I previously noted that the record of the Bush administration in defending its rulemaking decisions was dangerously near the Mendoza Line. Indeed, even four years after Bush left office, it was continuing to lose decisions. Now, we can say that the record has extended to five years. Last week, in National Parks Conservation Association v. Jewell, the United States District Court for the District of Columbia vacated the 2008 rule issued by the Office of Surface Mining Reclamation and Enforcement, which had itself revised the 1983 stream buffer zone rule.
The ground for the vacatur was simple: OSM failed to consult with the Fish and Wildlife Service under the Endangered Species Act before replacing the 1983 rule with the 2008 rule. Since the duty to consult is triggered by a very lenient “may effect” standard, it was clear that the 2008 rule was on very weak ground.
Indeed, for those “sue and settle” enthusiasts among our readers, it is worth noting that the Obama administration did not even try to defend the rule and agreed that vacatur was appropriate. It was left to the National Mining Association, which had intervened as a defendant, to defend the 2008 rule and argue against vacatur. In this case, two strikes were sufficient to render NMA out. The rule failed due to the absence of consultation. Vacatur was deemed appropriate by the Court because the result of vacatur was simply the reinstatement of the 1983 rule, which all stakeholders had managed to live with for 25 years.
We must be close to done with review of all of the Bush-era creative environmental rules, though the ozone NAAQS mess still has to be resolved. It will be interesting to see whether President Clinton or President Paul (or take your choice) will still have to decide whether to continue to defend any remaining Bush-era rules. The wheels of justice grind slowly.