act] is directed to
conform.'' \2\ The degree of acceptable agency discretion
varies according to the scope of the power conferred by
Congress.\3\
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\2\ Whitman v. American Trucking Associations, Inc., 531 U.S. 457,
472 (2001), quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S.
394, 409 (1928).
\3\ Id. at 475, citing Loving v. United States, 517 U.S. 748, 772-
773 (1996).
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It is the responsibility of agencies to be diligent in
developing these devilish details--and to ensure they
faithfully represent the will of the people expressed in the
laws passed by Congress. Agencies are not free to redesign the
laws Congress passes or simply initiate their own programs in
areas where Congress has not authorized them to act; rather,
all rules must flow from the agencies' authorization to act
under a preexisting statute. These laws include the enabling
statutes for the various Federal agencies, which lay out their
general powers and responsibilities, as well as more detailed
directives on distinct policy issues. If a rule is challenged
in court, the judicial review examines whether the rule is
faithful to the laws passed by Congress.\4\ Courts reviewing a
rule that is challenged will generally apply a standard called
the ``arbitrary-and-capricious'' test.\5\ This test focuses on
four questions: ``(1) whether the rulemaking record supports
the factual conclusions upon which the rule is based; (2) the
`rationality' or `reasonableness' of the policy conclusions
underlying the rule; (3) the extent to which the agency has
adequately articulated the basis for its conclusions; and (4)
the validity of the agency's statutory interpretations.'' \6\
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\4\ Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402
(1971).
\5\ Section 706(2) of the Administrative Procedure Act (APA)
provides that the reviewing court shall: ``hold unlawful and set aside
agency action, findings, and conclusions found to be--(A) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law; (B) contrary to constitutional right, power, privilege, or
immunity; (C) in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right; . . .'' 5 U.S.C. Sec. 706(2).
\6\ Jeffrey S. Lubbers, A Guide to Federal Agency Rulemaking, 318
(Third Edition, 1998) (hereinafter ``Federal Agency Rulemaking'').
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In addition to the substantive laws governing an agency's
mandate and the specific program to be administered, agencies
must follow the Administrative Procedure Act (APA), passed by
Congress in 1946.\7\ The APA lays out the basic procedural
steps that the Executive Branch must follow in issuing rules.
Under the APA, the heart of the most common type of rulemaking
is known as the ``notice and comment'' process.\8\ First, an
agency that plans to change a rule or write a new one must
publish a notice of proposed rulemaking in the Federal
Register. The proposal must describe the subject and issues
addressed in sufficient detail to allow for meaningful comment.
Interested parties then must have an opportunity to supply
information or views on the proposed rule. After deliberation,
the agency must respond to significant points that were raised
by the public \9\ and publish the final rule at least 30 days
before it is to take effect.\10\ These are the minimum
requirements. Often, depending upon additional statutory or
executive requirements, rulemaking involves much more elaborate
efforts to solicit and respond to public input.
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\7\ 5 U.S.C. Sec. Sec. 551 et seq.
\8\ See Federal Agency Rulemaking at 45.
\9\ Home Box Office, Inc. v. F.C.C., 567 F.2d 9, 35-36 (D.C.Cir.
1977).
\10\ 5 U.S.C. Sec. 553(d).
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This process lends legitimacy to rules that, while enacted
by an unelected bureaucracy that is part of the Executive
Branch, are the practical expression of a law's intent as
passed by the legislature. And equally important, the process
opens to public scrutiny rules that, despite sometimes
appearing arcane and technocratic and often flying below the
public radar, have wide-ranging impact on the health and well
being of Americans.
The three rules scrutinized in this report well illustrate
the point: They regulate the amount of a poison that can
legally be dissolved in Americans' drinking water, specify
whether development can occur on certain publicly owned forest
lands, and set the standards by which miners can extract
minerals from public land, including lands in the close
vicinity of homes and businesses. As one administrative law
scholar has said:
. . . notice and comment procedures serve fundamental
democratic purposes. An agency that adopts rules makes
new law without direct accountability to the voters.
Notice and comment procedure is a surrogate political
process. It helps to alleviate the undemocratic
character of agency rulemaking and enhances the
legitimacy of the process. It provides a channel that
allows interested persons to exercise political power
by indicating mass opposition to a proposed rule.
Notice and comment also enhances the ability of
Congress and the President to provide oversight of the
rulemaking process.\11\
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\11\ Michael Asimow, ``Interim-Final Rules: Making Haste Slowly,''
51 Ad. L. Rev. 703 (1999).
In short, the ``fine print'' of the rulemaking process
actually plays a critical role in our democracy by ensuring
that agencies that exercise significant law-making powers do so
in a way that is transparent, rational, orderly, and reflective
of the intent of those elected by the people to legislate.
The openness of the rulemaking process--and the values
expressed by the notice and comment procedure--came under
assault at the outset of the Bush Administration. White House
Chief of Staff Andrew H. Card, Jr. issued a memo (``the Card
memo'') which directed the delay of recently developed and
issued regulations despite the extensive process that had
helped to draft these rules and in apparent contravention of
the strict procedural requirements regarding their rollback or
revision. This report looks at the Card memo and the Bush
Administration's treatment of three specific regulations
affecting the environment and public health to determine
whether the postponements followed appropriate procedures and
to examine the process by which the administration reached
decisions to reconsider, or propose to modify or suspend the
regulations. Majority staff of the Governmental Affairs
Committee concludes that the administration has demonstrated
either a lack of attention to or a troubling disregard for the
fine points of revising regulations. Rather than carefully
weighing the substance and science of final rules to determine
whether they should be modified, it expended its energy in
devising methods to reach apparently pre-determined ends.
FINDINGS AND CONCLUSIONS
I. The Card Memo
A. What Happened
Although the occupant of the White House may change every 4
or 8 years, the bulk of the Federal Government's work carries
over from administration to administration, even when there is
a partisan turnover in power. It was thus not unusual that on
Inauguration Day, January 20, 2001, Federal agencies had a
large number of rules in the pipeline. Some were in the early
stages of development, while others had reached their
culmination, having been published in the Federal Register--the
official annals of the Federal regulatory world. Those rules
which were subject to the public scrutiny requirements of the
APA had undergone a lengthy development and review process
prior to their publication.
It was unusual, however, that on the afternoon of the
Inauguration, President Bush's Chief of Staff, Andrew H. Card,
Jr., issued a directive to agency heads ordering an immediate
freeze of recently issued and near-final regulations to allow
the administration's political appointees ``to carefully review
each of these last minute regulations set by the previous
administration.'' \12\ A White House spokesman described the
review: ``It's our responsibility and it's sound public
policy.'' \13\ It is worth noting that while the Clinton
Administration completed its work on certain rules just prior
to the new administration taking office, the rules that
agencies actually delayed in response to the Card memo had been
subjected to the APA's public notice and comment process and
thus by no stretch of the imagination could be considered
``last minute'' regulations.\14\
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\12\ The White House, Press Briefing by Ari Fleischer, April 17,
2001. http://www.white-house.gov/news/briefings/20010417.html; U.S.
General Accounting Office, Regulatory Review: Delay of Final Rules
Subject to the Administration's January 2001 Memorandum GAO-02-370R at
3 (February 15, 2002) (hereinafter ``GAO-02-370R'').
Of the prior three presidents, neither President Clinton nor the
first President Bush sought immediately to suspend regulations
published at the end of his predecessor's administration. President
Reagan did issue a memo (not on Inauguration Day) directing a more
narrow suspension of regulations, which also provided that such actions
should be taken ``to the extent permitted by law.'' 46 Fed. Reg. 11227
(February 6, 1981). This was followed by Executive Order 12291 which
directed postponement of major rules not yet effective and established
a government-wide regulatory process. E.O. 12291 (February 17, 1981), 3
C.F.R. 127. The director of President Clinton's Office of Management
and Budget (OMB) issued a memorandum to agencies requesting the
opportunity to review and approve new regulations under development and
the withdrawal from the Federal Register of all regulations not yet
published in the Federal Register which could be withdrawn under
existing procedures. 58 Fed. Reg. 6074 (January 25, 1993).
\13\ Eric Pianin, ``Bush Scrambles to Block Clinton Rush Orders,''
The Washington Post, January 21, 2001, A-18.
\14\ See U.S. General Accounting Office, Major Rules Database, July
2002.
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The Card memo directed department heads: (1) not to send
any proposed or final regulations to the Federal Register
without approval by a Bush-appointed department or agency head;
(2) to withdraw any regulations already submitted to the
Federal Register, but not yet published, until approved by a
Bush appointee; and, (3) for final rules already published in
the Federal Register but that had not yet taken effect, to
postpone the effective date for 60 days. The memorandum
provided that OMB could allow exceptions for emergency or
urgent situations relating to ``critical health and safety
functions,'' and it excluded regulations promulgated pursuant
to statutory or judicial deadlines.\15\ The Card memo failed to
direct agencies to comply with Federal laws governing
modification of regulations in the process of implementing its
instructions.
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\15\ Exemptions for emergencies were to be determined by the
director or acting director of OMB and statutory or court order
exclusions reported to the OMB Director. After issuance of the Card
memo, OMB issued a memorandum asking departments and agencies to
implement the memo. Memorandum for the Heads and Acting Heads of
Executive Departments and Agencies from Mitchell E. Daniels, Jr.,
Director, ``Effective Regulatory Review,'' January 26, 2001, M-01-09.
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Scores of rules at various stages of the regulatory process
were put on hold. OMB reported that 124 regulations at the
Federal Register office were pulled from the queue for further
review, (Card memo's Category 2) and that agencies withdrew 130
regulations from review by OMB.\16\ The General Accounting
Office (GAO) reported that 371 final rules--rules already
published by the Federal Register--were covered by Category 3
of the Card memorandum, only 90 of which were actually
postponed.\17\ More than half of the 90 postponed rules were
rules issued by the EPA, the USDA, the Department of
Transportation, and the Department of Health and Human
Services.\18\ On the one year anniversary of the Card memo, of
the 90 rules, the majority had gone into effect. Of the
remaining, one was withdrawn, three rules were withdrawn and
replaced, and nine other rules were modified.\19\ Eight of
these modified rules were altered without giving the public
prior opportunity for comment.\20\ Three rules which had been
delayed for initial periods longer than 60 days had not gone
into effect. Sixteen rules had been delayed more than once.\21\
As of the summer of 2002, six had been modified, three were
under modification (two were made partially effective and were
partially being modified), one was to be further revised, and
one continued to be delayed.\22\
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\16\ Office of Information and Regulatory Affairs, Office of
Management and Budget, Making Sense of Regulation: 2001 Report to
Congress on the Costs and Benefits of Regulations and Unfunded Mandates
on State, Local, and Tribal Entities at 35 (2001) (hereinafter ``2001
OMB Report'').
\17\ As reported by the GAO, there were three basic reasons that
agencies did not publish notices of delay for many of the rules that
were covered by the Card memorandum:
L. . . Federal agencies did not delay the effective dates for 281
(about 75 percent) of the 371 rules. The agencies published documents
in the Federal Register that explained why some of the rules' effective
dates were not being changed. For example, DOT published a notice in
the Federal Register explaining that four of its rules had effective
dates far enough in advance . . . that the intent of the Card
memorandum could be met without extending those dates. Also, 30 of the
281 rules that were not delayed were issued by independent regulatory
agencies . . . that were not required to extend the effective dates of
their rules.
GAO-02-370R at 4.
LOIRA officials told us that they, the agencies, and the White
House agreed shortly after the Card memorandum was issued that certain
types of numerous and noncontroversial rules . . . should be allowed to
take effect as scheduled.
GAO-02-370R at 5.
\18\ Id. at 5.
\19\ GAO-02-370R at 8 and 9.
\20\ GAO-02-370R at 9, 14, 20, 29, 30, 36, 38, 40, 41, and 43.
\21\ Id. at 8.
\22\ GAO-02-370R at 7, 17, 25-32, 34-35, 38-40, 45-47, 49; 66 Fed.
Reg. 28602 (May 23, 2001); 66 Fed. Reg. 35567 (July 6, 2001); 66 Fed.
Reg. 56608 (November 9, 2001); 66 Fed. Reg. 58912 (November 23, 2001);
67 Fed. Reg. 9180 (February 27, 2002); 67 Fed. Reg. 36368 (May 23,
2002).
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To facilitate implementation of the Card memo, the OMB
distributed to the departments and agencies a model Federal
Register notice to postpone for 60 days the effective date of
final rules already published in the Federal Register.\23\ The
model notice, reprinted in footnote 24 below, characterized the
effective-date delay as a final rule and explained that the
action did not require notice and comment because the APA's
exemptions for a ``rule of procedure,'' 5 U.S.C.
Sec. 553(b)(A), or ``good cause,'' 5 U.S.C. Sec. Sec. 553
(b)(B) and (d)(3), were applicable.\24\ In postponing the
effective dates, the departments basically followed the model
notice distributed by OMB. In some cases, the practice of not
seeking public comment extended beyond the initial 60-day
delay. The GAO reported that of the 16 rules which were delayed
for more than 60 days, ``[f]or all but two of these rules, the
agencies announced the additional delays without providing the
public with a prior opportunity to comment, again generally
citing the APA's rule of procedure and/or good cause
exceptions.'' \25\
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\23\ The model notice was transmitted by a letter from Mitchell E.
Daniels, Jr., Director, Executive Office of the President, Office of
Management and Budget to The Honorable Joseph I. Lieberman, Ranking
Member, Committee on Governmental Affairs, U.S. Senate, Washington,
D.C., February 27, 2001.
\24\ The model notice instructs departments and agencies to include
the following in their Federal Register notices:
LIn accordance with the memorandum of January 20, 2001, from the
Assistant to the President and Chief of Staff, entitled ``Regulatory
Review Plan,'' published in the Federal Register on January 24, 2001,
this action temporarily delays for 60 days the effective date of the
rule entitled [title of published final rule], published in the Federal
Register on [date of publication], [Fed Reg cite]. That rule concerns
[short summary of what rule is about if it is not obvious from the
title of the rule]. To the extent that 5 U.S.C. section 553 applies to
this action, it is exempt from notice and comment because it
constitutes a rule of procedure under 5 U.S.C. section 553(b)(A).
Alternatively, the Department's [or agency's] implementation of this
rule without opportunity for public comment, effective immediately upon
publication today in the Federal Register, is based on the good cause
exceptions in 5 U.S.C. section 553(b)(B) and 553 (d)(3), in that
seeking public comment is impracticable, unnecessary and contrary to
the public interest. The temporary 60-day delay in effective date is
necessary to give Department officials the opportunity for further
review and consideration of new regulations, consistent with the
Assistant to the President's memorandum of January 20, 2001. Given the
imminence of the effective date, seeking prior public comment on this
temporary delay would have been impractical, as well as contrary to the
public interest in the orderly promulgation and implementation of
regulations. [Add specific ``good cause'' arguments, as appropriate, to
the specifics of the rule involved.]
\25\ GAO-02-370R at 8.
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The Card memo and its implementation raise a number of
concerns--some legal, others related more generally to whether
the administration displayed a sufficiently healthy respect for
the regulatory process. Perhaps the most troubling aspect of
the Card memo was its instruction regarding its third
category--final rules that had been published but had not yet
taken effect--a category applicable to two rules discussed
later in this report: The roadless area conservation rule and
the arsenic rule.
B. Legal Concerns
By instructing agencies and departments to change the
effective date of substantive rules, the Card memo erroneously
suggested that agencies have greater authority to unilaterally
alter final rules which have not yet become effective than they
have over those already being implemented. There is no basis
for such a distinction. Under the APA, a rule is final once it
is ``promulgated.'' There is no question that once a rule has
been signed by the agency head and published in the Federal
Register, it has been promulgated.\26\ Moreover, there is no
doubt that a rule's effective date is an integral and
substantial component of a final rule, and it is established
that a change or suspension in the effective date (either
before or after it has gone into effect) may only be
accomplished through a further notice and public comment period
(unless an exception is appropriate).\27\ As noted, such
decisions must be supported and have a rational basis. If not,
an administration could choose to repeatedly and indefinitely
postpone regulations as it saw fit--with no public engagement
or accountability.
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\26\ The D.C. Circuit observed in Kennecott Utah Copper Corp. v.
Department of the Interior, 88 F.3d 1191, 1212 (D.C. Cir. 1996), while
there may be uncertainty about the precise date upon which a regulation
is promulgated, ``it is surely either the date of issuance or other
formal announcement by the agency, the date of filing with the Office
of the Federal Register, or the date of publication in the Federal
Register.''
\27\ See, e.g. Natural Resources Defense Council, Inc., v.
Environmental Protection Agency, 683 F.2d 752, 759 (3d Cir. 1982)
(holding that indefinite suspension of a final rule that had not yet
become effective but was promulgated for judicial review purposes was a
``rulemaking'' subject to notice and comment under the APA);
Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802, 812 (D.C.
Cir. 1983); Environmental Defense Fund, Inc. v. EPA, 716 F.2d 915, 920
(D.C. Cir. 1983); Natural Resources Defense Council v. EPA, 725 F.2d
761, 774 (D.C. Cir. 1984); Associated Builders and Contractors, Inc. v.
Herman, 976 F. Supp. 1, 10 (D.D.C. 1997).
---------------------------------------------------------------------------
The Bush Administration's attitude toward compliance with
the requirements of the APA is a matter of concern, as it could
manifest itself in failures to comply with other legal
requirements. By asserting that the 60-day postponement of
rules published--but not yet effective--fell under two
exceptions to the law's notice and comment requirements, the
administration tacitly acknowledged that the APA requirements
would normally apply. However, the effort to gain blanket
immunity from the APA's requirements by instructing government-
wide reliance on the same exemptions was inappropriate. The
first claimed exemption, that the delays are ``procedural
rules'' and thereby exempt from notice and comment, could not
plausibly be applied to all final rules affected by the Card
memorandum. The ``procedural rule'' exemption is applicable to
matters such as an agency rule governing the conduct of its
proceedings or delegating authority or duties within the
agency.\28\ Such rules ``address how the agency goes about its
substantive work. They do not affirmatively implement the
agency's substantive responsibilities.'' \29\ The vast majority
of the rules that were delayed by the Card memo directly affect
the substantive work of the agencies, and therefore, the
blanket procedural exception was flatly inapplicable.\30\
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\28\ 5 U.S.C. Sec. 553 (b)(A). See, Federal Agency Rulemaking at
53.
\29\ A Rush to Regulate--The Congressional Review Act and Recent
Federal Regulations, Hearing before the Subcommittee on Energy Policy,
Natural Resources and Regulatory Affairs, House Committee on Government
Reform, Serial No. 107-14 (March 27, 2001) (statement of Thomas O.
McGarity, W. James Kronzer Chair, University of Texas School of Law)
127.
\30\ GAO-02-370R, Appendix 1. The Appendix contains a chart which
lists the 90 rules and summarizes the actions taken. It also contains
the agency's characterization of whether the rules were ``significant
or substantive in nature.'' Based on the description of the rules, two
or three, at most a handful, involve agency procedure.
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The second basis in the model Federal Register notice for
justifying the effective date delays was the APA's ``good
cause'' exception. The APA provides that agencies may issue or
modify a rule without the customary notice and comment where,
for ``good cause,'' it finds that such procedures would be
``impracticable, unnecessary, or contrary to the public
interest.'' \31\ The model Federal Register notice distributed
to and used by the agencies repeated this language as its
justification of ``good cause'':
---------------------------------------------------------------------------
\31\ 5 U.S.C. Sec. 553(b)(B) provides a ``good cause'' exemption
for rules from notice and comment procedures, and 5 U.S.C.
Sec. 553(d)(3) a ``good cause'' exemption from advance publication.
. . . to give Department officials the opportunity for
further review and consideration of new regulations,
consistent with the Assistant to the President's
[Card's] memorandum of January 20, 2001. Given the
imminence of the effective date, seeking prior public
comment on this temporary delay would have been
impractical, as well as contrary to the public interest
in the orderly promulgation and implementation of
regulations.\32\
---------------------------------------------------------------------------
\32\ Supra, note 24.
In other words, the Card memo instructed the agencies to find
``good cause'' for putting off the rules in the fact that they
had to comply with the Card memo's mandate to put off the
rules.
Courts have made clear that merely invoking the term ``good
cause'' is not enough to justify the exception's use to
dispense of the critical notice and comment process.\33\ When
the use of the ``good cause'' exception is challenged, \34\
courts will scrutinize the facts to determine whether it is, in
fact, justified, and will only reluctantly uphold reliance on
the ``good cause'' exception.\35\ Court interpretations of what
constitutes ``good cause'' vary, \36\ but the sheer political
determination of a new administration to suspend the work of
its predecessor has not been among them. In fact, in a
challenge to the summary suspension of a rule based solely on
an executive order issued by President Reagan directing the
postponement of major rules, the court voided the suspension
when the agency failed to show why it could not comply with the
notice and comment requirements.\37\ The D.C. Circuit has
stated its firm understanding that the exceptions of the
provisions of section 553,
---------------------------------------------------------------------------
\33\ Mobil Oil Co. v. Department of Energy, 610 F.2d 796, 803
(Temp. Emer. Ct. App. 1979).
\34\ Challenges to specific delays resulting from the Card
memorandum were rare and there are no rulings on whether the blanket
assertion that the President's appointees needed time ``for further
review and consideration of new regulations' was adequate ``good
cause'' to justify delays of scores of final regulations without notice
and comment. One case involved a challenge by several states and public
interest groups to the Department of Energy's actions to postpone the
final rule that was issued to establish energy efficiency standards for
residential central air conditioners and heat pumps. The case was
dismissed by the District Court on the grounds that jurisdiction lies
in the U.S. Court of Appeals and the challenge is now pending in the
Second Circuit. State of New York v. Abraham, 199 F. Supp.2d 145
(S.D.N.Y. 2002).
\35\ Council of the Southern Mountains v. Donovan, 653 F.2d 573
(D.C. Cir. 1981), is an example. This case involved a decision by the
Secretary of Labor to postpone a mine safety regulation for 6 months
without notice and comment procedures due, in part, to the
unavailability of safety devices. The D.C. Circuit upheld the action
under the ``good cause'' exception, but only after carefully
scrutinizing the decision and detailing five factors that argued for
the delay. Those factors included circumstances beyond the agency's
control and evidence that it had done everything to implement the
regulations on time. Even so, the court said that the delay constituted
an ``extremely close case,'' and stressed that its decision should not
be interpreted to lower the high threshold under the good cause
exception.
\36\ Ellen R. Jordan, ``The Administrative Procedure Act's `Good
Cause' Exemption,'' 36 Ad. L. Rev. 113, 116 (1984).
\37\ Natural Resources Defense Council v. Environmental Protection
Agency, 683 F.2d 752, 761-62 (3d Cir. 1982).
. . . will be narrowly construed and only reluctantly
countenanced. . . . As the legislative history of the
APA makes clear, moreover, the exceptions at issue here
are not ``escape clauses' that may be arbitrarily
utilized at the agency's whim. . . . Rather, use of
these exceptions by administrative agencies should be
limited to emergency situations . . . furthermore, the
grounds justifying the agency's use of the exception
should be incorporated within the published rule.\38\
(Citations omitted)
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\38\ American Federation of Government Employees, AFL-CIO v. Block,
655 F.2d 1153, 1156 (D.C. Cir. 1981) (quoting State of New Jersey,
Department of Environmental Protection v. Environmental Protection
Agency, 626 F.2d 1038, 1045 (D.C. Cir. 1980)). See also, Sharon Steel
Corp. v. EPA, 597 F.2d 377, 379 (3d Cir. 1979); American Iron & Steel
Institute v. EPA, 568 F.2d 284 (3d Cir. 1977).
While courts have found that emergency situations exist in some
cases--for example, in response to a court order \39\ or a
pressing health and safety matter \40\--the ``situations are
indeed rare,'' and ``courts will examine closely proffered
rationales justifying the elimination of public procedures.''
\41\ In addition, the exemption for ``procedural rules'' is not
available as an alternative to the ``good cause'' exemption if
the action taken by the agency substantially alters the rights
or interests of the regulated parties.\42\
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\39\ American Federation of Government Employees, AFL-CIO, supra
note 38. This case involved an order issued in response to a suit
alleging discrimination in the enforcement of inspection rates in
poultry processing plants.
\40\ Washington State Farm Bureau, v. Marshal, 625 F.2d 296, 306-
308 (D.C. Cir. 1980).
\41\ American Federation of Government Employees, AFL-CIO, supra
note 38, at 1158, n. 6. United Steel Corp. v. Environmental Protection
Agency, 595 F.2d 207 (5th Cir. 1979) (argument that statutory deadlines
made prior notice and comment impracticable and contrary to the public
interest rejected); Sharon Steel Corp. v. Environmental Protection
Agency, 597 F.2d 377 (3d Cir. 1979) (mere existence of deadlines for
agency action, whether set by statute or court order, does not in
itself constitute good cause for dispensing with notice and comment).
\42\ Jem Broadcasting Co. v. F.C.C., 22 F.3d 320 (D.C. Cir. 1994).
---------------------------------------------------------------------------
It is hard to see how the desire for a blanket postponement
of a broad range of rules issued by the previous administration
could possibly qualify under such a narrow exemption. In short,
the effect of the Card memorandum's instructions to agency and
department heads to delay final rules without attention to
these legal requirements requiring public participation
encouraged government-wide non-compliance with the requirements
of the APA. Thus, the Card memo set an unacceptable tone in the
Executive Branch--an unhealthy disregard for the important
procedural constraints by which all administrations must abide.
The Executive Branch is charged with the faithful
implementation of all the laws passed by Congress, not their
selective execution.\43\ In the view of Majority staff, the
Bush Administration's early actions set a troubling tone and
raise concern as to whether they set a potentially dangerous
precedent.
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\43\ As noted above, the second instruction contained in the Card
memo was to withdraw any regulations already submitted to the Federal
Register, but not yet published. None of the three regulations
discussed later in this report fall within that category. Some Federal
courts consider that the date of filing a regulation with the Office of
the Federal Register is the date upon which a regulation is
promulgated, thus raising a question about the appropriateness of such
withdrawals. Kennecott Utah Copper Corp. v. Department of the Interior,
88 F.3d 1191, 1212 (D.C. Cir. 1996).
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C. Public Participation
In addition to concerns about the administration's failure
to comply with the law, the Card memo suspensions raise
troubling questions about the Bush Administration's regard for
the importance of public participation in the regulatory
process. As discussed above, the APA public participation
mandate is not to be dispensed with lightly; the opportunity
for public comment is the public's central means of ensuring
that an agency has taken into account all ``relevant factors,''
as it is required to do in making its decision.\44\ For
instance, in cases where a proposed rule is based on a
scientific decision, courts have interpreted the APA to require
the rulemaking agency to indicate the scientific literature and
studies it relies upon during the public comment period.\45\ It
is crucial to the workings and spirit of democracy that even
regulations that would be characterized as arcane are not
hidden from public oversight.
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\44\ Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416
(1971).
\45\ See United States v. Nova Scotia Food Products Corp., 568 F.2d
240, 252 (2d. Cir. 1977); Portland Cement Ass'n. v. Ruckelshaus, 486
F.2d 375, 400 (D.C. Cir. 1973).
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Moreover, the rules being put on hold had already been
through the procedural wringer when they were issued in the
first place. In other words, they had already been subjected to
an interchange between the public and the government--an
interchange that, in some cases, occurred over a period of
years and involved a significant commitment of resources and
staff. The arguments were made and considered, necessary
analysis completed, then policy decisions made and a final rule
issued. It is disturbing that, with the stroke of a pen, no
participation by the public, and generally no justification
offered other than the reasons provided in the model Federal
Register notice, those final decisions were put on hold, giving
short shrift to the role of the public that participated in the
notice and comment process in the initial development of the
rule.
In some cases, as noted above, following the 60 day or
longer delays, the agencies and departments modified, or even
withdrew, the final rules. This is not necessarily improper;
agencies have some latitude to modify, or even reverse, a
rule.\46\ However, under the APA, when doing so they must
generally go through the same process required for enacting a
rule in the first place, which includes a public notice and
comment period--a process which was not always followed.
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\46\ American Trucking Ass'ns., Inc. v. Atchison, Topeka & Santa Fe
Railroad Co., 387 U.S. 397 (1967); Permian Basin Area Rate Cases, 390
U.S. 747 (1968).
---------------------------------------------------------------------------
II. The Bush Administration's Attempts to Change Three Rules
Senator Lieberman, then-Ranking Member of and now Chairman
of the Committee on Governmental Affairs, was concerned that
the Card memorandum reviews would be used to turn back the
clock on important health, safety, and environmental
protections and undo years of work on important
regulations.\47\ EPA Administrator Whitman's announcement on
March 20, 2001, that the EPA would propose withdrawing its
standard for arsenic in drinking water \48\ increased those
concerns, thereby prompting Senator Lieberman to send letters
to the Department of Agriculture, the Department of the
Interior, and the Environmental Protection Agency requesting
information and documents related to agency decisions on three
final regulations: USDA's rule safeguarding roadless areas of
the national forests from environmental degradation, DOI's
hardrock mining rule, and EPA's drinking water standard
lowering the amount of arsenic allowed in drinking water.\49\
The documents ultimately provided to the Committee or reviewed
by the Majority staff demonstrate a lack of a careful review of
the rules and the reasons and the science behind the rules
prior to the agency's proposals to suspend or take other action
with regard to the rules. Instead, in these three cases, the
Bush Administration appears to have pre-determined that the
regulations should be changed, and sought to employ whatever
tools and tactics it deemed convenient to effect that change.
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\47\ Letter from Senator Joseph I. Lieberman and Representative
Henry A. Waxman to the Honorable Mitchell E. Daniels, Jr., Director,
Office of Management and Budget, Washington, D.C., February 4, 2001.
\48\ Communications, Education, and Media Relations, U.S.
Environmental Protection Agency, ``EPA to Propose Withdrawal of Arsenic
in Drinking Water Standard; Seeks Independent Reviews,'' March 20,
2001.
\49\ Letters from Joseph I. Lieberman, Ranking Member, Committee on
Governmental Affairs, to the Honorable Christie Whitman, Administrator,
Environmental Protection Agency, the Honorable Ann M. Veneman,
Secretary of Agriculture, and the Honorable Gale A. Norton, Secretary
of the Interior, Washington, D.C., March 22, 2001.
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A. Roadless Area Conservation Rule
The USDA's Forest Service has stewardship over 192 million
acres of Federal land, \50\ including 155 national forests.\51\
It is responsible for managing those publicly-owned lands for
multiple uses, including outdoor recreation, range, timber,
watershed, and wildlife and fish purposes.\52\ The Multiple-Use
Sustained-Yield Act of 1960 recognizes that ``some land will be
used for less than all of the resources, and not necessarily
the combination of uses that will give the greatest dollar
return or the greatest unit output.'' \53\ The duties Congress
has assigned to the Secretary of Agriculture include regulating
the occupancy and use of the national forest system lands and
preserving the forests from destruction.\54\ The National
Forest Management Act of 1976 (NFMA) \55\ authorizes the
Secretary to issue regulations implementing its provisions and
specifying guidelines for the development of resource
management plans for land in the national forest system.\56\
These guidelines are to take into account a variety of economic
and environmental considerations, \57\ including ensuring that
timber will be harvested only where watershed conditions will
not be irreversibly damaged.\58\ Roads are to be allowed in the
forests to meet transportation needs on an economical and
environmentally sound basis.\59\
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\50\ Ross W. Gorte and Carol Hardy Vincent, ``Public (BLM) Lands
and National Forests,'' Congressional Research Service Issue Brief for
Congress, IB10076, June 14, 2002 at CRS-1.
\51\ Office of the Federal Register, National Archives and Records
Administration, The United States Government Manual, 2001-2002 at 125.
\52\ 16 U.S.C. Sec. 528.
\53\ 16 U.S.C. Sec. 531. The Multiple-Use Sustained-Yield Act of
1960 also requires ``sustained yield,'' defined as the ``achievement
and maintenance in perpetuity of a high-level annual or regular
periodic output of the various renewable resources of the national
forest without impairment of the productivity of the land.'' 16 U.S.C.
Sec. 531. It authorizes the ``multiple use'' of the national forests
``in the combination that will best meet the needs of the American
people'' and recognizes that ``establishment and maintenance of areas
of wilderness'' areas is consistent with the purposes of the act. 16
U.S.C. Sec. 529.
\54\ 16 U.S.C. Sec. 551.
\55\ Pub. L. 94-588, 90 Stat. 2949 (1976).
\56\ 16 U.S.C. Sec. 1604 (a). These are to be coordinated with the
land and resource management planning process of State and local
governments and other Federal agencies.
\57\ 16 U.S.C. Sec. 1604 (g).
\58\ 16 U.S.C. Sec. 1604 (g)(3)(E)(i).
\59\ 16 U.S.C. Sec. 1608.
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Responding to concerns about the cost of road maintenance,
the adverse impact of development on watersheds and ecosystem
health, and the continuing controversies associated with the
development of roadless areas, on January 12, 2001, the Clinton
Administration issued a final regulation \60\ prohibiting most
new road construction and timber harvesting on 58.5 million
acres of ``inventoried'' roadless areas within the national
forest system.\61\ Inventoried roadless areas are areas
identified by the Forest Service through one or more formal
review procedures.\62\ They generally contain the
characteristics which are listed in the footnote below, \63\
and were designated on maps in the Environmental Impact
Statement supporting the rule.\64\ Over the past 20 years,
roads have been constructed in an estimated 2.8 million of
National Forest ``inventoried'' roadless areas.\65\ The Forest
Service estimated its backlog for upkeep of its existing
373,000 mile road system, used by an estimated 1.7 million
vehicles a year, \66\ at $8.4 billion.\67\ The area affected by
the rule included 9.3 million acres in the Tongass National
Forest in Alaska, a part of the Pacific Coast's temperate
rainforest ecosystem encompassing many undisturbed
watersheds.\68\
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\60\ 66 Fed. Reg. 3244 (January 12, 2001). The rule was effective
March 13, 2001. The Department also published two other related rules:
A rule affecting roads that make up the Forest Development
Transportation system focused on providing and maintaining the minimum
forest transportation system needed for safe and efficient travel. 66
Fed. Reg. 3206. (January 12, 2001). New planning regulations required
that changes in the use of roadless areas be determined through the
planning process. 65 Fed. Reg. 67514 (November 9, 2000).
\61\ 66 Fed. Reg. 3246 (January 12, 2001).
\62\ The Forest Service has conducted several reviews of
inventoried roadless areas, beginning in 1972 with a national screening
process to identify areas that would be suitable for preservation as
wilderness areas. A second national review of roadless areas was
completed in 1979 and additional reviews through the planning process
have been conducted since then. Id.
\63\ A road was defined in the Roadless Conservation Area rule as a
``motor vehicle travelway over 50 inches wide, unless designated and
managed as a trail.'' 36 CFR Sec. 294.11. The rule also described
inventoried roadless areas as generally characterized by several
features: High quality or undisturbed soil, water, and air; sources of
public drinking water; diversity of plant and animal communities;
habitat for threatened, endangered, proposed, candidate and sensitive
species and for those species dependent on large, undisturbed areas of
land; primitive, semi-primitive non-motorized and semi-primitive
motorized classes of dispersed recreation; reference landscapes;
natural appearing landscapes with high scenic quality; traditional
cultural properties and sacred sites; and other locally identified
unique characteristics. 66 Fed. Reg. 3272 (January 12, 2001).
\64\ Maps showing where inventoried roadless areas are located are
reprinted in Volume 2 of the Final Environmental Impact Statement. U.
S. Department of Agriculture, Forest Service Roadless Area
Conservation, Final Environmental Impact Statement, Vol. 2 (November
2000) (hereinafter ``Roadless Area FEIS'').
\65\ 66 Fed. Reg. 3246 (January 12, 2001).
\66\ 63 Fed. Reg. 4350 (January 28, 1998).
\67\ 64 Fed. Reg. 56306 (October 19, 1999).
\68\ The Tongass National Forest has a full complement of native
species including bald eagles, wolves, black-tailed deer, brown bears,
and five species of anadromous salmon. Letter to the Honorable William
J. Clinton, President of the United States, Washington, D.C., from Paul
Alaback, Ph.D., Assistant Professor, School of Forestry, University of
Montana and more than 200 additional signatories who are scientists,
December 20, 1999.
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The inventoried roadless areas, which have long received
special management attention \69\--with many areas being
managed by the Forest Service as natural, primitive, or
wilderness areas--are found within 661 of the over 2,000 major
watersheds in the continental United States.\70\ These areas
generally have high quality or undisturbed water and air and
serve as sources of public drinking water for millions of
Americans, containing all or portions of 354 municipal
watersheds.\71\ The watersheds provide about 14 percent of the
water flow of the nation, 33 percent of which is in the
west.\72\ Healthy watersheds catch, store, and safely release
water over time, protecting downstream communities from
flooding, providing clean water for many uses, and helping
maintain abundant fish and wildlife populations. They are also
biological strongholds for populations of threatened and
endangered species. Of the Nation's species listed or proposed
for listing under the Endangered Species Act, approximately 25
percent of animal species and 13 percent of plant species are
likely to have habitat within inventoried roadless areas.\73\
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\69\ Pamela Baldwin, ``The National Forest System Roadless Areas
Initiative,'' Congressional Research Service Report for Congress,
RL30647, January 22, 2002 at 4 (hereinafter ``RL30647'').
\70\ Roadless Area FEIS, Vol. 1 at 3-50.
\71\ 66 Fed. Reg. 3245 (January 12, 2001).
\72\ 66 Fed. Reg. 3246 (January 12, 2001).
\73\ 66 Fed. Reg. 3245 (January 12, 2001).
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The rule promulgated by the Clinton Administration in
January 2001 restricted logging to activities that maintained
or restored the forest, to existing timber contracts, and to
activities for which an environmental analysis was already
formally underway. Existing leases, rights, and statutory
rights were preserved, as well as roads needed for these leases
and rights. The rule also contained specific provisions to
address concerns about the dangers of wildfires. In appropriate
circumstances, timber could be removed to reduce the risk of
uncharacteristic wildfire effects and, in the case of an
imminent threat of fire that would cause the loss of life or
property, the construction of roads could be authorized.\74\
The USDA also issued a final policy, previously the subject of
public comment, which provided for science-based analysis \75\
in assessing the need for new road construction and emphasized
the maintenance and decommission of existing roads rather than
the construction of new roads.\76\
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\74\ 66 Fed. Reg. 3272-73 (January 12, 2001).
\75\ 66 Fed. Reg. 3219 (January 12, 2001).
\76\ The policy described a ``science-based roads analysis'' as an
analysis, conducted through an ``authorized'' process by an
interdisciplinary team and which provides critical information needed
to identify and manage a minimum road system. It identified the process
outlined in the U.S. Department of Agriculture's publication, ``Roads
Analysis: Information Decisions About Managing the National Forest
Transportation System'' as an ``authorized science-based road
analysis.'' Misc. Report FS-643 (1999). 66 Fed. Reg. 3234 (January 12,
2001).
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By imposing national limitations on road construction and
timber harvesting, the rule represented a significant departure
from the prior practice of making decisions regarding roadless
areas on a forest-by-forest basis. The stated justification for
the rule addressed concerns about the cumulative impact of
these piecemeal decisions:
If management decisions for these areas were made on
a case-by-case basis at a forest or regional level,
inventoried roadless areas and their ecological
characteristics and social values could be
incrementally reduced. . . . Added together, the
nation-wide results of these reductions could be a
substantial loss of quality and quantity of roadless
area values and characteristics over time.\77\
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\77\ 66 Fed. Reg. 3252-53 (January 12, 2001).
In short, the rule made clear that after years of incursions,
the Federal Government would limit further erosion of roadless
areas.
(1) The Rule's Development
The rule had been developed over the course of several
years. In January 1998, the Forest Service published an Advance
Notice of Proposed Rulemaking to solicit comments on revising
the National Forest Road system.\78\ Pending its work on a
comprehensive overhaul of the forest road policy, the Forest
Service issued a second notice proposing temporary suspension
of road construction and reconstruction.\79\ After holding 31
open houses attended by an estimated 2,300 people and receiving
53,000 comments, the agency issued an interim rule on February
12, 1999 which suspended road construction for 18 months.\80\
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\78\ 63 Fed. Reg. 4350 (January 28, 1998).
\79\ 63 Fed. Reg. 4350-51 (January 28, 1998).
\80\ 64 Fed. Reg. 7290 (February 12, 1999).
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On October 13, 1999, President Clinton directed the Forest
Service to develop and propose for public comment regulations
that would provide long-term protection for already inventoried
roadless areas.\81\ On October 19, 1999, following the
procedures provided for in the National Environmental Policy
Act (NEPA), the agency published a Notice of Intent to prepare
a Draft Environmental Impact Statement (DEIS) to consider the
effects of eliminating road construction activities in the
remaining ``un-roaded'' portions of inventoried roadless areas
and of establishing criteria to ensure that social and
ecological values would be protected through the forest
planning process. (NEPA requires Federal agencies to prepare an
environmental impact statement regarding major Federal actions
significantly affecting the quality of the human environment.)
\82\ The notice also initiated a rulemaking process to restrict
road construction in the inventoried roadless areas.\83\ In
response to the Notice of Intent, about 16,000 people attended
187 public meetings. More than 517,000 responses were received
by the time the next steps were taken, when the Forest Service
published a DEIS on May 10, 2000.\84\ It also published a
proposed rule prohibiting road construction and reconstruction
in most inventoried roadless areas of the national forest
system, and requiring evaluation of roadless area
characteristics when revising land and management plans.\85\
Following publication of the DEIS, the Forest Service held two
cycles of public meetings regarding the draft and the proposed
rule--about 230 for information sharing and about 200 for
collecting oral and written comments.\86\ About 16,000 people
attended comment meetings, at which nearly 7,000 (or 44 percent
of the attendees) spoke.\87\ The Forest Service received more
than 1.1 million written comments on the DEIS which it analyzed
and addressed.\88\
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\81\ 66 Fed. Reg. 3244, 3247 (January 12, 2001).
\82\ 42 U.S.C. Sec. 4332(C).
\83\ 64 Fed. Reg. 56306 (October 19, 1999).
\84\ Roadless Area FEIS, Vol. 1 at 1-7.
\85\ 65 Fed. Reg. 30276 (May 10, 2000).
\86\ 66 Fed. Reg. 3248 (January 12, 2001).
\87\ Roadless Area FEIS, Vol. 1 at 1-7.
\88\ Roadless Area FEIS, Vol. 1 at 1-7 and Vol. 3.
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In response to public comments, the final rule, issued on
January 12, 2001, included a prohibition on timber
harvesting.\89\ Eight lawsuits were filed in six Federal
judicial districts--the most significant of which, for the
purposes of this review, were filed on January 8 and 9, 2001,
in U.S. District Court in Idaho, even before the rule appeared
in the printed Federal Register.\90\
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\89\ 66 Fed. Reg. 3256 (January 12, 2001). Although not contained
in the proposed rule, this alternative was described in the Draft
Environmental Impact Statement and was identified as a preferred
alternative in the Final Environmental Impact Statement. The rule was
issued in accordance with authority contained in a variety of laws,
including those providing for the general management, regulation of
occupancy, and preservation of the forests. 16 U.S.C. Sec. Sec. 475,
529, 551, 1608, 1613, as cited at 66 Fed. Reg. 3272. In addition to the
Multiple Use Sustained Yield Act of 1969 and the National Forest
Management Act of 1976 mentioned above, the Organic Act of 1897 directs
that the national forests be managed to improve and protect the forests
or ``for the purpose of securing favorable conditions of water flows,
and to furnish a continuous supply of timber for the use and
necessities of citizens of the United States; . . .'' 16 U.S.C.
Sec. 475. It authorizes the Secretary to issue regulations to
``regulate the occupancy and use of the forests and to preserve them
from destruction; . . .'' 16 U.S.C. Sec. 551.
\90\ Kootenai Tribe of Idaho v. Veneman, CV01-10-N-EJL (D. Id.
filed January 8, 2001) and State of Idaho v. United States Forest
Service, CV01-11-N-EJL (D. Id. filed January 9, 2001).
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(2) Department Delays and Reviews Rule
Soon after taking office, and in accordance with the Card
memo's instructions, USDA Secretary Ann Veneman postponed the
rule's effective date for 60 days. The notice, which appeared
in the Federal Register on February 5, 2001, used the OMB model
notice and delayed the effective date from March 13 to May 12,
2001 to give ``Department officials the opportunity for further
review and consideration of new regulations. . . .'' \91\
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\91\ 66 Fed. Reg. 8899 (February 5, 2001).
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As discussed above, the roadless rule by this time was a
final regulation--the product of an extensive and public
process. It was, without dispute, a substantive rule--not, in
any reasonable interpretation, simply a rule affecting agency
procedure. Therefore, the procedural exemption to the APA was
not applicable. Furthermore, the USDA offered no explanation to
justify invoking the ``good cause'' exception from public
comment--neither in the Federal Register notice nor in any
decision documents for the Secretary--other than the model
notice's generic reference to the imminence of the effective
date and the desire for review by new administration
officials--justifications that were, in Majority staff's view,
inappropriate.
Because the rule had been developed during the Clinton
Administration with extensive public participation, one would
hope that before upsetting the results of this extensive
process, the new administration would carefully review the
rule, the data supporting it, and undertake to revise it only
if there appeared to be a rational basis for doing so, within
the requirements of the applicable statutes. Based on the
documents provided by the agencies, however, it appears no such
review was undertaken. Nevertheless, the rule--about which OMB
staff specifically requested information regarding compliance
with the Card memo directive \92\--was targeted for delay and/
or alteration.
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\92\ E-mail from Desk Officer, Office of Information and Regulatory
Affairs, Office of Management and Budget, to staff at U.S. Department
of the Interior and U.S. Department of Agriculture, ``suspension of
effective date,'' January 24, 2001.
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The USDA produced and the Majority staff reviewed
approximately 20,000 pages of departmental documents. While the
documents contain reference materials that would be relevant to
a rule review, \93\ they also contain nothing that could be
considered work product, analysis, research, or narrative
reflecting a systematic review of either the substance or
procedure associated with promulgation of the final rule.
Similarly, there are no tasking memoranda creating such
reviews, schedules for completing such a task within such a
relatively short period of time, or identifiable work product
that would have been produced from such reviews. There is a one
page document which listed five issues regarding implementation
of the rule, \94\ and a plan to gather information from the
field to ``substantiate NFMA violations.'' \95\
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\93\ These include sections of the Environmental Impact Statement,
tallies of affected lands, a paper on the history of laws governing
forest lands, etc.
\94\ The issues listed were impacts on the national fire plan,
conflicts with policies for leasing minerals, lack of exemptions for
utility corriders and provisions for necessary adjustment to
boundaries, and questions regarding the effective date. Memorandum from
staff at Intermountain Region, U.S. Forest Service to Dave Tenny,
Acting Under Secretary for Natural Resources and Environment, Subject:
``Roadless Area Conservation Rule Issues,'' March 7, 2001.
\95\ E-mail from David Tenny, U.S. Department of Agriculture to
OSECNET.UASEC. Christopher, ``Draft Rule,'' April 3, 2001.
---------------------------------------------------------------------------
In place of a focus on whether the rule should be modified,
the administration concerned itself with tactics. The documents
reviewed contained proposals and option papers discussing
tactically how to achieve the desired result--an overturning of
the rule as written.\96\ The preferred result was to replace
the rule with a return to the traditional decisionmaking by
local Forest Service officials.\97\ In other words, it appears
that a pre-determination had been made that the new national
requirements were wrong and should be reversed--the issue for
the department was how to achieve that goal. Various options
for accomplishing this were addressed, such as further
extensions of the effective date to allow time for a
replacement rule and an expedited rulemaking process. A USDA-
produced document entitled ``Talking Points and Options for
Rescinding the Roadless Rule,'' with multiple copies, laid out
the options as follows:
---------------------------------------------------------------------------
\96\ These include, for example, several undated, unidentified
documents with the headings ``Roadless Options''; ``Talking Points &
Options for Rescinding the Roadless Rule''; and ``Privileged &
Confidential: Rulemaking Options for Adjusting the Roadless Rule.''
\97\ Unidentified, undated document: ``Privileged & Confidential:
Rulemaking Options for Adjusting the Roadless Rule''; Draft Talking
Points, dated 4/6 and part of Communication Plan, Roadless Area
Conservation Rules. Interestingly, one strategy advanced in an undated,
unsigned note addressed to ``Dave'' for rescinding the rule involved
announcing, as did the EPA with respect to arsenic, that the rule would
be rescinded, then seeking public comment. ``That will make it hard for
opposition groups to rally support for another million or two comments.
Basically, the announcement makes it clear the debate is over.''
(1) extend the effective date before May 12, remove
---------------------------------------------------------------------------
the rule later, no comment period.
(2) rescind the rule ``immediately'', no comment
period.
(3) rescind the rule ``immediately'' (no comment
period on the removal) and include a new rule (no NEPA
\98\ but with a comment period) that establishes the
requirements for the Forest Service to a) complete an
EIS for roadless entry, and b) consider Roadless
Management Areas in Forest Plan Revisions. \99\
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\98\ As discussed above, page 31, ``NEPA'' requires an agency to
prepare a detailed statement on the environmental impact of a major
Federal action significantly affecting the quality of the human
environment before such an action can be taken. 42 U.S.C.
Sec. Sec. 4321, et seq. Presumably, the statement ``No NEPA'' means
that no such statement would be prepared.
\99\ The document is undated. However, its contents include
projections for actions ``doable'' by May 1.
(3) Legal Strategy
Conveniently, there was another route available for the
administration's efforts to overturn the rule: The courts. From
the outset, department officials were conscious of the
relationship of their actions with the existing litigation
challenging the rule. The Governor of Idaho wrote to Secretary
Veneman advising her of the State's challenge to implementation
of the roadless rule and requesting an opportunity for his
negotiating team to brief the Secretary's staff. His letter
describes an order from the U.S. District Court in Idaho, in
which, although dismissing a challenge at an early stage of the
rule's analysis under NEPA, the court expressed skepticism
about the adequacy of public participation.\100\ A meeting on
roadless issues was scheduled between USDA officials and
Governor Kempthorne's representatives on February 27,
2001.\101\ This was a week after the plaintiffs in a parallel
case in the Idaho District Court filed a motion seeking a
preliminary injunction \102\ to prevent implementation of the
rule.\103\ The judge set an expedited schedule with a hearing
on March 30, 2001.\104\ An undated USDA options paper proposing
to effectively rescind the roadless rule specifically noted
that ``(a)ny rulemaking effort must be closely coordinated with
the ongoing litigation challenging the roadless rule. . . . On
March 30, 2001, the Federal District Court for the District of
Idaho (Judge Lodge) is expected to hold a preliminary
injunction hearing on whether to enjoin implementation of the
roadless rule prior to or upon the scheduled effective date
(May 12, 2001).'' \105\
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\100\ Letter from Dirk Kempthorne, Governor of Idaho to the
Honorable Ann Veneman, Secretary of Agriculture, Department of
Agriculture, Washington, D.C., January 25, 2001 with enclosures,
including State of Idaho v. U. S. Forest Service, No CV99-611-N-EJL (D.
Id. Feb. 17, 2000) (order dismissing complaint).
\101\ Schedule notice: ``Subject: Re: Roadless--Erika Eaton, Bruce
Smith [Governor Dirk Kempthorne's Office] w/Michael Bogert, Clive
Strong, Jan Polin [sic],'' February 27, 2001.
\102\ A preliminary injunction is a legal order essentially
prohibiting the defendant from doing what it wants to do, pending a
full review on the merits. Because it is a grant of relief to the
plaintiffs before the court has even heard the evidence, some courts,
including the Ninth Circuit, impose a high hurdle on those seeking a
preliminary injunction which upsets the status quo--they must show,
among other things, that they are likely to prevail on the merits and
that they will be irreparably harmed without injunctive relief. Fed. R.
Civ. P. 65; Thomas R. Lee, ``Preliminary Injunctions and the Status
Quo,'' 58 Wash & Lee L. Rev. 109, 116 (Winter 2001).
\103\ Kootenai Tribe of Idaho v. Veneman, CV01-10-N-EJL (D. Id.
February 20, 2001) (Motion for Preliminary Injunction).
\104\ Kootenai Tribe of Idaho v. Veneman, CV01-10-N-EJL (D. Id.
March 9, 2001) (Order).
\105\ Undated, unidentified document, ``Privileged & Confidential,
Rulemaking Options for Adjusting the Roadless Rule.''
---------------------------------------------------------------------------
After Judge Lodge scheduled a hearing, attorneys from the
Department of Justice (DOJ) and USDA were scheduled to meet on
March 12 with the Acting Under Secretary for Natural Resources
and Environment.\106\ Handwritten notes from that date
regarding short-term and long-term legal options identified the
further extension of the effective date as an option, noting as
a ``benefit--keeps case before a judge we know'' and identifies
as next steps to ``confer with White House'' and ``take options
to Secretary and White House decision makers.'' \107\
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\106\ Schedule notice, ``Subject: Re: Roadless--with Jan Polin
[sic], Mike Gippert, Vince DeWitt, [OGC], Lucy Clark, Andrea Berlow,
Jack Haugrud [Justice],'' March 12, 2001.
\107\ Notes dated 3/12, ``Roadless Policy.'' Attached are notes
which contain the phrases ``balance bad news with good news'' and ``pro
environment message going out at the same time'' under the heading
``White House.''
---------------------------------------------------------------------------
The next day, on March 13, officials from OMB (including
the General Counsel's Office and the Office of Information and
Regulatory Affairs), the Council on Environmental Quality and
the office of the White House Chief of Staff met with
representatives of DOJ and USDA to discuss roadless
issues.\108\ On March 15, David Tenny, Acting Under Secretary
for Natural Resources and Environment, forwarded to officials
at the White House and the DOJ draft talking points explaining
the anticipated request for a delay of the government's filing
until May 12. He explained that the ``purpose of the
government's motion is to ensure that this review process can
continue while also preserving the court's ability to hear the
plaintiff's case. Until the review of the roadless policy is
completed, the administration will not comment on the merits of
the policy.'' \109\
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\108\ E-mail string, from Acting Associate General Counsel, Natural
Resources to Attorney, Office of General Counsel, U.S. Department of
Agriculture, ``FR Notice,'' March 13, 2001; Sign in sheet, listing
names and agencies, March 13, 2001.
\109\ E-mail from Acting Under Secretary for Natural Resources and
Environment, U.S. Department of Agriculture, to Office of Policy
Development, Executive Office of the President and Office of the
Assistant Attorney General, Environment and Natural Resources Division,
U.S. Department of Justice, ``Talking Points on Idaho Roadless
Lawsuit,'' March 15, 2001.
---------------------------------------------------------------------------
By most appearances, the administration lacked a commitment
to defending the case. On March 16, the date on which
objections to the request for preliminary injunction were due,
the United States did not object but filed a Motion for
Enlargement of Time to allow for review of the rule.\110\ In
their response to the motion, plaintiffs argued, inter alia,
that in the Ninth Circuit, ``in a lawsuit to compel compliance
with NEPA, no one but the Federal Government can be a
defendant.'' (Citations omitted) \111\ Plaintiffs ``submit that
defense of an agency's NEPA compliance--the only matter at
issue in the instant Motion for Preliminary Injunction--is
within the sole province of the agency.'' \112\
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\110\ Kootenai Tribe of Idaho v. Veneman, CV01-10-N-EJL (D. Id.
March 16, 2001) (Federal Defendant's Motion for Enlargement of Time).
The request for an enlargement of time was denied. Kootenai Tribe of
Idaho v. Veneman, CV01-10-N-EJL (D. Id. March 20, 2001) (Order).
\111\ Kootenai Tribe of Idaho v. Veneman, CV01-10-N-EJL (D. Id.
March 19, 2001) (Plaintiff's Opposition to Federal Defendants' Motion
for Enlargement of Time; Motion to Strike Opposition Pleadings of
Defendant-Intervenors; Request for Entry of Preliminary Injunction at
3).
\112\ Id. at 4.
---------------------------------------------------------------------------
On March 21, the government filed its response to the
motion for preliminary injunction, and in fact--in what must be
quite unusual for a party in litigation--did not comment on the
merits on the case. Rather than making any effort to defend the
rule, it reported that the ``. . . Secretary of Agriculture is
prudently conducting a careful review'' of the rule, which the
USDA anticipated completing prior to May 12, 2001, the
postponed effective date of the rule.\113\
---------------------------------------------------------------------------
\113\ Kootenai Tribe of Idaho v. Veneman, CIV 01-010-N-EJL (D. Id.
March 21, 2001) (Federal Defendants' Opposition to Plaintiff's Motion
for Preliminary Injunction at 2).
---------------------------------------------------------------------------
This approach did not sit well with veteran members of the
department. Immediately after the papers were filed in court,
the career Chief of the Forest Service (a named defendant in
the lawsuit) sent a letter to Secretary Veneman expressing his
frustration at the administration's ``lackadaisical and half-
hearted'' defense of the rule in court and the failure to
consult with him or the staff that helped to draft the rule
``in either fashioning the strategy to be used in defending
against legal challenges or in developing the arguments
presented in any of the filings made thus far.'' \114\
---------------------------------------------------------------------------
\114\ Letter from Mike Dombeck, Chief, Forest Service to Secretary
Ann Veneman, United States Department of Agriculture, Washington, D.C.,
March 23, 2001.
---------------------------------------------------------------------------
At a consolidated hearing on the two cases, government
counsel simply made a statement reporting that the USDA planned
to review the rule. Thus it fell to the intervenors--
environmental groups--to fill the gap by defending the rule,
including the adequacy of the government's compliance with
NEPA.\115\ Plaintiffs had asserted that the Forest Service
failed to comply with NEPA in not considering a reasonable
range of alternatives to the proposal, in not adequately
analyzing its cumulative impacts, and in failing to provide a
legally sufficient notice and comment process. In an order
issued on April 5, Judge Lodge took note of the lack of a
government position on the merits of the plaintiffs' case, the
government's actions postponing the rule, and its commitment to
undertake a full review. Not surprisingly in light of the
government's non-defense, Judge Lodge concluded that it was
likely the plaintiffs would succeed on the merits of their
claims arising from NEPA. For the time being, the judge
deferred a decision of whether or not there was irreparable
injury justifying issuance of a preliminary injunction until
the government's status report concerning the rule would be
provided to the court on May 4, 2001.\116\
---------------------------------------------------------------------------
\115\ Kootenai Tribe of Idaho v. Veneman, CIV 01-10-N-EJL (D. Id.
March 21, 2001) (Response of Idaho Conservation League to Plaintiff's
Motion for Preliminary Injunction).
\116\ Kootenai Tribe of Idaho v. Veneman, 142 F. Supp.2d 1231 (D.
Id. 2001). The injunction hearing on this case was consolidated with
State of Idaho v. U.S. Forest Service, CV01-11-N-EJL (D. Id. May 10,
2001), 2001 U.S. District Lexis 21990.
---------------------------------------------------------------------------
The April 5 order was followed by further meetings
regarding ``roadless,'' within USDA, including meetings
scheduled with the Secretary of Agriculture and with the
OMB.\117\ Although many of the documents USDA produced for the
Committee are not tied to specific meetings, what is
demonstrable in this period is a continuing focus on plans to
eliminate the national decision to protect roadless areas. For
example, on April 19, the Acting Under Secretary faxed copies
of several versions of draft rules rescinding or amending the
rule to Dale Bosworth, the incoming Chief of the Forest
Service. One version included the explanation that it was
``premised on the conclusion that the published roadless rule
does not meet basic principles of sound environmental decision-
making.'' \118\ As already mentioned, none of the documents
provided to the Committee indicate how this conclusion was
reached.
---------------------------------------------------------------------------
\117\ Scheduling notices: ``Roadless Meeting at OMB,'' April 12,
2001; ``Briefing on Roadless Issues w/Dave Tenny, Kevin, Dale, Jim
Moseley,'' April 18, 2001; ``Roadless--with Chris Risbrudt,'' April 25,
2001; ``Roadless--with the Secretary, Jan Poling, Chris Risbrudt, Bill
Sexton, Ed Nesselroad,'' 4/27/01; ``Roadless Briefing--Tenny + 4,''
April 27, 2001; Unidentified, redacted calendar, April 18 and May 1,
2001; ``Roadless with the Secretary and Ed Nesselroad,'' 5/1/2001;
``Briefing on Roadless with the Secretary, Jan Poling, Dale Bosworth,
and Ed Nesselroad,'' 5/3/2001.
\118\ U.S. Department of Agriculture, Fax from: Dave Tenny, Office
of the Under Secretary for Natural Resources and Environment to: Dale
Bosworth, Subject: ``Roadless Highly Confidential,'' 4/19/01.
---------------------------------------------------------------------------
Despite their apparent belief that the rule was flawed and
their efforts to undo it, agency officials seemed hesitant to
publicly acknowledge their views and plans because of concerns
of how that might affect public perception of the
administration's environmental record. An April 16 note
addressed to ``Dave'' and commenting on a ``road map'' of time
lines for decision on the roadless rule observed that the
proposed schedule, ``leaves you virtually announcing the
Administration's decision on the roadless rule right before
Earth Day. Perfect timing for opposition interests to make full
use of the move in the sure to happen `blast the
administration' initiative around Earth Day.'' \119\ The note
identified options, recommending that the USDA be prepared to
act sooner so that the news value ``could be pretty well
drained out of the media by the time the rule process actually
comes into play'' and ``if there's a PI [preliminary
injunction] granted use that as cover. . . .'' \120\ So too, a
pre-March 30 document cautioned against virtually all of its
contemplated options, including the preferred option of
outright rescission of the rule, on the grounds that it might
feed the ``[p]erception of diminished concern for environmental
protection.'' \121\
---------------------------------------------------------------------------
\119\ Unsigned, undated note addressed to Dave.
\120\ Id.
\121\ Undated, unidentified document, ``Privileged & Confidential,
Rulemaking Options for Adjusting the Roadless Rule,'' which contains a
footnote reference, ``On March 30, 2001 . . . is expected to hold a
preliminary injunction hearing. . . .''
---------------------------------------------------------------------------
But, there appeared to be a solution. As one of the option
papers put it: ``[w]ait for the judge to make a final ruling
that the rule is illegal and comply with the court order.''
\122\ A handwritten notation on the back of a copy of this
undated document contained in the Acting Under Secretary's
files states: ``Action: Write brief to prevent unilateral
rescission--let judge take rule down.'' \123\ In other words,
it appears that USDA officials were all too happy to have the
court take the blame for a decision that the administration
itself supported, but was not willing to take the heat for
having made.
---------------------------------------------------------------------------
\122\ Undated, unidentified paper, with heading ``Roadless
Options:'' with handwritten notes on front and back, from Mr. David
Tenny's files. (The options document was located in other files as
well.)
\123\ Id., back side of document.
---------------------------------------------------------------------------
The subsequent court filings confirm USDA's apparent
strategy of using the court case to undermine the rule. On May
4, 2001, the government filed its Status Report with the court.
Again, in what must be quite unusual for any agency, or any
defendant for that matter, it told the court that the
plaintiffs may well be right:
The USDA advises that it will propose, in a June 2001
rulemaking, retaining the Rule's protections for
roadless values while acknowledging the need to include
public participation in the forest planning process.
States, Tribes, local communities and this court have
voiced significant concerns about the process through
which the Rule was promulgated. After a review of the
Rule and the administrative record, the USDA shares
many of these concerns.\124\
---------------------------------------------------------------------------
\124\ Kootenai Tribe of Idaho v. Veneman, CIV 01-010-N-EJL (D. Id.
May 4, 2001) (Federal Defendants' Status Report at 2) (hereinafter
``Status Report'').
The May 4 filing contained only the barest of descriptions of
---------------------------------------------------------------------------
the USDA's review:
The Department's review necessarily has addressed
both the substance of the Rule and the process leading
up to its promulgation. From a substantive perspective,
the review examined the geographic scope of the Rule
and the prohibitions established by it, as well as the
exceptions to those prohibitions. Procedurally, the
review focused on the legal requirements for rulemaking
processes generally, as well as the process for this
particular Rule and the level of public involvement in
that process.\125\
---------------------------------------------------------------------------
\125\ Status Report at 2. See discussion in Section II. A. (1) of
this report regarding the extent of public participation in the
rulemaking process.
Other than the statement sharing the concerns, the Status
Report did not describe the review's findings. As discussed
above, the internal agency documents provided to the Committee
did not reflect an examination of the issues described above,
although some documents contain conclusory statements regarding
these issues.
The Status Report included a declaration from the new Chief
of the Forest Service, Dale Bosworth, \126\ that the USDA and
the Forest Service would propose amendments to the regulation
by the end of June 2001. These proposed amendments ``will seek
to maintain the protections embodied in the current rule'' in
part ``by retaining the Roadless Rule's principles against
timber harvesting and road building.'' \127\ With regard to the
pending request for the preliminary injunction, the government
made a statement in virtual support of the plaintiffs:
``although the USDA shares plaintiffs' concerns about the
potential for irreparable harm in the long-term under the
current Rule, it would appear unlikely that such harm will
occur in the short-term given the lengthy planning horizons
needed for activities in inventoried roadless areas.'' \128\
---------------------------------------------------------------------------
\126\ Mike Dombeck resigned as Chief of the Forest Service
effective March 31, 2001. On April 12, 2001, the USDA announced the
appointment of Dale N. Bosworth to succeed him. USDA Forest Service,
``USDA Forest Service Chief Mike Dombeck to Retire,'' March 27, 2001;
United States Department of Agriculture, Office of Communications,
``Dale Bosworth Selected As USDA's New Forest Service Chief,'' April
12, 2001.
\127\ Status Report at 3.
\128\ Status Report at 4.
---------------------------------------------------------------------------
The day that the report was filed with the court, May 4,
2001, Secretary Veneman announced: The ``Department's decision
to uphold the Roadless Area Conservation Rule. Through this
action, we are reaffirming the Department of Agriculture's
commitment to the important challenge of protecting roadless
values.'' \129\ What's more, the Secretary announced that the
rule would go into effect on May 12 and that in June, USDA
would propose amendments to the rule to address issues relating
to ``informed decision making'': Working with local
communities, protecting from the effects of wildfire, and
insuring access to private property in roadless areas. There
appears to have been no rigorous process supporting the basis
for the Secretary's announcement that the rule would go into
effect. Although meetings and briefings on ``roadless'' were
scheduled with the Secretary during that week, the documents
produced to the Committee contain no decision document
presenting options for the Secretary's May 4 announcement.\130\
The briefing book dated May 4 contains a tally of support and
opposition to the Draft Environmental Impact Statement from
elected officials, and a summary list of ``concerns that have
been raised.'' \131\ Despite the Secretary's assertions, it is
clear from the documents that the USDA was in fact working to
undermine the very protections the Secretary claimed to
support.
---------------------------------------------------------------------------
\129\ Office of Communications, U.S. Department of Agriculture,
``Remarks by Secretary of Agriculture Ann M. Veneman, Roadless Area
Conservation Rule,'' May 4, 2001.
\130\ Scheduling notice: ``Roadless--with the Secretary, Jan
Poling, Chris Risbrudt, Bill Sexton, Ed Nesselroad,'' 4/27/01,
``Roadless with the Secretary and Ed Nesselroad,'' 5/1/2001, ``Briefing
on Roadless with the Secretary, Jan Poling, Dale Bosworth, and Ed
Nesselroad,'' 5/3/2001, and ``Briefing with the Secretary on roadless--
with Dale Bosworth, Ed Nesselroad,'' 5/4/2001.
\131\ ``Roadless Rule Briefing Book, U.S. Department of
Agriculture,'' Washington, D.C., May 4, 2001.
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Citing the government's concession that the rule was
flawed, on May 10, 2001, Judge Lodge issued a preliminary
injunction suspending the rule's implementation--an outcome
which appears to have been virtually assured by the
administration's handling of the defense of the rule.\132\ The
court found the government's ``vague commitment'' to propose
amendments to the rule indicative of a failure of the agency to
take the requisite ``hard look'' in preparing the Environmental
Impact Statement and noted that ``. . . the Federal Government
has conceded that without the proposed rulemaking amending the
Roadless Rule there is potential for long-term irreparable
harm.'' \133\ In other words, the government's general
acknowledgment of error convinced the court that the USDA
should be enjoined from implementing the rule.
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\132\ State of Idaho v. U.S. Forest Service, CV01-11-N-EJL (D. Id.
May 10, 2001) (order issuing preliminary injunction at 3). Judge Lodge
held a consolidated injunction hearing on March 30, 2001 in the
parallel cases, State of Idaho v. U.S. Forest Service and Kootenai
Tribe of Idaho v. Veneman.
\133\ Virtually identical orders were issued in the cases described
in the footnote above. The order enjoining the rule also enjoined the
portion of the planning rule that addresses roadless areas (new 36 CFR
Sec. 219.9(b)). State of Idaho v. U.S. Forest Service, CV01-11-N-EJL
(D. Id. May 10, 2001). The cases were consolidated for purposes of
appeal to the Ninth Circuit. Kootenai Tribe of Idaho v. Veneman, No.
01-35472 et al. (D. Id. May 21, 2001).
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Not surprisingly, after failing to defend the rule in the
first instance, the USDA recommended against appeal of the
District Court's decision.\134\ In the absence of the
government's participation, environmental groups--who had been
granted intervenor status in the case--appealed the decision to
the Ninth Circuit Court of Appeals. They argued that the
District Court should not have issued the preliminary
injunction because it lacked jurisdiction over the claims, in
part because NEPA's requirement to prepare a detailed
environmental impact statement was not applicable.
Alternatively, the intervenors defended the adequacy of the
Federal Government's environmental impact analysis supporting
the rule's initial promulgation.\135\
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\134\ Letter from James Michael Kelly, Associate General Counsel,
U.S. Department of Agriculture to John C. Cruden, Acting Assistant
Attorney General, Environment and Natural Resources Division, U.S.
Department of Justice, Washington, D.C., May 31, 2001.
\135\ Kootenai Tribe of Idaho v. Veneman, No. 01-35472, et al. (D.
Id. May 31, 2001).
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As of October 2002, the Idaho preliminary injunction was
still in effect, further proceedings stayed at the District
Court level, and the appeal in the Ninth Circuit still pending.
To date, its effect has been the same as a rescinding of the
rule, accomplished without the administration ever having to
publicly detail its evaluation of relevant data or its
conclusions regarding why the process adopting the rule was
flawed. By and large, the USDA has avoided the negative
publicity it feared from a proposal to rescind the rule and, to
date, has eluded the requirements of the APA to provide for the
public to comment on a new rule and a reasoned analysis for a
changed course of action. It has avoided the scrutiny--the
``hard look''--which is required by the Supreme Court when an
agency has changed course and rescinded a rule.\136\
---------------------------------------------------------------------------
\136\ Merrick B. Garland, ``Deregulation and Judicial Review,'' 98
Harv. L. Rev. 507, 526-568 (1985).
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(4) Forest Service Implementing Policies Less Protective than Rule
Despite the USDA's representation to the court, June 2001
came and the USDA did not propose a revised rule. Instead,
citing the preliminary injunction, the pendency of eight
lawsuits in seven States, and the expectation of protracted
litigation, the new Chief of the Forest Service issued a policy
memo reserving to himself all decisions governing roadless
areas.\137\ On July 10, 2001 USDA issued an Advanced Notice of
Proposed Rulemaking asking for the public's views on the gamut
of management issues involving roadless areas.\138\ This
request fell far short of the new rule USDA told the court it
would propose by June.
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\137\ United States Department of Agriculture, Delegation of
Authority/Interim Protection of Roadless Areas, June 7, 2001.
\138\ 66 Fed. Reg. 35918 (July 10, 2001).
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The June policy was subsequently incorporated into a series
of interim directives published in the Federal Register on
August 22, 2001.\139\ On December 20, 2001, the Forest Service
published additional interim directives, effective as of
December 14, 2001 that replaced in large part previous
directives and continued to reserve authority to the Chief to
approve or disapprove certain proposed timber harvests in
inventoried roadless areas.\140\ An analysis, prepared by the
American Law Division of the Congressional Research Service,
describes the key elements of the interim directives and the
circumstances under which timber harvests and road construction
could occur, without the Chief 's approval, as follows:
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\139\ 66 Fed. Reg. 44111 (August 22, 2001). On August 24, 2001 an
earlier Interim Directive affecting roadless area protection, which was
effective May 31, 2001, was also published in the Federal Register. 66
Fed. Reg. 44590 (August 24, 2001).
\140\ 66 Fed. Reg. 65796 (December 20, 2001).
The December directive states that the Chief 's
authority with respect to timber harvests ``does not
apply'' if a Record of Decision for a forest plan
revision was issued as of July 27, 2001--as was true of
the Tongass National Forest--and will otherwise
terminate when a plan revision or amendment that has
considered the protection and management of inventoried
roadless areas is completed.\141\
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\141\ The Forest Service website reported that 12 forests had
revised forest plans as of July 27, 2001. http://www.fs.fed.us/forum/
nepa/nfmalrmp.html
The Chief 's authority with respect to road
construction is to remain in effect until a forest-
scale roads analysis is completed and incorporated into
each forest plan, at which point it terminates. The
Regional Forester is to make many decisions on road
construction projects under new Sec. 1925.04b.\142\
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\142\ RL30647 at 18.
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. . . .
. . . until a forest-scale roads analysis . . . is
completed and incorporated into a forest plan,
inventoried roadless areas shall, as a general rule, be
managed to preserve their roadless characteristics.
However, where a line officer determines that an
exception may be warranted, the decision to approve a
road management activity or timber harvest in these
areas is reserved to the Chief or the Regional Forester
as provided in FSM 1925.04a and 1925.04b.\143\
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\143\ 66 Fed. Reg. 65801 (December 20, 2001).
The CRS analysis further states that ``while environmental
analyses and protection are permissible, and may in fact ensue
under the new management directives, those outcomes are neither
compelled nor as likely as they would have been under the
previous management prescriptions and policies.'' \144\
---------------------------------------------------------------------------
\144\ RL30647 at 21.
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Public comment was requested on the interim policy, after
it was finalized and published, and the public was advised its
input would be considered in issuing any final policy.\145\ In
other words, under cover of the Idaho preliminary injunction,
\146\ by means of a directive finalized even before public
comment was requested, the Forest Service established a policy
essentially having the weight of a rule.\147\ This non-rule
undercuts the national protections which the roadless area
conservation rule sought to provide by allowing road
construction; allowing timber harvests and road construction
authorized by plans which were issued as of July 27, 2001; and
ultimately returning such decisions to the forest level when
the management of roadless areas is considered in the planning
process. Thus, under cover of the preliminary injunction, the
Forest Service has essentially changed--at least for the short
term--a rule which was developed with extensive public comment
and, which, if formally rescinded, would require public notice
and comment.\148\
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\145\ 66 Fed. Reg. 65800 (December 20, 2001).
\146\ The U.S. Forest Service is affording nationwide effect to the
injunction which is somewhat ambiguous on its face. Thinning Actions
for the Bark Beetle Analysis, U.S. Forest Service, Deputy Regional
Forester, Resources, Decision File Code: 1570 (2002-02-06-0029) A215A
(July 12, 2002) at 4. This nationwide deference contrasts with the
position taken by the administration in another case in which the
court's ruling was protective of the environment. The Army Corps of
Engineers has worked to limit the effect of an injunction barring them
from issuing mining permits that allow companies to use waste as ``fill
material,'' arguing that the injunction should only apply to the
geographic area under the jurisdiction of the court, not to the entire
nation. See Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 206
F. Supp.2d 782 (S.D.W.V. June 17, 2002). (United States' Reply Brief in
Support of its Motion for a Stay Pending Appeal, for Clarification and
for Expedited Consideration at 11.)
\147\ In the context of rulemaking, permitting the submission of
views after the effective date is no substitute for the right of
interested persons to make their views known to the agency in time to
influence the rulemaking process in a meaningful way. City of New York
v. Diamond, 379 F. Supp. 503, 517 (S.D.N.Y. 1974); Mobil Oil Corp. v.
Department of Energy, 610 F.2d 796, 805, n. 11 (Em. App. 1979).
\148\ Interim directives expire 18 months from issuance and may be
reissued once for a total duration of 36 months. 66 Fed. Reg. 65800
(December 20, 2001).
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In the Summer of 2002, the Forest Service published an
analysis of public comments received in response to its July
2001 Advanced Notice of Proposed Rulemaking. Chief Bosworth
stated that the Forest Service, ``will use the public comments
to help inform our decision-making on where to go next. . . .''
\149\ One appropriate next step is for the Forest Service to
assure meaningful public involvement by communicating more
clearly the actions that it is taking. For example, while the
CRS analysis provided an explanation of the policy changes, it
also pointed out that the full effect of the December directive
is difficult to ascertain because of the confusing manner in
which it is written.\150\ The CRS analysis observed that it was
difficult to say with any certainty exactly what management
requirements and direction currently apply or who the decision-
makers are to be in any particular instance.
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\149\ USDA Forest Service News Release, ``Forest Service Completes
Review of Public Comments on Roadless,'' June 26, 2002.
\150\ The CRS report provided examples of confusing provisions and
noted:
L. . . the Notice does not clearly indicate which provisions are
being replaced or the precise extent of revisions. The published
explanatory material states that affected material is set out and
unaffected material is not. Yet, some of the earlier provisions are
neither shown nor discussed and therefore, may still be in effect.
However, the final text of new FSM Sec. 1925 does not show these
undiscussed earlier provisions--as though they are now superseded.
Therefore it is not clear which of the previous materials is still in
effect. RL30647 at 16-17.
In sum, the actions of the USDA in adopting confusing
manual policies without prior public comment, which effectively
changed the prohibitions contained in a rule developed with
extensive public comment, and, which--as discussed--was
suspended because of the failure of the government to defend
the rule, reflects a continuing and troubling lack of respect
for public participation in the administrative process. These
actions are not just hypothetical concerns about the integrity
of the administrative process, they have consequences. For
example, the Forest Service is currently preparing for timber
sales in an area of the Tongass National Forest, an area in
which such sales were prohibited by the rule.\151\
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\151\ The Forest Service has proposed to harvest an estimated 8
million board feet on Wrangell Island, Tongas National Forest, Alaska.
Approximately 65 percent of the proposed sale units are located within
inventoried roadless areas. 67 Fed. Reg. 10661 (March 8, 2002).
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B. Hardrock Mining (``3809'') Regulation
USDA's summary actions discounting the results of a lengthy
and public rulemaking process with no apparent substantive
agency analysis of the promulgated rule were replicated in yet
another early Bush Administration decision, this time involving
the dismantling of an important Interior Department rule. On
November 21, 2000, the DOI published regulations--effective
January 19, 2001--which were intended to remedy long-standing
problems associated with hard rock mining for minerals such as
silver, copper, or gold--so-called ``locatable minerals''--on
land managed by the Bureau of Land Management (BLM).\152\
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\152\ Authority for issuance of the regulation was based in part on
the Federal Land Policy and Management Act (FLPMA), which provides that
the Secretary of the Interior is to manage the Federal public lands,
including those lands containing mining claims located under the Mining
Law of 1872. 43 U.S.C. Sec. 1732 (b) provides that the Secretary is to
manage the development of the public land: ``In managing the public
lands, the Secretary shall, by regulation or otherwise, take any action
necessary to prevent unnecessary or undue degradation of the public
lands.'' In addition, 30 U.S.C. Sec. 22, the general statute
authorizing exploration and purchases of mineral deposits on public
lands, opens the public lands ``under regulations prescribed by law.''
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Hardrock mining occurs on public lands in Alaska, Arizona,
California, Colorado, Idaho, Montana, New Mexico, Oregon, Utah,
Washington, and Wyoming.\153\ The Mining Law of 1872 allows
miners to secure exclusive rights to mine public lands through
the location of valid mining claims.\154\ It allows free access
to the public lands for prospecting, and a valid claim entitles
the holder to purchase surface and mineral rights at the rate
of $2.50 per acre for placer claims and $5 per acre for lode
claims.\155\ Mining affects to varying degrees the soil, air,
groundwater and surface water, aquatic and terrestrial
vegetation, and wildlife.\156\ As the National Research Council
(NRC) explained in a report on hardrock mining: ``Actions based
on environmental regulations may avoid, limit, control or
offset many of these potential impacts, but mining will, to
some degree, always alter landscapes and environmental
resources.'' \157\ Harmful impacts on water quality, vegetation
and aquatic life often extend beyond the immediate area of the
mine site.\158\ Repeated failures by mining companies to
reclaim \159\ sites adversely affected by their mining
activities have left landscapes throughout the West marred by
large open pits and land erosion, and water resources polluted
by toxic drainage.
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\153\ An estimated 43 percent of gold production; 36 percent of
silver; and 1 percent of copper production in the United States comes
from Federal lands in these States. Department of the Interior, Bureau
of Land Management, Environmental Impact Statement, Surface Management
Regulations for Locatable Mineral Operations, October 2000, Vol. 1, at
268 (hereinafter ``Surface Management EIS'').
\154\ This is accomplished by individuals and corporations
obtaining free access to the lands, and upon making a discovery of a
``valuable mineral deposit,'' staking a claim on the deposit. Claimants
must pay an annual maintenance fee of $100 to hold the claim, and the
minerals can be developed without obtaining a patent to the surface
rights.
\155\ ``A placer deposit is an alluvial deposit of valuable
minerals usually in sand or gravel; a lode or vein deposit is of a
valuable mineral consisting of quartz or other rock in place with
definite boundaries.'' Marc Humphries, ``Mining on Federal Lands,''
Congressional Research Service Issue Brief, IB89130, January 3, 2002,
at CRS-2 (hereinafter ``IB89130'').
\156\ Committee on Hardrock Mining on Federal Lands, Committee on
Earth Resources, Board on Earth Sciences and Resources, Commission on
Geosciences, Environment, and Resources, National Research Council,
National Academy of Sciences, Hardrock Mining on Federal Lands, 1999,
Executive Summary at 3 (hereinafter ``NRC Hardrock Mining Report'').
\157\ Id.
\158\ Id. at 1.
\159\ What constitutes reclamation depends on the individual site.
The hardrock mining rule identified various components of reclamation,
including control of or removing acid forming and toxic substances;
regrading the land to conform with adjacent land; revegetation;
rehabilitation of fisheries or wildlife habitat; controlling drainage
and minimizing erosion; removing structures; plugging drill holes; and
providing for post-mining monitoring or treatment. 64 Fed. Reg. 6452
(February 9, 1999).
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As the EPA has reported: ``Mining in the western United
States has contaminated stream reaches in the headwaters of
more than 40 percent of the watersheds in the West.'' \160\
However, the full extent of environmental problems at modern
mine sites is not known, nor are the costs of reclamation and
remediation.\161\ The GAO issued a series of reports
highlighting abuses from hardrock mining and the need for
better bonding of mining operations and reclamation.\162\
Fourteen years ago, GAO made statistical projections estimating
the amount of unreclaimed acreage on Federal land and its cost
of reclamation at about $284 million.\163\
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\160\ Office of Water, United States Environmental Protection
Agency, Liquid Assets 2000: America's Water Resources at a Turning
Point, May 2000, at 10.
\161\ According to the National Research Council, the full extent
of problems will not be known until better information is collected and
analyzed. The EPA reports that remediation costs are highly variable
because of the site-specific nature of environmental problems
encountered at mine sites. U.S. Environmental Protection Agency, Costs
of Remediation at Mine Sites, April 1998.
\162\ U.S. General Accounting Office, Public Lands: Interior Should
Ensure Against Abuses From Hardrock Mining, GAO/RCED 86-48, March 1986;
Federal Land Management: Financial Guarantees Encourage Reclamation of
National Forest System Lands, GAO/RCED 87-157, August 1987; Federal
Land Management: Limited Action Taken to Reclaim Hardrock Mine Sites,
GAO/RCED 88-21, October 1987.
\163\ Federal Land Management: An Assessment of Hardrock Mining
Damage, GAO/RCED 88-123BR, April 1988, at 1.
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Beginning in the 1980's, the increased use of a technology
called ``cyanide leaching'' to extract gold from relatively
low-grade ores raised concerns about the adequacy of BLM rules
to protect land and water resources from such practices.\164\
The most common cyanide leaching process, ``heap leaching,''
involves digging large pits to extract huge amounts of ore,
piling the extracted ore into heaps, then spraying a cyanide
solution over the heaps so that cyanide trickles through the
ore and strips out the mineral. Cyanide is well known as a very
poisonous--and sometimes lethal--chemical. High level exposure
harms the brain and heart; low levels may result in breathing
difficulties, vomiting, blood changes, and enlargement of the
thyroid gland.\165\ Acute poisoning may occur from mining-
related accidents, but the ``more common environmental problems
are likely to result from the chronic contamination of surface
and ground waters by lower concentrations of cyanides and
related breakdown compounds. . . . Many of the breakdown
compounds, while generally less toxic than the original
cyanide, are known to be toxic to aquatic organisms, and may
persist in the environment for significant periods of time.''
\166\
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\164\ 64 Fed. Reg. 6423 (February 9, 1999).
\165\ U.S. Department of Health and Human Services, Agency for
Toxic Substances and Disease Registry, ``Cyanide,'' September 1997.
\166\ Moran, ``Cyanide Uncertainty: Cyanide in Mining: Some
Observations on the Chemistry, Toxicity, and Analysis of Mining Related
Waters,'' Invited Paper, Presented at the Central Asia Ecology--99
Meeting, Lake Issyk Kul, Kyrgyzstan, June 1999.
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The 1982 poisoning of the drainage that supplied fresh
drinking water for the town of Zortman, Montana with 52,000
gallons of cyanide solution \167\--poisoning which resulted in
the construction by the mining company (which since has filed
for bankruptcy protection) \168\ of a community well to provide
alternative drinking water--and the 1992 contamination of 17
miles of the Alamosa River in Colorado brought public attention
to the damage which can result from these practices.\169\ The
Alamosa spill killed all aquatic life in the contaminated
stretch and 10 years later, downstream users of water remain
concerned about the impact of continuing acid mine drainage
into the Alamosa River on livestock, agricultural crops, and
wildlife.\170\ To BLM, instances such as this demonstrated that
``mining operations sometimes carry a risk of serious
environmental harm that is very expensive, or even impossible
to repair.'' \171\ BLM, which became increasingly responsible
for reclamation of sites due to the bankruptcy of operators,
was also concerned with finding ways to ensure reclamation by
the operators.\172\
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\167\ Mineral Policy Center, MPC Fact Sheet: Cyanide, August 2000.
\168\ Robert McClure, ``Pegasus Gold--from boom to bankruptcy:
Miner makes a fortune on public land, sticks taxpayer with cleanup,''
Seattle Post-Intelligencer Reporter, June 13, 2001.
\169\ Mineral Policy Center, MPC Fact Sheet: Cyanide, August 2000.
\170\ Tripp Baltz, ``Justice Department, Colorado Settle Case With
Former Owner of Mine Site,'' Daily Environment Report, December 28,
2000, at A-1; U.S. Geological Survey, The Summitville Mine and Its
Downstream Effects, An On-Line Update of Open File Report 95-23,
Updated 11 July 1995. http://geology.cr.usgs.gov/pub/open-file-reports/
ofr-95-0023/summit.htm
\171\ 65 Fed. Reg. 70083 (November 21, 2000).
\172\ 64 Fed. Reg. 6442 (February 9, 1999); 65 Fed. Reg. 70007
(November 21, 2000).
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The rule that became effective on January 19, 2001, had
three principal features: (1) regulations requiring mining
companies to reclaim the land and clean-up toxic waste; (2)
updated environmental performance standards which would, among
other things, reduce groundwater pollution from mining
activity; and (3) a provision enabling the BLM to deny miners'
plans of operation that could cause ``substantial irreparable
harm'' to the area. This last provision--the so-called
``veto''--was intended to give BLM the ability to regulate
hardrock mining on public lands where it might prove extremely
harmful to surrounding areas or inhabitants.
(1) The Rule's Development
The hardrock mining rule has a pedigree dating back over 2
decades. In 1980, the BLM adopted ``surface management''
regulations--also called ``3809 regulations'' after the section
in the Code of Federal Regulations in which they are codified--
to protect public lands from unnecessary or undue degradation
and to ensure that areas disturbed during the search for and
extraction of mineral resources would be reclaimed. During the
first Bush Administration, a consensus began developing that
these regulations were inadequate. Thus, in 1989, BLM set up a
task force, which recommended changes in policies.\173\ In July
1991, BLM published a proposed rule to require submission of
financial guarantees (bonds) for reclamation for all hardrock
mining operations greater than casual use, \174\ and in October
1991, published a Notice of Intent to Propose Rulemaking to
modify the 3809 regulations, requesting public comment on seven
questions. These included whether the definition of
``unnecessary or undue degradation'' in the regulations should
be revised and whether ``the regulations should contain
additional environmental and reclamation requirements.'' \175\
BLM conducted four public workshops in Western States and
received written comments.
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\173\ 64 Fed. Reg. 6423 (February 9, 1999).
\174\ The 1980 regulations provided that if an activity would
disturb more than 5 acres, or take place in certain designated areas,
the BLM could, at its discretion, require a bond (a firm assurance or
guarantee that the miner would pay for the cost of reclamation). 43
C.F.R. Sec. 3809.1-4 and Sec. 3809.1-9 (1980). The effect of this
provision was that most exploration and some extraction activities were
not bonded. 56 Fed. Reg. 31602 (July 11, 1991).
\175\ 56 Fed. Reg. 54815 (October 23, 1991).
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In April 1992, a task force consisting of BLM employees
presented its recommendations to the Director of the BLM. BLM
then decided to put the initiative on hold, in deference to
legislative proposals for mining law reform then under
consideration by the Congress. After two successive Congresses
without any successful legislation on the issue, Interior
Secretary Bruce Babbitt announced on January 6, 1997 that BLM
would pick up the thread and again begin the rulemaking
process.\176\ Shortly thereafter, in February, BLM issued a
final bonding rule requiring submission of financial guarantees
for reclamation of all hardrock mining operations greater than
casual use.\177\
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\176\ 64 Fed. Reg. 6424 (February 9, 1999).
\177\ 62 Fed. Reg. 9093 (February 28, 1997).
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On April 4, 1997, BLM issued a notice informing the public
of the agency's intent to prepare an Environmental Impact
Statement for further revision of the regulations, and
requesting comments on what the scope of the regulations and
the environmental analysis should be. It specifically requested
comments on current operation and reclamation requirements and
the definition of ``unnecessary or undue'' degradation.\178\
Throughout 1997 and 1998, in efforts to refine the regulations,
BLM consulted with representatives of State agencies, sometimes
under the auspices of the Western Governors Association.\179\
BLM held public hearings in 11 Western cities and Washington
D.C., which were attended by over 1,000 people in total.\180\
The Bureau also received more than 1,800 comment letters from
individuals and representatives of State and local governments,
the mining industry, and citizens' groups.\181\ In addition, in
February and August 1998 it posted two drafts of proposed
regulatory provisions on the Internet for public comment and
received comments on the drafts from a variety of interested
parties, including State officials. It also held a series of
meetings to receive comments from industry representatives,
citizens, and environmental groups, and made revisions in
response to these informal comments.\182\
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\178\ 62 Fed. Reg. 16177 (April 4, 1997).
\179\ 64 Fed. Reg. 6424 (February 9, 1999).
\180\ Id.
\181\ Id.
\182\ 64 Fed. Reg. 6425 (February 9, 1999).
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The process stalled when the House of Representatives
included a rider in Interior's Fiscal Year 1998 appropriations
act to prevent DOI from publishing proposed or final
regulations prior to November 15, 1998.\183\ This prohibition
was subsequently extended through September 1999.\184\ In
October 1998, Congress directed BLM to pay for a study by the
National Research Council (NRC) Board on Earth Sciences and
Resources of the National Academy of Sciences to examine the
control of the environmental effects of hardrock mining.\185\
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\183\ Pub. L. 105-83, Sec. 339 (b), 111 Stat. 1543, 1603.
\184\ Pub. L. 105-277, Division A, Title I--Department of the
Interior, Sec. 120 (d), 112 Stat. 2681-258.
\185\ Pub. L. 105-277, Division A, Title I--Department of the
Interior, Sec. 120 (a), 112 Stat. 2681-257.
---------------------------------------------------------------------------
When the riders expired, BLM published a Notice of Proposed
Rulemaking. The February 9, 1999 notice proposed rewriting the
BLM's 3809 regulations in ``plain English'' and ``upgrading''
the regulations in several respects, including requiring
financial guarantees for all operations greater than casual
use, insuring the availability of resources for the completion
of reclamation; implementing provisions of the Federal Land
Policy and Management Act relating to administrative
enforcement; requiring a plan of operations for those
operations more likely to pollute the land and those located in
sensitive areas and requiring examination of the validity of
claims before allowing plans of operations to be approved in
withdrawn areas; \186\ establishing performance standards; and
defining ``unnecessary or undue degradation.'' \187\ The notice
gave the public 120 days to submit comments on the proposal.
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\186\ DOI has authority to withhold an area of Federal land from
settlement, sale, location, or entry under the general land laws to
limit activities under those laws in order to maintain other public
values in the area or to transfer jurisdiction over an area of Federal
land from one department or bureau to another. 43 U.S.C. Sec. 1702 (j).
\187\ 64 Fed. Reg. 6422-23 (February 9, 1999).
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On February 17, 1999, BLM sought comment on a Draft
Environmental Impact Statement analyzing the environmental
consequences of the existing 3809 regulations, the proposed
changes, and two additional alternatives.\188\ Immediately
thereafter, another Congressional rider prohibited issuing a
final rule until after a 120-day public comment period
following completion of the NRC report commissioned in 1998.
DOI's appropriations acts for FY 2000 and FY 2001 provided that
the Secretary could issue regulations ``which are not
inconsistent with the recommendations contained in the [NRC
Report] so long as these regulations are also not inconsistent
with existing statutory authorities.'' \189\
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\188\ The Final Environmental Impact Statement included an
additional alternative consisting of recommendations made by the
National Research Council. Surface Management EIS.
\189\ Pub. L. 106-113, Division B, Appendix C, Title III, Sec. 357;
Pub. L. 106-291, Title I, Sec. 156.
---------------------------------------------------------------------------
On September 29, 1999, the National Research Council issued
its report.\190\ The report assessed the adequacy of the
existing regulatory framework for hardrock mining and addressed
a broad range of mining issues, but it did not analyze the
proposed rule. The NRC concluded that the current regulations
needed improvement, although the overall structure of Federal
and State regulation was well coordinated. The NRC recommended
filling regulatory gaps by requiring financial assurances for
reclamation of disturbances to the environment caused by all
mining activities and requiring plans of operations for mining
and milling operations, regardless of size (with exceptions for
``casual use''). The NRC said that the BLM and Forest Service
should improve the criteria for modifications to plans of
operation; plan for long-term post-closure management of mine
sites; and provide that land managers could issue
administrative penalties for violations of regulatory
requirements.\191\ Upon receipt of the recommendations from
NRC, BLM opened another 120-day comment period on the proposed
rule, as required by the Emergency Supplemental Appropriations
Act, and added a request for comment on the draft EIS.\192\
During the two 120-day comment periods in 1999, BLM received
over 2,500 comments.\193\
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\190\ 65 Fed. Reg. 69998-99 (November 21, 2000).
\191\ Other recommendations included providing better information
regarding mining on the Federal lands; maintaining a management system
that effectively tracks compliance with operating requirements; making
regulatory changes to address temporarily idle mines and abandoned
operations; the identification of public land areas with cultural and
environmental sensitivities; more effective and timely participation in
the planning process under NEPA; improved staffing; and better guidance
to staff responsible for regulating mining operations. The NRC also
recommended modifications to existing laws and regulations to promote
cleanup of abandoned mine sites without causing operators to incur
additional environmental liabilities. NRC Hardrock Mining Report,
Executive Summary, at 6-9.
\192\ 64 Fed. Reg. 57613 (October 26, 1999).
\193\ 65 Fed. Reg. 69998 (November 21, 2000).
---------------------------------------------------------------------------
BLM published the final rule on November 21, 2000. The rule
responded to the recommendations described above, contained
changes to the proposed rule to insure consistency with
specific recommendations made by the NRC, and included
additional regulatory changes considered necessary to prevent
unnecessary or undue degradation of the public lands, most
notably, the ``veto'' provision.\194\
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\194\ DOI's Solicitor had interpreted the phrase ``not inconsistent
with'' the report to mean that so long as the final rule did not
contradict the specific recommendations of the NRC Report, the rule
could address subject areas BLM determined were warranted to improve
the regulations and meet the requirements of the FLPMA. 65 Fed. Reg.
70003 (November 21, 2000).
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Following issuance of the revised 3809 rules, mining
companies and environmental groups filed three lawsuits
challenging the rules in the U.S. District Court for the
District of Columbia.\195\ The State of Nevada also sued in
U.S. District Court for Nevada.\196\ The industry plaintiffs
and the State of Nevada asserted that BLM violated numerous
statutes in issuing the regulations. The environmental
plaintiffs asserted that the rules were not sufficiently
stringent and improperly allowed mining operations on lands
without valid mining claims. On January 19, 2001, the judge in
the lawsuit brought by the National Mining Association (NMA)
and defended by the Justice Department in the waning days of
the Clinton Administration denied NMA's motion for a
preliminary injunction to stay the effective date of the final
rules, holding that the plaintiff did not successfully meet its
burden of showing that the revised 3809 rules becoming
effective would cause irreparable harm and that it, ``is not
clear that NMA will prevail on any of its causes of action.''
\197\
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\195\ National Mining Association v. Babbitt, No. 00-CV-2998
(D.D.C. filed December 15, 2000); Newmont Mining Corporation v.
Babbitt, No. 01-CV-23 (D.D.C. filed January 5, 2001); Mineral Policy
Center v. Babbitt, No. 01-CV-73 (D.D.C. filed January 16, 2001).
\196\ State of Nevada v. Department of the Interior, No. CV-N01-
0040-ECR-VPC (D. Nev. filed January 19, 2001).
\197\ National Mining Association v. Babbitt, No. 00-CV-2998
(D.D.C. January 25, 2001) (memorandum and order at 8).
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(2) Department Considers Suspension Options
In contrast to the rules affected by the Card memo, the
mining rule was already in effect when the Bush Administration
entered office. Nonetheless, the rule did not escape the new
administration's sights as a target for regulatory revision.
Indeed, the mining industry and its supporters apparently
believed they had a virtual commitment by the incoming
administration to get rid of the mining rules. A BLM Field
Manager reported to Washington, D.C. officials regarding her
conversation with an industry representative: ``They asked me
if I knew that Bush had signed a moratorium on Jan. 20
pertaining to the 3809 regs. The information being told to
company people is that if the document signed on the 20th did
not stay the regs, that the Administration would find a way to
do that.'' \198\ On February 2, Governor Guinn of Nevada--a
State which accounts for approximately 45 percent of the total
mining claims on public land \199\--wrote to Secretary Norton:
``When we last spoke concerning the implementation of the 3809
mining regulations, we were hopeful that they would be subject
to the moratorium President Bush initiated on the day of his
inauguration.'' \200\
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\198\ String e-mail, Deputy Assistant Director, Minerals, Realty
and Resource Protection, Bureau of Land Management, Washington Office
to BLM Field Manager, Elko, Nevada, ``Moratorium on 3809???,'' January
31, 2001.
DOI provided the following information in response to a question
from Senator Lieberman regarding meetings about the rule with outside
parties:
LSecretary Norton met with various western Governors, including
Governor Guinn of Nevada, at which the Governors' concerns with the
3809 rules may have been discussed. We have no records describing such
meetings. The Governors of Nevada and Alaska, among others, also sent
letters to the Secretary . . . expressing their concerns with the
rules.
Letter from Shayla Freeman Simmons, Acting Director, Congressional
and Legislative Affairs to the Honorable Joseph I. Lieberman, Ranking
Minority Member, Committee on Governmental Affairs, U.S. Senate, April
6, 2001.
\199\ IB89130 at CRS-2.
\200\ Letter from Kenny C. Guinn, Governor, State of Nevada to the
Honorable Gale Norton, Secretary of the Interior, U.S. Department of
the Interior, February 2, 2001 (hereinafter ``Governor Guinn letter'').
---------------------------------------------------------------------------
On February 7, a DOI attorney prepared an internal memo
regarding Governor Guinn's February 2 request to postpone the
rules under a provision of the APA which permits agencies
unilaterally to suspend rules pending judicial review ``where
justice so requires.'' \201\ Governor Guinn's letter had argued
that extensive data provided by the States during the
rulemaking proceeding showed the revisions were unnecessary and
that postponement of the effective date pending completion of
judicial review would serve the interests of justice by keeping
in place the pre-existing 3809 rules that the ``National
Academy of Sciences believe are fully adequate to protect
public lands and the environment.'' \202\ The action, he wrote,
``would avoid the significant losses of revenue and jobs that
BLM predicts will result from the new rules, until the courts
decide whether or not the rules are valid.'' \203\
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\201\ 5 U.S.C. Sec. 705. Memorandum from Attorney-Advisor to
Assistant Solicitor, General Legal Services, General Law Division,
Office of the Solicitor, Department of the Interior, February 7, 2001.
\202\ Governor Guinn letter.
\203\ Id.
---------------------------------------------------------------------------
A paper submitted to the Secretary's Office on February 8
listed options focused not on whether to suspend the rule, but
on how--whether through a delay, an administrative rule, or, as
in the case of the USDA, simply not defending the case.\204\
The paper offered no discussion of why the rule was flawed, nor
indicated the evidentiary basis for upending the results of a
multi-year regulatory process.\205\ The administration seemed
bent on pursuing whatever procedural means would best meet its
predetermined end of suspending the rule. The options outlined
in the paper were the following:
---------------------------------------------------------------------------
\204\ E-mail from Attorney-Advisor, Solicitor's Office,
Headquarters, to Counselor to the Secretary, U.S. Department of the
Interior, ``Revised draft attached,'' February 8, 2001.
\205\ The DOI produced and the Majority staff reviewed
approximately 1,500 pages, consisting primarily of drafts of Federal
Register notices and press releases, question and answer sheets and
letters and comments for the public. The Majority staff reviewed an
additional approximately 200 pages at DOI's offices, after DOI asserted
that those documents contained ``privileged'' material. The Committee's
request called for all such documents related to the review of the
rule, and although they contained materials relevant to such a review,
including statistics and copies of legal cases, they did not include an
analysis of the existing rule, therefore, we must conclude that no such
analysis existed within the Department. Letter from Joseph I.
Lieberman, Chairman, Committee on Governmental Affairs, United States
Senate to The Honorable Gale A. Norton, Secretary, Department of the
Interior, Washington, D.C., June 6, 2001.
(1) a unilateral postponement of the rule pending
judicial review under section 705 of the Administrative
---------------------------------------------------------------------------
Procedure Act;
(2) entering into a stipulation in the litigation
with the plaintiffs to delay implementation of the rule
and submit it for court approval;
(3) DOI moving in the litigation for a stay of the
rules while the case was pending;
(4) electing not to further defend the industry and
Nevada lawsuits, DOI moving either unilaterally or as
part of a settlement for voluntary remand of the mining
rules to address the substantial legal deficiencies
raised by those plaintiffs and for the court to
reinstate the old regulations;
(5) DOI publishing a notice of proposed rulemaking
proposing suspension of the revised rules and
reinstatement of the prior rules with a 30-day comment
period; and
(6) DOI promulgating an interim final rule suspending
the revised rules and reinstating the prior rules.\206\
---------------------------------------------------------------------------
\206\ Option paper entitled ``Postponing 3809 Implementation,''
drafted by DOI attorney Joel Yudson and given to DOI policymakers.
The Department's papers reflect that the administration
again hewed to its familiar pattern: Investing energy in
exploring how to dismantle this important environmental
protection--not conducting a serious or substantive analysis of
the value of the regulations themselves.
On February 9, a meeting was scheduled between the
Counselor to the Secretary and attorneys from the DOI's
Solicitor's Office.\207\ Two days later, on Sunday, February
11, one of the scheduled meeting participants, an attorney in
the Solicitor's Office, drafted two versions of a notice for
the Federal Register. \208\
---------------------------------------------------------------------------
\207\ E-mail Deputy Associate Solicitor, Solicitor's Office,
Headquarters, to Staff Assistant, Solicitor's Office, Headquarters,
Department of the Interior, ``Klee meeting moved to 4:15 today,''
February 9, 2001.
\208\ E-mail, Attorney-Advisor, Solicitor's Office, Headquarters,
to Deputy Associate Solicitor, Solicitor's Office, Headquarters,
Department of the Interior, ``Draft Federal Register notices,''
February 11, 2001.
---------------------------------------------------------------------------
On Monday, February 12, an Executive Assistant in the White
House Office of Strategic Initiatives, \209\ sent an e-mail to
the Solicitor's Office asking for a copy of the ``BLM memo,''
which she thought was ``supposed to be finished.'' \210\ The
next day, the Counselor to the Secretary sent the options paper
to the White House, with an explanation saying that she had not
yet had a chance to talk to the Secretary about the
options.\211\
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\209\ The Office of Strategic Initiatives is responsible for
coordinating the planning and development of a long-range strategy for
achieving Presidential priorities.
\210\ E-mail, White House Office of Strategic Initiatives to
Solicitor's Office, Headquarters, Department of the Interior, ``Re: BLM
paper,'' February 12, 2001.
\211\ E-mail from Counselor, Office of the Secretary to Acting
Associate Solicitor, Solicitor's Office, Headquarters, forwarded to
Attorney-Advisor, Solicitor's Office, Department of the Interior,
February 13, 2001.
---------------------------------------------------------------------------
On February 27, Secretary Norton met with Governor Guinn of
Nevada. On March 2, Governor Guinn sent the Secretary another
letter urging suspension of the mining rules and raising
particular concerns about the veto and performance standard
provisions.\212\
---------------------------------------------------------------------------
\212\ Letter from Kenny C. Guinn, Governor of Nevada to Gale
Norton, Secretary of Interior, Washington, D.C., March 2, 2001.
---------------------------------------------------------------------------
A March 9 e-mail reported on a meeting with ``senior
members of the Secretary's staff last night'' where the author
learned of the decision to proceed to propose suspension of the
new rules and reinstate the old rules in their place.\213\ The
e-mail indicated that DOI planned to keep certain parts, but
dispose of others. ``For instance, DOI did decide to leave in
place those portions of the final rule that implement the NRC
recommendations. As currently drafted, the proposed rule would
make it clear that DOI does not intend to retain the `SIH'
standard that is one primary focus of the lawsuits.'' \214\
(The SIH standard was the provision for government veto over
mine operation plans.) However, when the rulemaking notice was
published, it proposed suspension of the rule, without specific
attention to plans to eliminate the veto provision. The
documents provided to the Committee shed virtually no light on
how the decision regarding the veto provision was made.
---------------------------------------------------------------------------
\213\ Portion of string e-mail from U.S. Department of Justice
Attorney Gregory Page, Environment and Natural Resources Division
replying to Department of the Interior attorney Joel Yudson,
Solicitor's Office, Headquarters, Department of the Interior,
discussing a DOI meeting concerning the 3809 rule, Washington, D.C.,
March 9, 2001.
\214\ Id.
---------------------------------------------------------------------------
On March 21, 2001, BLM staff communicated with OMB staff in
the Office of Information and Regulatory Affairs regarding the
notice of proposed rulemaking for the 3809 rule, indicating
``Ann Klee at Interior has coordinated with the White House. .
. . Apparently, WH is eager for this to get out.'' \215\ Two
days later, on March 23, BLM proposed to suspend the final
regulations which had been published on November 21, 2000.\216\
BLM requested comments on the proposed suspension as well as
whether some of the provisions should not be suspended while
BLM conducted a review of the ``substantial legal and policy''
concerns raised by plaintiffs in the pending litigation. In a
horse-before-cart rulemaking process, addressing those
substantial legal and policy concerns would naturally come
before a decision to proceed to suspend the rule, but, based on
the documents, they appear to be an afterthought.
---------------------------------------------------------------------------
\215\ Ann Klee is the Counselor to the Secretary of the Interior.
E-mail from Group Manager, Regulatory Affairs, Bureau of Land
Management, Department of the Interior to Desk Officer, Office of
Information and Regulatory Affairs, Office of Management and Budget,
``Subject: 3809,'' March 21, 2001.
\216\ 66 Fed. Reg. 16162 (March 23, 2001).
---------------------------------------------------------------------------
BLM explained: ``If a final decision is reached to suspend
the revised rules, BLM would reinstate the previous rules
verbatim as a final rule to avoid a regulatory vacuum while
judicial and administrative review of the revised 3809 rules
proceed.'' \217\ BLM stated that it ``cannot predict the
outcome of its review of the issues that have been raised . . .
at some point either the suspension will be lifted or BLM may
engage in further rulemaking.'' \218\ The notice stated that
plaintiffs in the lawsuits had asserted that BLM improperly
issued the revised rules in violation of a variety of statutes,
\219\ and the environmental plaintiffs asserted that the rules
were not sufficiently stringent. While the notice described the
Nevada Governor's concerns about the loss of jobs and income
from miners being precluded from engaging in operations that
they might otherwise pursue, there was no discussion of the
impact of some of these practices on the natural resources and
on taxpayers who must pay the costs of clean-up--just a generic
reference to ``environmental concerns'' raised by the
plaintiffs in the lawsuit. For example, no mention was made of
the fact that a joint State/Federal task force in Nevada had
estimated that there are anywhere from 200,000 to 500,000
abandoned mine ``features'' in that State, 2,000 to 15,000 of
which may have the potential to impact surface or ground
waters.\220\
---------------------------------------------------------------------------
\217\ 66 Fed. Reg. 16164 (March 23, 2001).
\218\ Id.
\219\ Allegations regarding violations of law included the notice
and comment provisions of the APA, NEPA, the Regulatory Flexibility
Act, the Federal Land Policy and Management Act, the General Mining
Law, and prohibitions in the Appropriations Acts for Fiscal Years 1999
and 2000. As noted above, the plaintiffs had not succeeded in obtaining
a preliminary injunction to prohibit implementation of the regulation.
\220\ ``Features'' is not defined. Among the types of features
listed throughout the report are acid mine drainage, releases from
tailings ponds, ground and surface water contamination or the potential
for contamination, heap leaches, elevated levels of cyanide and metals
in leach pads, drums, trenches, pipelines, and abandoned buildings and
equipment. The document was prepared, among other reasons, to set
priorities for funding remediation of abandoned sites in Nevada. State
of Nevada, Interagency Abandoned Mine Land Environmental Task Force,
``Nevada Abandoned Mine Lands Report,'' September 1999 at 4.
---------------------------------------------------------------------------
BLM received approximately 49,000 comments, 95 percent of
which were opposed to the proposed suspension.\221\ But on
October 30, 2001 BLM issued a new final rule \222\ which
amended some provisions of the November 2000 rule and returned
others to the pre-existing regulations. Notably, the new
regulation changed the definition of ``unnecessary and undue
degradation'' to eliminate the provision ``causing substantial
irreparable harm to significant scientific, cultural, or
environmental resource values . . .'' and it eliminated the
provision by which BLM could disapprove a plan of operation
because it would cause such harm.\223\ It also eliminated the
sections establishing administrative civil penalties, \224\ and
took out ``most of the 2000 rules' environmental and
operational performance standards and replaced them with the
1980 rule standards,'' \225\ but retained the standards on
acid-forming materials and leaching operations.\226\ BLM's rule
returned the liability provisions to the regulations in place
prior to the 2000 change and retained the financial guarantee
(``bonding'') provisions to assure ``that mining operators,
rather than the nation's taxpayers, bear the costs of
reclaiming mined lands.'' \227\ The Federal Register notice
invited comments on the final rule indicating that BLM ``may
make further adjustments to the rules.'' \228\ That same day,
BLM also published the final rule as a proposed rule ``to
obtain further public comment on changes to these regulations
that BLM is adopting in a final rule that appears elsewhere in
today's Federal Register'' and to seek comment on five topics,
including whether the regulations published contained ``other
provisions which are either overly burdensome or fail to
provide adequate environmental protection,'' whether
``additional innovative means are available to provide sound
and reliable financial guarantees,'' and ``whether we should
amend the regulations regarding BLM's relationship to states
and the delegations these rules provide.'' \229\
---------------------------------------------------------------------------
\221\ 66 Fed. Reg. 54836 (October 30, 2001).
\222\ 66 Fed. Reg. 54834 (October 30, 2001).
\223\ 66 Fed. Reg. 54849 (October 30, 2001).
\224\ BLM said it removed the provisions because its authority was
uncertain and would ``work with the Congress to clarify our
authority.'' Id. On October 25, 2001, the Secretary transmitted a
letter to Congress in which she urged Congress to draft legislation
that includes ``permanent authorization of a mining claim holding fee;
revision of the patent system; authorization of a production payment
system; authorization of administrative penalties; and an expanded role
for the States in managing the mining program.'' Letter to the
Honorable Jeff Bingaman, Chairman, Committee on Energy and Natural
Resources, United States Senate, Washington, D.C., from Gale A. Norton,
Secretary of the Interior, Washington, D.C., October 25, 2001.
\225\ 66 Fed. Reg. 54836 (October 30, 2001).
\226\ 66 Fed. Reg. 54845 (October 30, 2001).
\227\ October 25, 2001 news release.
\228\ 66 Fed. Reg. 54835 (October 30, 2001).
\229\ 66 Fed. Reg. 54863 (October 30, 2001). The version of the
final rule which was published as a proposed rule contained some
modifications from the final version. The comment period was re-opened
through May 13, 2002. 67 Fed. Reg. 17962 (April 12, 2002).
---------------------------------------------------------------------------
(3) Changes Address Industry Concerns
The changes that were made in the final rule closely track
what appear to have been initial expectations for the
regulations, as reflected in a document dated March 22, the day
before the proposed suspension appeared in the Federal Register
on March 23, 2001. This seven-page document (marked
``Preliminary Draft--Not Reviewed or Approved'') consists of a
chart, which, when compared to the revised regulation published
on October 30, 2001, raises a question as to how much was
decided before the proposal was published for comment. It lists
by subject more than 80 sections of the regulations. The chart
has columns entitled ``initial assessment'' (retain, modify,
reconsider, drop) and ``comment/rationale.'' The government
veto provisions had the initial assessment ``drop.'' Among the
provisions identified as ``reconsider'' were the joint and
several liability provisions (``Industry hates; . . .'');
``performance standards'' (``Entire section requires review. .
. . Industry believes some of the requirements go too far'');
and ``civil penalties'' (``NRC supports but legality question.
Industry opposed.'') \230\ On November 29, 2001, the National
Mining Association filed a notice of dismissal of its challenge
to the rule, and the case was dismissed without prejudice.\231\
---------------------------------------------------------------------------
\230\ Untitled document, March 22, 2001, marked as ``Preliminary
Draft--Not Reviewed or Approved. Subject to Change'' and Attorney Work
Product, Deliberative Process/Predecisional, Attorney Client Privilege,
distributed March 22, and released in litigation.
\231\ National Mining Association v. Norton, No. 00-2998 (HHK)
(D.D.C. filed November 29, 2001) (Notice of Dismissal); (D.D.C. filed
January 10, 2002) (Order dismissing complaint).
---------------------------------------------------------------------------
In issuing the new final regulation, the BLM concluded that
its action was consistent with the directive contained in the
Federal Land Policy and Management Act to ``prevent unnecessary
or undue degradation'' \232\ of the public lands, determining
that other existing laws and regulatory requirements were
sufficient to protect the land.\233\ Of course, the majority of
these authorities were in place during the time period that BLM
had not succeeded in controlling the impacts of cyanide leach
mining which led to the proposal of the change in the first
place. Thus, it is not surprising that many were skeptical that
reliance on these requirements would provide adequate
protection, even with the few new provisions that were
retained.
---------------------------------------------------------------------------
\232\ 66 Fed. Reg. 54835 (October 30, 2001). On October 23, 2001,
the new DOI Solicitor issued a legal opinion in support of the rule.
(Solicitor's Opinion M-37007, the ``Meyers'' Opinion). It addressed the
department's legal authority and reversed an opinion issued in December
1999 by the previous Solicitor (Solicitor's Opinion M-36999, the
``Leshy'' Opinion). The Leshy opinion had concluded that DOI had the
authority to deny a plan of operations for a mine and the authority to
issue new regulations changing the regulation definition of
``unnecessary or undue degradation'' to clarify that operators must not
cause ``substantial irreparable harm'' to significant resources that
cannot be effectively mitigated. Mr. Leshy's conclusion was based in
part on the language in FLPMA, 43 U.S.C. Sec. 1732 (b): ``The
conjunction `or' between `unnecessary' and `undue' speaks of a
Secretarial authority to address separate types of degradation--that
which is `unnecessary' and that which is `undue'.'' As to activities
under the Mining Law, he said that the question is not whether a mine
causes any degradation or harmful impacts, but rather, how much, of
what character and whether it is ``undue.'' The Meyers opinion
concluded that the standard established in the 2000 regulations could
not be supported. He acknowledged that ``unnecessary or undue
degradation'' is not defined by the statute and that there is no
legislative history on the matter, nevertheless he concluded, in part,
that in construing the language in FLMPA regarding ``undue or
unnecessary degradation,'' the word ``or'' means ``and.''
\233\ BLM provided the following explanation that existing laws
were adequate: ``BLM does not need an SIH standard in its rules either
to protect against unnecessary degradation or to protect against undue
degradation. FLPMA does not define either concept to mean substantial
irreparable harm. Moreover, BLM has other statutory and regulatory
means of preventing irreparable harm to significant scientific,
cultural, or environmental resource values. These include the
Endangered Species Act, the Archaeological Resources Protection Act,
withdrawal under Section 204 of FLPMA (43 U.S.C. Sec. 1714), the
establishment of areas of critical environmental concern (ACEC's) under
Section 202 (c)(3) of FLPMA, 43 U.S.C. Sec. 1712 (c)(3) and the
performance standards in section 3809.420 to recite a partial list.''
66 Fed. Reg. 54838 (October 30, 2001).
---------------------------------------------------------------------------
As noted above, public comment on the proposed suspension
of the rule was overwhelmingly against the rollback. In a
hearing before the Senate Governmental Affairs Committee, a
resident of Yarnell, Arizona expressed his frustrations over
the impact on his community of the DOI's decision to eliminate
the ``veto'' provision as a tool to prohibit mining in certain
circumstances. Without it, he believes that the residents of
Yarnell have no hope of stopping a proposed open-pit cyanide
heap-leach gold mine to be located 500 feet from their homes.
He testified: ``[t]he completed mine would tear down the site
of our 5,000-foot mountain and replace it with a huge, 400
foot-deep open pit, unfilled forever. Add to that the fact that
the mine would use 7 million pounds of cyanide to extract the
gold, and you have a monumental threat to our town, our water,
our health, and our safety.'' \234\ (At the time of the
hearing, the operator had not proceeded further to establish
operations, however, residents feared an increase in the price
of gold would rekindle interest in pursuing its operation.)
---------------------------------------------------------------------------
\234\ Public Health and Natural Resources: A Review of the
Implementation of Our Environmental Laws, Part I and II, Hearing before
the Senate Committee on Governmental Affairs, S. Hrg. 107-466 (March 7
and 13, 2002) (statement of Donald Newhouse, Guardians of the Rural
Environment).
---------------------------------------------------------------------------
In essence, after a nearly decade and a half effort aimed
at improving protection against the ill-effects of hardrock
mining, the Bush Interior Department issued an amalgamated
regulation eliminating many of the new provisions that were
most troublesome to the mining industry. Subsequently, BLM
began ``evaluating comments, including some on the lack of
available surety bonds, on its final Surface Management
regulations'' \235\ and is currently participating in a DOI
bonding task force examining the industry's ability to get
bonds as a result of losses in the surety industry after the
events of September 11.\236\
---------------------------------------------------------------------------
\235\ Prepared statement of Tom Fulton, Deputy Assistant Secretary
for Land and Minerals Management, U.S. Department of the Interior,
Statement on ``Availability of Bonds to Meet Federal Requirements for
Mining, Oil & Gas Projects,'' before the Subcommittee on Energy and
Mineral Resources, House Committee on Resources, July 23, 2002 at 3.
\236\ Id. at 1.
---------------------------------------------------------------------------
C. Arsenic in Drinking Water Standard
The Bush Administration's desire to reconsider
environmental regulations that had been subject to extensive
consideration repeated itself with the EPA's regulation
regarding arsenic in drinking water. After decades of study and
years of public comment, EPA issued a final regulation lowering
the maximum contaminant level--the ``MCL''--for arsenic in
drinking water to 10 parts per billion (``ppb,'' also equal to
micrograms per liter (g/L)) which appeared in the
printed Federal Register of January 22, 2001.\237\ The EPA
regulation replaced the 50 parts per billion standard which had
been in place since 1942.\238\ The new regulation brought the
U.S. standard into line with the one set by the World Health
Organization (WHO), \239\ a standard also followed by the
European Union.\240\ The agency set an effective date for the
regulation of March 23, 2001 and set certain compliance dates
effective by January 22, 2004 and January 23, 2006.\241\ The
delayed starts were due to the lengthy lead time necessary for
utilities to make the equipment and other changes necessary to
comply with the regulation. The rule provided that for purposes
of judicial review, it was promulgated as of January 22,
2001.\242\ In announcing the rule, EPA observed that the new
standard would provide additional protection for 13 million
Americans against cancer and other health problems, including
cardiovascular disease and diabetes, as well as neurological
effects.\243\
---------------------------------------------------------------------------
\237\ 66 Fed. Reg. 6976 (January 22, 2001).
\238\ Mary Tiemann, ``Arsenic in Drinking Water: Recent Regulatory
Developments and Issues,'' CRS Report for Congress, RS20672, April 29,
2002, at CRS-2 (hereinafter ``RS20672'').
\239\ EPA pointed out that while the same, the WHO standard and the
EPA's new standard were based on different factors. Therefore, EPA
observed that a future change in the WHO standard would not necessarily
lead to a change in the EPA standard. 66 Fed. Reg. 7025 (January 22,
2001).
\240\ New Drinking Water Directive. (Council Directive 98/83/EC on
the quality of water intended for human consumption.) November 3, 1998.
\241\ 66 Fed. Reg. 6976 (January 22, 2001).
\242\ Regulations that are subject to judicial review are also
promulgated for APA purposes. Natural Resources Defense Council v.
Environmental Protection Agency, 683 F.2d 752, 759 (3d Cir. 1982).
\243\ U.S. Environmental Protection Agency, Office of Water,
``Drinking Water Standard for Arsenic,'' January 2001.
---------------------------------------------------------------------------
Most occurrences in the United States of arsenic exposures
have been caused by ingesting arsenic in drinking water, or by
eating plants or animals exposed to arsenic in water. Arsenic
in water is both naturally occurring--from the erosion of the
earth's crust--and the result of pollution. It can be
introduced into the water supply as the result of releases from
agriculture, mining, and its use as a wood preservative, and as
an ingredient in paints and semi-conductors.\244\ In a 1999
report, the National Academy of Sciences (NAS) concluded that
the EPA's then-in-force maximum contaminant level for arsenic
in drinking water of 50 ppb ``does not achieve EPA's goal for
public-health protection and, therefore, requires downward
revision as promptly as possible.'' \245\ The NAS found
sufficient evidence from studies in Taiwan, Chile, and
Argentina to conclude that chronic arsenic exposure, primarily
from drinking water, caused skin and internal cancers and
cardiovascular and neurological effects.\246\ NAS concluded
that large epidemiology studies in Taiwan provided the best
empirical human data available and there was sufficient
evidence of a dose-response relationship between those cancers
and exposure to arsenic in drinking water. For example, one
study showed that among males, ``mortality increased with
increasing arsenic concentrations in water for cancers of all
sites combined, and cancers of the bladder, kidney, skin, lung,
liver, prostate, and leukemia when considered separately. Among
females, increase in mortality were observed for all sites
combined and cancers of the bladder, kidney, skin, lung, and
liver.'' \247\ From other studies, NAS reported that, ``arsenic
might induce overt gastrointestinal disturbances, ranging from
mild abdominal cramping and diarrhea to severe life-threatening
hemorrhagic gastroenteritis associated with shock.'' \248\ It
also reported that exposures ``in the range of milligrams to
grams per day have induced the rapid appearance of serious
overt cardiovascular manifestations, including hypotension,
congestive heart failure, and cardiac arrhythmias.'' \249\ NAS
also reported that ``[a]cute inorganic arsenic intoxication
that produces initial gastrointestinal or cardiovascular
symptoms can be followed by . . . central-nervous-system
effects'' ranging from mild confusion to seizures and
coma.\250\ Other reported effects include alterations in
pulmonary, hematological (e.g. anemia) and reproductive/
developmental function, \251\ and in the pigmentation of the
skin and the development of keratoses.\252\
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\244\ RS20672 at CRS-1.
\245\ Subcommittee on Arsenic in Drinking Water, Committee on
Toxicology, Board on Environmental Studies and Toxicology, Commission
on Life Sciences, National Research Council, Arsenic in Drinking Water,
National Academy Press, Washington, D.C. 1999 (hereinafter ``1999 NRC
Report''). Executive Summary at 9.
\246\ 1999 NRC Report, Executive Summary at 2.
\247\ Another study showed a ``significant association with arsenic
concentration was found for cancers of the liver, nasal cavity, lung,
skin, bladder, and kidney in both sexes and for prostate cancer in
males.'' 1999 NRC Report at 93.
\248\ 1999 NRC Report at 105.
\249\ Id. at 106.
\250\ Id. at 119.
\251\ U.S. Department of Health and Human Services, Agency for
Toxic Substances and Disease Registry, 1998.
\252\ 66 Fed. Reg. 7001 (January 22, 2001).
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(1) The Rule's Development
The SDWA required the EPA to establish limits on the extent
to which public drinking water may contain different
contaminants, including arsenic. In 1985, EPA had proposed a
recommended maximum contaminant level of 50 g/L (or 50
ppb).\253\ In 1986, Congress included arsenic on a list of 83
contaminants for which EPA was required to issue new standards
by 1989. EPA missed that deadline due to its extensive review
of risk assessment issues.\254\ In the 1996 amendments to the
SDWA, Congress again directed the EPA to establish a new
standard for arsenic, this time requiring a proposal by January
1, 2000 and a final standard by January 1, 2001.\255\ (The
January 1, 2001 deadline was extended by the EPA's FY 2001
appropriations act to June 22, 2001.) \256\ The amendments also
required the development of a comprehensive research plan for
arsenic and required that EPA conduct its studies in
consultation with the National Academy of Sciences and others.
Congress authorized appropriations of $2.5 million for each of
fiscal years 1997 through 2000 for arsenic studies.\257\
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\253\ 50 Fed. Reg. 46936 (November 13, 1985).
\254\ RS20672 at CRS-2.
\255\ Pub. L. 104-182, Sec. 109(a).
\256\ Pub. L. 106-377, Appendix A, Title III, 114 Stat. 1441A-41.
\257\ Pub. L. 104-182, Sec. 109(a).
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The SDWA requires EPA to set two specific concentrations
for each designated contaminant in drinking water--the maximum
contaminant level goal (``MCLG'') and the maximum contaminant
level (``MCL''). The nonenforceable MCLG is the level at which
no known or anticipated adverse health effects occur and that
allows an adequate margin of safety, \258\ based on the best
available information.\259\ EPA must then set an enforceable
standard (MCL) as close to the MCLG as is ``feasible,'' taking
into account the best technology, treatment, or other means
available (and taking costs into consideration).\260\ EPA's
determination of whether a standard is ``feasible'' is based on
costs to systems serving more than 50,000 people.\261\ In 1996,
Congress amended the SWDA to require that when proposing a
rule, EPA must publish a determination as to whether or not the
benefits of the standard justify the costs. If EPA determines
that the benefits do not justify the costs, EPA may set the
standard at the level that maximizes health risk reduction
benefits at a cost that is justified by the benefits, \262\
although the statute limits the circumstances under which such
authority can be exercised.\263\ The 1996 amendments also
provided that States or EPA may grant temporary exemptions from
the standard if, due to compelling factors--including economic
factors--a system cannot comply on time.\264\ The SWDA also
contains the so-called ``anti-backsliding provision''--it
provides that any revision of a national drinking water
regulation shall maintain or provide for the greater health of
persons.\265\
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\258\ 42 U.S.C. Sec. 300g-1(b)(4)(A).
\259\ 42 U.S.C. Sec. 300g-1(b)(3)(A).
\260\ 42 U.S.C. Sec. 300g-1(b)(4) (B) and (D).
\261\ RS20672 at CRS-4.
\262\ S. Rept. 104-169, 30.
\263\ 42 U.S.C. Sec. 300g-1(b)(6) (A) and (B).
\264\ 42 U.S.C. Sec. 300g-5.
\265\ 42 U.S.C. Sec. 300g-1(b)(9).
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On December 6, 1996, EPA sought public comment on four
arsenic research topics.\266\ In 1997, 1998, and 1999 EPA held
general public meetings to present information on EPA's plans
to develop a National Primary Drinking Water Regulation,
seeking input from the regulated community, public health
organizations, State and Tribal drinking water programs,
academia, environmental and public interest groups, engineering
firms, and other stakeholders.\267\ In 1999, it met with State
representatives and in 2000 held a dialogue with State
officials and associations that represent elected officials to
consult on expected compliance and implementation costs.\268\
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\266\ 61 Fed. Reg. 64739 (December 6, 1996).
\267\ 63 Fed. Reg. 3890 (January 27, 1998); 63 Fed. Reg. 15401
(March 31, 1998); 64 Fed. Reg. 23297 (April 30, 1999); 66 Fed. Reg.
6993 (January 22, 2001).
\268\ 66 Fed. Reg. 6993 (January 22, 2001).
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In 1997, EPA requested the National Academy of Sciences'
(NAS) Subcommittee on Arsenic of the Committee on Toxicology of
the National Research Council to review EPA's assessments of
arsenic. The resulting NAS report, along with information
regarding other relevant studies, was made available for public
review in connection with EPA's publication of its proposed
rule on June 22, 2000.\269\ The June 22 notice proposed setting
the MCLG at 0, and the MCL at 5 ppb. EPA had determined that
the ``feasible'' level was actually 3 ppb, but since the
benefits at this level would not justify the costs, it proposed
the 5 ppb standard.\270\ It also requested public comments on
alternative MCLs of 3, 10, and 20 ppb.\271\ After consideration
of the comments and further analysis of the costs and benefits,
EPA ultimately set the standard at 10 ppb, citing its authority
under the SDWA to set the standard at a level that maximizes
health risk reduction benefits at a cost that is justified by
the benefits.\272\ In issuing the final rule, EPA anticipated
that some water systems would need to utilize the law's
authority providing for temporary exemptions from the
standard.\273\
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\269\ 65 Fed. Reg. 38899 (June 22, 2000).
\270\ RS20672 at CRS-4.
\271\ 65 Fed. Reg. 38888 and 38899 (June 22, 2000).
\272\ 66 Fed. Reg. 7045 (January 22, 2001).
\273\ 66 Fed. Reg. 6988 (January 22, 2001).
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As soon as the decision was announced, the National Mining
Association, the American Wood Preservers Institute, the
Western Coalition of Arid States, the States of Nebraska and
New Mexico, as well as the Cities of El Paso, Texas,
Albuquerque, New Mexico and Superior, Nebraska all challenged
the rule in the U.S. Court of Appeals for the District of
Columbia.\274\ In their view, EPA had moved hastily with its
decision to lower the maximum level of allowable arsenic.\275\
Among their objections were costs, disagreements with the
conclusions EPA reached regarding the scientific support for
the standard, questions about the feasibility of treatment
technology, and complaints that EPA ignored issues raised by
its science advisory board.\276\ The American Wood Preservers
Institute--whose members pressure-treat lumber and wood
products with a mixture that includes arsenic--was concerned
about EPA's finding that there is no safe threshold for
arsenic.\277\ The Natural Resources Defense Council (NRDC) sued
to strengthen the standard.\278\
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\274\ American Wood Preservers Institute v. Environmental
Protection Agency, No. 01-1097 (D.C. Cir. filed March 1, 2001), State
of Nebraska, ex rel. v. Environmental Protection Agency, No. 01-1101
(D.C. Cir. filed March 5, 2001), City of Albuquerque v. Environmental
Protection Agency, No. 01-1105 (D.C. Cir. filed March 6, 2001), City of
El Paso v. Environmental Protection Agency, No. 01-1106 (D.C. Cir.
filed March 6, 2001), State of New Mexico v. Environmental Protection
Agency, No. 01-1107 (D.C. Cir. filed March 7, 2001), Western Coalition
of Arid States (``WESTCAS'') v. Environmental Protection Agency, No.
01-1108 (D.C. Cir. filed March 7, 2001), National Mining Association v.
Environmental Protection Agency, No. 01-1109 (D.C. Cir. filed March 7,
2001).
\275\ Darren Samuelsohn, ``Arsenic: EPA's Rule Invites Lawsuits
Legislation,'' Greenwire, March 9, 2001; ``Arsenic: Evidence Strong for
New EPA Standard--NAS,'' Greenwire, September 12, 2001.
\276\ American Wood Preservers Institute v. Environmental
Protection Action, No. 01-1097 (D.C. Cir. March 22, 2002) (Non-Binding
Statement of Issues filed by American Wood Preservers Institute at 2)
(Statement of Issues Submitted by Petitioners State of New Mexico, City
of Albuquerque, City of El Paso and Western Coalition of Arid States at
2-3).
\277\ Thomas E. Knauer, ``EPA Issues Controversial Arsenic
Standard,'' Virginia Environmental Compliance Update, March 2001.
\278\ Cindy Skrzycki, ``The Regulators: Wood Preservers Feel the
Pressure,'' The Washington Post, March 20, 2001. NRDC subsequently
withdrew this petition for review. Natural Resources Defense Council v.
Whitman, No. 01-1291 (D.C. Cir. April 16, 2002) (Unopposed Motion for
Voluntary Dismissal).
---------------------------------------------------------------------------
(2) Arsenic Rule Targeted for Change
Although it is unclear exactly when, it appears that the
Bush Administration targeted the arsenic rule for review even
before it took office and had its new EPA administrator engage
in any review of the extensive administrative record. The
regulation is listed on an undated, untitled document submitted
by EPA which appears to summarize the responses to a
questionnaire for the Transition Advisory Team regarding
``significant administrative actions that should be reviewed
early in the Administration.'' The document states: ``This rule
significantly lowers the allowable limit for arsenic in
drinking water and should be reviewed to ensure that its
benefits are justified in light of its costs.'' Another
unidentified and undated document provided during the inquiry
states ``the Administration should actively review this
[arsenic] rule'' and describes the regulatory implications as
follows: ``EPA may adopt inappropriately conservative risk
assessment assumptions used in this rule in development of
other water quality criteria.'' \279\
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\279\ This document has a matrix entitled ``Regulatory Actions
Subject to Bush Administration Regulatory Review Plan'' and lists 10
EPA regulatory actions.
Administrator Whitman's representative reported that ``two
meetings were held between EPA representatives and the Bush
Administration transition team after November 7, 2000, at which the
arsenic rule may have been discussed.'' Letter from Edward D. Krenik,
Associate Administrator, Office of Congressional and Intergovernmental
Relations, U.S. Environmental Protection Agency to the Honorable Joseph
I. Lieberman, Chairman, Committee on Governmental Affairs, United
States Senate, Washington, D.C., July 10, 2001.
---------------------------------------------------------------------------
After the 10 ppb standard appeared in the Federal Register
dated January 22, 2001, a member of the White House staff and a
representative of Kennecott Utah Copper Corporation--which had
supported continuation of the 50 ppb standard \280\--contacted
EPA to question the publication of the final arsenic rule in
light of the Card memo's requirements.\281\ The response was
deferred to the ``transition team'' for an answer, but the
understanding among EPA staff was that the Federal Register
``went to bed on Friday'' and the new administration could not
stop publication.\282\ That understanding was consistent with
the position taken by the Office of Federal Register where an
official stated that the rules which appeared in the Federal
Register on Monday, January 22, 2001 were actually printed on
the evening of January 19, 2001 and the morning of January 20,
2001. ``Therefore . . . rules published on January 22, 2001,
should be counted as `published' by the time the Card
memorandum was issued'' \283\--and thus final.
---------------------------------------------------------------------------
\280\ Letter from Robert J. Fensterheim, Executive Director,
Environmental Arsenic Council, Washington, D.C. to J. Charles Fox,
United States Environmental Protection Agency Headquarters, Washington,
D.C., November 20, 2000. (The Environmental Arsenic Council is a trade
organization representing chemical and mining companies, including
Kennecott Corporation.)
\281\ E-mail from Congressional Liaison Staff, Office of
Congressional and Intergovernmental Affairs, to staff, Office of
Congressional and Intergovernmental Affairs, U.S. Environmental
Protection Agency, ``White House staff call re: arsenic,'' January 29,
2001. E-mail from ``Adams, William (KUCC)'' to staff, Target and
Analysis Branch, Standard and Risk Management Division, Office of
Ground Water and Drinking Water, U.S. Environmental Protection Agency,
``Re: Request for hard copies of the Arsenic Final Rule and Fact
Sheets,'' January 22, 2001.
\282\ E-mail string, from Attorney, Water Law Office, Office of
General Counsel, to staff, Target and Analysis Branch, Standard and
Risk Management Division, Office of Ground Water and Drinking Water,
U.S. Environmental Protection Agency, ``Re: Request for hard copies of
the Arsenic Final Rule and Fact Sheets,'' January 30, 2001; E-mail
string from Associate General Counsel, Water Law Office, Office of
General Counsel, to Acting Assistant Administrator, Office of Water,
``Request for hard copies of the Arsenic Final Rule and Fact Sheets,''
January 30, 2001.
\283\ GAO-02-370R at 3.
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The new administrator received requests to reconsider the
rule, mirroring arguments that had been raised against the
standard and which were analyzed and addressed during the
lengthy rulemaking process.\284\ For example, the National
Rural Water Association sent a brief memorandum asking EPA to
``take another look'' at the rule ``to include enhanced
flexibility for small towns faced with outrageous costs. . .
.'' \285\ Members of Congress from Western States also voiced
their concerns that utilities and States in areas with the
highest naturally occurring levels of arsenic would bear a high
cost of compliance.\286\ The Director of the Office of Ground
Water and Drinking Water, Office of Water (OW) asked staff of
the OW and the Office of General Counsel (OGC) to prepare
talking points for use if there were an opportunity to engage
Administrator Whitman on arsenic. Staff prepared a one-page
document which broadly outlined the status of the regulation,
its time sensitivity, a summary of the regulation, its
regulatory impacts, and stakeholder involvement to date and
stakeholder reaction. The document noted OMB's preference for a
``higher final MCL based on their belief that EPA had
underestimated the costs of compliance and was overly
conservative in the Agency's risk analysis for arsenic.'' \287\
An additional page of talking points, which appear to have been
prepared by the staff of the OW, state: ``We believe that the
final MCL of 10 ppb is appropriate from a number of
standpoints: health effects, science, uncertainties, costs and
benefits.'' \288\ There were concerns expressed within the
agency about a change:
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\284\ 66 Fed. Reg. 6987-89, 6992, 7018-22, 7036, and 7038-7044
(January 22, 2001).
\285\ Memorandum from Mike Keegan and John Montgomery, National
Rural Water Association, to Administrator Whitman, Environmental
Protection Agency, January 31, 2001; Letter from Robert Johnson, Chief
Executive Officer, National Rural Water Association to W-99-16 Arsenic
Comment Clerk, Environmental Protection Agency, Washington, D.C.,
August 30, 2000.
\286\ Letter from Representative Doug Bereuter, et al., U.S. House
of Representatives to Christine Whitman, Administrator, Environmental
Protection Agency, Washington, D.C., January 30, 2001; Letter from
Senator Pete Domenici, U.S. Senate to Christine Whitman, Administrator,
Environmental Protection Agency, Washington, D.C., February 12, 2001.
\287\ E-mail from Chief, Targeting and Analysis Branch, Standard
and Risk Management Division, Office of Ground Water and Drinking Water
to Director, Office of Ground Water and Drinking Water, Office of
Water, U.S. Environmental Protection Agency, February 12, 2001, with
attachment, ``Arsenic in Drinking Water Final Rule.''
\288\ Id. and e-mail from Chief, Targeting and Analysis Branch,
Standard and Risk Management Division, Office of Ground Water and
Drinking Water to Director, Office of Ground Water and Drinking Water,
Office of Water, ``Revised Talking Points on Arsenic,'' February 13,
2001, with attachment, ``Arsenic in Drinking Water. Additional Talking
Points.''
EPA could have set a more stringent standard (3 ppb),
based on good science and available technologies.
However, as SDWA allows, EPA took cost considerations
into account and set a reasonable standard (10 ppb). .
. . The rule as written allows us to re-open it a later
date based on new information. If EPA were to re-open
the rule now, the debate will be contentious and highly
politicized, and decision making will be very
difficult. . . .\289\
---------------------------------------------------------------------------
\289\ E-mail from Policy Staff, Immediate Office of the Assistant
Administrator to Elizabeth Laroe, Acting Director, Water Policy Staff,
Office of Water, U.S. Environmental Protection Agency, February 22,
2001.
The outgoing General Counsel had identified the obstacles
presented by the APA and the SDWA in delaying--and changing--a
rule already published in the Federal Register, \290\ a concern
shared by the Acting General Counsel: ``We have no good cause
argument to make here. . . . A revision to the Jan. 22 rule
requires a record that explains why we have changed our mind .
. . and a revision that makes the standard less stringent
without a prior withdrawal is problematic under the SDWA
``anti-backsliding'' provision, which states that any revision
to a drinking water standard must maintain or provide for
greater health protection.'' \291\
---------------------------------------------------------------------------
\290\ Memorandum from General Counsel to Deputy Administrator,
Subject: ``Whether the Administrator can withhold, withdraw from
publication or revise a rule document that has been signed and
published in the Federal Register, or otherwise disseminated, without
going through further notice and comment rulemaking procedures,'' U.S.
Environmental Protection Agency.
\291\ This discussion occurs in the context of an ``interim final
rule option,'' applying the ``good cause'' exemption contained in the
Administrative Procedure Act. Notes of Acting General Counsel, U.S.
Environmental Protection Agency, ``Interim Final Rule Option,'' March
4, 2001.
---------------------------------------------------------------------------
On March 6, 2001, staff from the OW and other staff briefed
the Counselor to the Administrator on the background and
options for the arsenic standard, including a discussion of the
impact of the law's anti-backsliding provisions, and concerns
expressed by some States regarding costs. The prepared slides
contained OW's recommendation:
Support the final rule because
--LIt took over 20 years to issue and we need to move
forward to ensure safe drinking water.
--LWhile some questions remain, there is more than
adequate scientific support for the rule.
--LIt is a reasonable decision that is entirely
consistent with the international community. (e.g.,
World Health Organization; European Union both set the
standards at 10 ppb).\292\
---------------------------------------------------------------------------
\292\ Office of Water, ``Providing Safe Drinking Water: The Role of
the New Arsenic Standard, Briefing for Jessica Furey,'' Counselor to
the Administrator, U.S. Environmental Protection Agency, March 6, 2001.
This was followed by a briefing for Administrator Whitman
on March 8--the slides for that briefing did not include this
recommendation.\293\ A briefing paper provided to Administrator
Whitman in advance identified ``Key Policy Issues: Many
utilities and States in most hard-hit areas believe final rule
is overly stringent, citing the relatively high costs of
compliance and uncertainties surrounding the health effects
science.'' \294\ During this time, representatives of the
American Water Works Association \295\ and the Western
Governor's Association (WGA) were in contact with the EPA
regarding the standard. The WGA proposed a forum with
Administrator Whitman to discuss the new arsenic rule--a forum
for which the proposed topics included EPA's authority to void
the new rule.\296\ Notes made by the acting assistant
administrator, Office of Water, from a March 12 meeting with
agency officials states: ``Revisit arsenic rule. Not convinced
on. Need options: legal and policy.'' \297\
---------------------------------------------------------------------------
\293\ Office of Water, ``Providing Safe Drinking Water, The Role of
the New Arsenic Standard,'' Briefing for Governor Christine Whitman,
Administrator, U.S. Environmental Protection Agency, March 8, 2001.
\294\ Copy of e-mail from Director, Office of Ground Water and
Drinking Water, Office of Water to Counselor to the Administrator,
Office of the Administrator, ``Two-Pager for the Administrator on
Arsenic,'' attachment ``Final Arsenic in Drinking Water Rule,'' March
7, 2001 with handwritten notation, ``Given to CTW prior to 3/08/01
briefing.''
\295\ E-mail from Alan Roberson, Director of Regulatory Affairs,
American Water Works Association to Counselor to the Administrator,
Office of the Administrator and Deputy Associate Administrator, Office
of Congressional and Intergovernmental Relations, U.S. Environmental
Protection Agency referring to conversation that took place
``yesterday,'' March 13, 2001.
\296\ E-mail from Shaun McGrath, Program Manager, Western
Governor's Association to U.S. Environmental Protection Agency, ``WGA
Arsenic Forum,'' March 7, 2001, with attached draft agenda.
\297\ Notes from 3/12 meeting of Acting Assistant Administrator,
Office of Water, U.S. Environmental Protection Agency.
---------------------------------------------------------------------------
EPA officials were in communication with the White House
regarding a proposed withdrawal of the standard. On March 14,
EPA submitted by e-mail the weekly cabinet report to the
Executive Office of the President, which identified plans for
arsenic:
EPA is discussing with White House staff the
recommendation for a proposed withdrawal of the arsenic
standard for drinking water in order to seek additional
public comment and input and to pursue external peer
review. . . . Issues under question include the
inconclusiveness of health effects studies in
establishing a safe level of arsenic and the cost-
benefit aspect of the rule, which has a
disproportionate impact on small systems. . . . The
Administrator will participate in roundtable
discussions at a Western Governors' Association
meeting.\298\ . . . A decision to propose to withdraw
the rule will not lessen protection conferred by the
existing standard during the time of the review.\299\
---------------------------------------------------------------------------
\298\ On March 22, Administrator Whitman participated in a forum
organized by the WGA to discuss the rule. Reportedly, she expressed
uncertainty regarding the level of appropriate protection and stated--
``We want to make sure all the stakeholders come to the table'' during
a new comment period. . . .'' Kit Miniclier, ``Tougher arsenic standard
promised, EPA reassures West on drinking water,'' The Denver Post,
March 23, 2001 at A-01.
\299\ E-mail from Associate Director, Drinking Water Protection
Division, Office of Water, U.S. Environmental Protection Agency to
Executive Office of the President, ``Weekly Cabinet Report:
Environmental Protection Agency,'' March 14, 2001.
The March 15 notes made during a meeting with Administrator
Whitman contain the notation: ``meeting with Bridgeland Arsenic
Rule.'' \300\ (John Bridgeland is the Director of the White
House Office of Domestic Policy.)
---------------------------------------------------------------------------
\300\ Notes of Associate Administrator, Office of Communications,
Education, and Media Relations, U.S. Environmental Protection Agency
during meeting with Administrator Whitman, March 15, 2001.
---------------------------------------------------------------------------
Less than 2 weeks after her briefing, on March 20,
Administrator Whitman, noting that she wanted to examine ``what
may have been a rushed decision'' and to be ``sure that the
conclusions about arsenic in the rule are supported by the best
available science,'' announced that EPA would ``propose to
withdraw the pending arsenic standard for drinking water that
was issued on January 22.'' \301\ Without providing specifics,
or explaining how the decades long deliberations that produced
the rule could be characterized as a ``rushed decision,'' EPA
Administrator Whitman cited concerns about scientific
uncertainty and high implementation costs \302\ reportedly
telling representatives of water agencies: ``In short, we're
going to replace sound-bite rule-making with sound-science
rule-making.'' \303\ In a Letter to the Editor of The New York
Times, she noted: ``Sound science and strong analysis should
not be overlooked in a rush to an arbitrary deadline.'' \304\
This theme was reiterated by President Bush who reportedly was
quoted as arguing that: ``At the very last minute, my
predecessor made a decision, and we pulled back his decision so
that we can make a decision based upon sound science and what's
realistic.'' \305\
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\301\ Communications, Education, and Media Relations, U.S.
Environmental Protection Agency, ``EPA to Propose Withdrawal of Arsenic
in Drinking Water Standard; Seeks Independent Reviews,'' March 20,
2001.
\302\ Jocelyn Kaiser, ``Science Only One Part of Arsenic
Standards,'' 291 Science at 2533, March 30, 2001; ``EPA Reinstates Its
Arsenic Rule,'' 108 Chemical Engineering at 23, December 1, 2001.
\303\ Bill McAllister, ``Arsenic standard dumped. Bush drops
tougher Clinton regulations on drinking water,'' The Denver Post, March
21, 2001 at A-01.
\304\ Christine Todd Whitman, Administrator, Environmental
Protection Agency, Letter to the Editor, The New York Times, March 23,
2001, at A-18.
\305\ David L. Greene, ``Economy comes first Bush says: President
places people's energy needs ahead of environment,'' The Baltimore Sun,
March 30, 2001 at 1A.
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Administrator Whitman's reported assertion that the final
rule was based on ``sound-bite'' rather than ``sound-science''
rulemaking \306\ was a serious allegation suggesting non-
compliance with a core requirement of the SDWA. The act
requires the administrator to use the best available, peer-
reviewed science studies in setting standards.\307\ In this
case, the rule was decades in the making; arsenic had been the
subject of numerous scientific studies; and the 1999 report
from the National Academy of Sciences had concluded that
downward revision of the limit from 50 ppb was required as
``promptly as possible.''
---------------------------------------------------------------------------
\306\ Supra, notes 303 and 304.
\307\ 42 USC Sec. 300g-1(b)(3)(A).
---------------------------------------------------------------------------
Before suggesting that the agency's own final rule and
analysis of the science was in need of further review, it is
reasonable to expect the administrator to articulate the basis
for her concerns with the rule and the science. Under court
challenge, EPA would ultimately be required to provide a
rational basis and a new record for concluding that the final
standard required replacement and a different standard was
justified, particularly in the face of an extensive record
supporting the January 2001 rule. Yet, it appears that it was
only after the administrator's announcement of the decision to
propose to withdraw the rule that officials focused attention
on a key element of the decisionmaking process supporting the
January rule--the record. On March 21, EPA staff were advised
of an upcoming meeting with the ``Transition Team'' to discuss
``the record for the arsenic rule.'' \308\
---------------------------------------------------------------------------
\308\ E-mail from Chief, Targeting and Analysis Branch, Standard
and Risk Management Division, Office of Ground Water and Drinking
Water, to Division Director, Office of Ground Water and Drinking Water,
Office of Water, U.S. Environmental Protection Agency, ``Arsenic--
Meeting with the Administrator's Staff on Monday, March 26,'' March 21,
2001. The e-mail asks recipients to prepare an overview of the formal
procedural steps that were followed, the process used to develop the
major elements of the rule, outreach efforts, and ideas for obtaining
additional review of ``controversial'' pieces.
---------------------------------------------------------------------------
The documents made available for review reflect that prior
to the administrator's announcement of her concerns about
``sound-science,'' the agency undertook no comprehensive review
of either the record or the science supporting the January 2001
standard. What there is consists of three pages of notes of a
Bush appointee reviewing regulations at the EPA, that list a
variety of issues and observations, including what appear to be
concerns raised by OMB.\309\ In essence, when announcing the
proposed rollback, the administrator seemed to be practicing
the very ``sound-bite'' policymaking that she criticized.
---------------------------------------------------------------------------
\309\ The notes include the statement ``look at incremental gains
from 20 to 10'' and the notation: ``call John Graham.'' (John Graham
was Director of the Center for Risk Analysis at the Harvard School of
Public Health until March 15, 2001. On July 19, 2001, he was confirmed
by the U.S. Senate as Administrator of the Office of Information and
Regulatory Affairs at OMB.) Notes of Program Advisor, Office of the
Administrator, U.S. Environmental Protection Agency, March 16, 2001.
---------------------------------------------------------------------------
Upon hearing of the administrator's March 20 announcement,
some career staff within EPA expressed surprise and
unhappiness, with one voicing the opinion that, in fact, much
of the science pushed for a more stringent standard
(5g/l) than was adopted.\310\ In response to a
complaint about not involving the arsenic MCL team in the
discussion, a senior OW official explained the decision: ``As
I'm sure you can appreciate, this was a policy decision on the
part of the Administration. We were given the chance to brief
the administrator and made, I believe, a strong case for the
rule.'' \311\ Another noted that options were fairly discussed
and ``[it] was made very clear that this was not a science but
a policy decision under consideration.'' \312\ This is telling.
In decisions regarding public health and environmental
protection, policy decisions should be science-based
decisions--the two types of decisions should not be considered
mutually exclusive.
---------------------------------------------------------------------------
\310\ E-mail from Arsenic MCL Team, to Acting Deputy Assistant
Administrator for Science, ``Note to As team,'' forwarding message and
reply, U.S. Environmental Protection Agency, March 21, 2001.
\311\ E-mail from Chief, Targeting and Analysis Branch, Standard
and Risk Management Division, Office of Ground Water and Drinking Water
to Arsenic MCL Team, ``EPA to Propose Withdrawal of Arsenic Standard,''
U.S. Environmental Protection Agency, March 20, 2001.
\312\ E-mail from Acting Deputy Assistant Administrator for Science
to Arsenic MCL Team, ``EPA to Propose Withdrawal of Arsenic Standard,''
U.S. Environmental Protection Agency, March 21, 2001.
---------------------------------------------------------------------------
Sixty days after issuance of the Card memo, on March 23,
2001, EPA published a Federal Register notice delaying, without
public comment, the effective date of the new rule from March
23 until May 22, 2001, except for specific amendments which
were not effective until 2004 and 2006.\313\ The notice used
the OMB model language to invoke the rule of procedure and
``good cause'' exceptions to the APA to justify avoidance of
the public comment process. Once again, the rationales for
invoking the exceptions to public notice and comment do not
stand up to scrutiny. Clearly, the procedural exemption did not
apply. A regulation establishing the acceptable maximum
contaminant level for arsenic in water is not a rule governing
the conduct of agency proceedings, but a substantive health and
environmental protection standard required by the SDWA.
Furthermore, no attempt was made to justify, based on the
specific facts of the rule, that ``good cause'' for a delay
existed. (One staff person at EPA raised the question as to
whether or not the rule was covered by the Card memorandum
since the rule was issued ``pursuant to'' a statutory deadline
(Exemption 4 of the Card memo). However, there was also a
question suggesting that the transition team wanted the rule
reviewed in any event.) \314\ This unsupported use of the APA
exemptions is another indication of decisionmakers who either
did not respect or did not understand the role of public
comment in the rulemaking process.\315\
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\313\ 66 Fed. Reg. 16134 (March 23, 2001).
\314\ E-mail string, including e-mail from Attorney, Water Law
Office, Office of General Counsel to Policy Staff, Immediate Office of
the Assistant Administrator, Office of Water, U.S. Environmental
Protection Agency, ``Draft Federal Register Notices Extending Effective
Date for Arsenic,'' January 29, 2001.
\315\ EPA solicited public comment on a subsequent notice further
delaying the effective date. 66 Fed. Reg. 20580 (April 23, 2001).
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After issuing the notice to delay the effective date of the
rule, administration officials focused attention on cost-
benefit issues and a debate over a less stringent standard. On
March 26, the rule's reviewer received a comprehensive briefing
on the decisions supporting the rule \316\ and scheduled a
second meeting for the next day with the ``Office of Water
staff to go into cost issues in greater detail.'' \317\
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\316\ Office of Water, ``Arsenic in Drinking Water Standard,
Presentation to the Administrator's Transition Team,'' U.S.
Environmental Protection Agency, March 26, 2001.
\317\ E-mail from Program Advisor, Office of the Administrator, to
Deputy General Counsel, Office of General Counsel, Program Advisor,
Office of the Administrator, Counselor to the Administrator, Office of
the Administrator, Associate Administrator, Office of Policy, Economics
and Innovation, Acting Assistant Administrator, Office of Water, and
Associate Deputy Administrator, U.S. Environmental Protection Agency,
``Arsenic meeting,'' March 26, 2001.
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During this time, there were contacts between EPA
officials, the OMB, and the White House regarding the standard.
However, the full extent and substance of these contacts cannot
be determined from the EPA documents. For example, an April 3,
2001 message from the Associate Director, Drinking Water
Protection Division, Office of Water, to a Special Assistant,
Office of Research and Development, said, ``Jessica Furey will
give me the current status of arsenic later this afternoon
after she meets with the White House.'' \318\ An April 4 Weekly
Report noted: ``The Agency is discussing with White House staff
and OMB outstanding issues regarding the independent review.''
\319\
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\318\ E-mail regarding status of arsenic regulations, April 3,
2001. The schedule of the Counselor to the Administrator for that day
included a meeting with Jay Lefkowitz, General Counsel, Office of
Management and Budget and Bob Fabricant, Program Advisor, Office of the
Administrator, at the Old Executive Office Building. Jessica Furey
calendar, Environmental Protection Agency, April 3, 2001.
\319\ E-mail from Special Assistant, Office of Research and
Development to Associate Director, Drinking Water Protection Division,
Office of Water, U.S. Environmental Protection Agency, ``Weeklies,''
contains 4 weekly cabinet report summaries, April 18, 2001.
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What is clear from the documents is that OMB staff
advocated a change to a less stringent standard. An activity
report, written by an EPA participant, describes a meeting
between EPA and OMB staff on April 10 ``to determine whether
record would support 20 ppb.'' \320\ The meeting was also
attended by a Special Assistant to the Director of the White
House Domestic Policy Council, and an unidentified person from
the Council on Economic Advisors.\321\ According to a
memorandum describing the meeting, OMB presented its view that
the record would support a final standard of 20 ppb and EPA
defended its 10 ppb decision as reflected in the January rule.
The Program Advisor, Office of the Administrator, reported that
the new administrator had not made a decision on what the
standard should be.\322\
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\320\ E-mail from Division Director, Office of Ground Water and
Drinking Water, Office of Water to Acting Assistant Administrator,
Office of Water, ``Activity Update for Week of April 9 for Regas,''
U.S. Environmental Protection Agency, April 17, 2001.
\321\ Undated memorandum from Division Director, Office of Ground
Water and Drinking Water, Office of Water to Director, Office of Ground
Water and Drinking Water, Office of Water, summary of meeting with
Office of Management and Budget and U.S. Environmental Protection
Agency. An outline of issues to be discussed at the meeting was
provided in advance to EPA by OMB.
\322\ Id.
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Communications continued with OMB after the April 10
meeting. EPA provided OMB a draft Federal Register notice ``for
meeting at 6 p.m. today'' to postpone the effective date of the
rule, with a blank left for the length of time.\323\ An April
16 EPA e-mail message noted the need to coordinate on
information being sent to OMB, ``since the administrator's
office is negotiating with OMB officials at very senior
levels.'' \324\ There was also mention of a meeting on April 17
with White House and OMB staff to make decisions regarding how
to proceed with arsenic.\325\
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\323\ E-mail from Assistant General Counsel, Water Law Office,
Office of General Counsel to Office of Management and Budget,
``Document for Jay Lefkowitz,'' April 11, 2001.
\324\ E-mail from Division Director, Office of Ground Water and
Drinking Water, Office of Water to Chief, Targeting and Analysis
Branch, Standard and Risk Management Division, Office of Ground Water
and Drinking Water, U.S. Environmental Protection Agency,
``Occurrence,'' April 16, 2001.
\325\ E-mail from Division Director, Office of Ground Water and
Drinking Water, Office of Water to Acting Assistant Administrator,
Office of Water and others, ``Arsenic and Yucca Mountain Update,'' with
attachment ``Activity Update for Week of April 9 for Regas,'' U.S.
Environmental Protection Agency, April 17, 2001.
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(3) Additional Study and Decision to Retain Standard
Shortly after the meeting in which OMB advocated a less
stringent standard, on April 12, officials from EPA and the DOJ
met with litigants who had challenged the arsenic
standard.\326\ According to a report regarding the meeting,
``Industry emphasized major concern that EPA not move too fast
on substance at expense of record support or industry
participation. Industry indicated strong willingness to
consider 9-12 month process although Westcas \327\ continued to
emphasize need to extend final 2006 compliance date. Bottom
line: Industry more than willing to support independent review
process. . . .'' \328\ Two weeks later, on April 23, EPA issued
a notice proposing and seeking comment on further delay of the
arsenic standard's effective date for 9 months (from May 22,
2001 to February 22, 2002). EPA provided this rationale:
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\326\ Id. As noted above, on March 1, the American Wood Preservers
had filed the first of several petitions for review of the final rule
with the D.C. Circuit Court.
\327\ ``Westcas'' is the Western Coalition of Arid States.
\328\ Supra, note 325. The participants in the meeting included
many of the litigants: The Utah Water Act Group (UWAG), the National
Mining Association, the Western Coalition of Arid States, the State of
Nebraska, and the Natural Resources Defense Council.
Stakeholders have an understandable desire to ensure
that any new regulation be based on accurate and
reliable compliance cost estimates. Stakeholders also
want to be confident that the health risks associated
with a new standard have been appropriately evaluated
and are based on the best available science.\329\
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\329\ 66 Fed. Reg. 20581 (April 23, 2001).
Like the administrator's announcement of her plans to withdraw
the standard, this notice provided no information regarding
specific concerns relating to the reliability of the cost
estimates or the quality of the science.
EPA then requested that the National Academy of Sciences
convene a panel of scientific experts to review EPA's
interpretation and application of arsenic research from the
1999 report of the National Research Council, and to evaluate
any new arsenic research that had become available since 1999.
It also announced that it would work with the National Drinking
Water Advisory Council \330\ to review assumptions and
methodologies underlying the Agency's estimate of arsenic
compliance costs.\331\
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\330\ The National Drinking Water Advisory Council consists of
members of the general public, and representatives of State and local
agencies and private groups who are concerned with safe drinking water.
It advises the EPA on ``everything that the Agency does relating to
drinking water.'' Office of Water, U.S. Environmental Protection
Agency, ``National Drinking Water Advisory Council.'' http://
www.epa.gov/ogwdw/ndwac/council.html
\331\ 66 Fed. Reg. 28580 (April 23, 2001).
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A majority of the commenters on the April 23, 2001 notice
opposed the extension, yet on May 22, 2001, EPA announced that
it would delay the effective date for the rule until February
22, 2002.\332\ This would allow time to ``complete the
reassessment process . . . and to afford the public a full
opportunity to provide further input on the science and costing
analysis underlying EPA's promulgation of the January 22, 2001
arsenic standard.'' \333\ Without explanation as to why the
decade long process did not provide the necessary full
opportunity for comment, EPA concluded that the delay was
justified because it agreed with the ``commenters who argued
that this rule is very important and the issues of cost and
science that are central to the rulemaking deserve one final
review before concluding this rulemaking,'' \334\ and that the
delay would provide more time to develop a mitigation strategy
for those affected by the costs as well as to review scientific
information that had recently become available.\335\ The
commenters who supported the extension, ``most of whom
represented the drinking water industry, small system water
providers, and States,'' believed review was warranted, ``to
consider the financial impact on small systems.'' \336\
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\332\ 66 Fed. Reg. 28345 (May 22, 2001).
\333\ 66 Fed. Reg. 20580 (April 23, 2001).
\334\ 66 Fed. Reg. 28346 (May 22, 2001).
\335\ 66 Fed. Reg. 28347 (May 22, 2001).
\336\ Memorandum from Acting Assistant Administrator, Office of
Water to Christine Whitman, Administrator, Subject: ``Final Rule for
National Primary Drinking Water Regulation for Arsenic--ACTION
MEMORANDUM,'' U.S. Environmental Protection Agency, May 16, 2001.
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Consequently, a year after its June 2000 request for
comments on whether the standard should be set at 3, 5, 10, or
20 ppb, on July 19, 2001, EPA made a strikingly similar request
in the Federal Register soliciting public comment on whether
the standard should be set at 3, 5, 10, or 20 ppb.\337\ A week
later, on July 27, 2001, the House of Representatives amended
the EPA's appropriations bill to prohibit the delay of the
regulation or an increase in the allowable arsenic level.\338\
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\337\ 66 Fed. Reg. 37617 (July 19, 2001).
\338\ 147 Cong. Rec. H4743-51, H4758-59 (July 27, 2001).
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Within the next 2 months, the studies commissioned by EPA
to provide assurances to stakeholders that cost estimates were
accurate and health risks were appropriately evaluated were
submitted, and both reports contained those assurances. The
National Drinking Water Advisory Council, Arsenic Cost Working
Group \339\ submitted its cost review report to Administrator
Whitman on August 23, 2001, which concluded that the EPA
originally did a ``credible job'' of computing the costs to
water systems.\340\ In September 2001, the NRC submitted an
update of its 1999 report supporting the scientific findings.
As described above, the 1999 report had found sufficient
evidence that ingestion of arsenic in drinking water caused
skin, bladder, and lung cancer. In the 2001 update, the NRC
considered several hundred new scientific articles on arsenic,
and concluded that these ``other recent studies of arsenic in
humans, taken together with the many studies discussed in the
1999 NRC report, provide a sound and sufficient database
showing an association between bladder and lung cancers and
chronic arsenic exposure in drinking water, and they provide a
basis for quantitative risk assessment.'' \341\ The updated
report also found new evidence that chronic exposure to arsenic
in drinking water might also be associated with an increased
risk of high blood pressure and diabetes. In short, EPA's
review process not only confirmed its findings and refuted
charges that the original rule was based on something less than
sound science, it provided additional evidence of the need for
change, and, as reflected in subsequent litigation filed on
December 14, 2001, raised questions as to whether the standard
should be further strengthened.
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\339\ The Arsenic Cost Working Group was a panel of nationally
recognized technical experts established to work with EPA's National
Drinking Water Advisory Council to review the cost of compliance
estimates associated with the final arsenic rule. 66 Fed. Reg. 22551
(May 4, 2001).
\340\ Report of the Arsenic Cost Working Group to the National
Drinking Water Advisory Council, Final, August 14, 2001.
\341\ Subcommittee to Update the 1999 Arsenic in Drinking Water
Report, Committee on Toxicology, Board on Environmental Studies and
Toxicology, Division on Earth and Life Studies, National Research
Council, National Academy Press, Arsenic in Drinking Water: 2001 Update
at 3 and 5.
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On October 31, 2001, the date on which public comments were
due on the contents of the reports, \342\ EPA issued a press
release announcing Administrator Whitman's decision that the
arsenic standard would be 10 parts per billion, stating that
``we are reassured by all of the data that significant
reductions are necessary . . . a standard of 10 ppb protects
public health based on the best available science and ensures
that the cost of the standard is achievable.'' \343\ No
explanation was provided for the reasons underlying the
decision or addressing the material developed since issuance of
the January 2001 rule. On November 8, the Congress approved its
final language prohibiting EPA from using funds appropriated
for FY 2002 to delay the January rule.\344\ It was accompanied
by a House and Senate Conference Report which contained
language directing EPA to review the agency's affordability
criteria, assess how small system variance and exemption
programs should be implemented for arsenic, and recommend
procedures to grant more time for compliance by small
communities in cases where compliance by 2006 would pose an
undue economic hardship.\345\ EPA later reported to Congress
that it planned to conduct a thorough examination of its
approach to implementing the affordability provisions of the
Safe Drinking Water Act, including consideration of issues
raised by commenters on the regulation proposals and by the
Arsenic Cost Working Group of the National Drinking Water
Advisory Council. EPA also committed to using all tools
available under the SDWA to provide assistance to small
systems.\346\
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\342\ 66 Fed. Reg. 50961 (October 5, 2001).
\343\ U.S. Environmental Protection Agency, Headquarters Press
Release, Washington, D.C., ``EPA Announces Arsenic Standard for
Drinking Water of 10 Parts Per Billion,'' October 31, 2001.
\344\ Pub. L. 107-73, Title IV, Sec. 430 and endnote.
\345\ H.R. Rept. 107-272, 175.
\346\ Office of Water, U.S. Environmental Protection Agency, Report
to Congress: Small Systems Arsenic Implementation Issues, March 2002,
at 11 and 18.
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On December 14, 2001, the Natural Resources Defense Council
filed a petition with the D.C. Court of Appeals challenging
EPA's October 31 action, arguing that the 2001 National Academy
of Sciences report demonstrated that EPA had substantially
underestimated cancer risks in promulgating the January rule.
Based on the NAS report and new scientific data available, NRDC
argued that a more protective standard than the 10 ppb standard
was required by the provisions of the SDWA.\347\ In a motion to
dismiss the petition, EPA argued that the agency's review of
the arsenic MCL is still underway, a review that will continue
until 2007.\348\ The EPA had repeatedly stated it would issue a
rule based on its review, \349\ and the OMB reported that the
``Bush Administration will issue a final rule based on the
results by February 22, 2002'' \350\--notwithstanding the fact
that a final rule had been issued in January, 2001. No decision
has yet been rendered in this case, which is among the
consolidated cases currently under consideration by the
court.\351\
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\347\ Natural Resources Defense Council v. Whitman, No. 01-1515
(D.C. Cir. filed December 14, 2001). NRDC asserted that the press
release announcement was a final decision, subject to review by the
court.
\348\ American Wood Preservers Institute v. United States
Environmental Protection Agency, No. 01-1097 (Respondent EPA's Refiled
and Amended Motion to Dismiss Petition Numbers 01-1291, 01-1515, and
01-1529 for Lack of Jurisdiction at 6, filed April 4, 2002).
\349\ 66 Fed. Reg. 20582 (April 23, 2001); 66 Fed. Reg. 28344-47
(May 22, 2001); 66 Fed. Reg. 37628 (July 19, 2001); 66 Fed. Reg. 42975
(August 16, 2001); 66 Fed. Reg. 50962 (October 5, 2001).
\350\ 2001 OMB Report at 38, supra note 16.
\351\ American Wood Preservers Institute v. Whitman, No. 01-1097
and consolidated cases (D.C. Cir. Dec. 19, 2001).
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OMB also identified the arsenic rule as a ``High Priority
Regulatory Review Issue'' in a report to Congress, based on
recommendations from the Mercatus Center that ``benefits do not
justify costs at standards of either 5 or 10 ppb.'' \352\ This,
coupled with EPA's statements to the court, raises questions
regarding the EPA's future intentions regarding the arsenic
standard.
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\352\ 2001 OMB Report at 63 and 113, supra note 16.
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