CategoryPublic Policy

U.S. Fish & Wildlife Service finalizes regulatory changes under Endangered Species Act

The U.S. Fish & Wildlife Service (FWS) issued three final rules on Monday affecting the implementation of the Endangered Species Act (ESA). The rules concern interagency cooperation, the classification of threatened and endangered species, the listing and removal of endangered species, and critical habitat designations, among other processes.
 
The first rule change aims to clarify the ESA’s interagency cooperation procedures between FWS, the U.S. Department of the Interior, the U.S. Department of Commerce, and the National Oceanic and Atmospheric Administration.
 
The second rule change eliminates automatic protections for threatened species that mirror those for endangered species. Instead, FWS will determine the level of protection for threatened species on a case-by-case basis.
 
The final rule change addresses the listing and removal of endangered species and critical habitat designations, among other process changes. The rule allows agency officials to consider economic factors in listing decisions and interpret the language “foreseeable future” under the ESA as a time period in which agency officials can reasonably determine likely threats to a species. The rule also puts forth changes to the critical habitat designation process, including a requirement that species must occupy critical habitats unless unoccupied areas are essential for species conservation. This change aims to address the United States Supreme Court’s November 2018 decision in _Weyerhaeuser Company v. United States Fish and Wildlife Service_, which held in part that an area must be a habitat before it can meet the narrower category of critical habitat.
 
The Trump administration argued that the rule changes reduce the regulatory burden on the public and increase transparency into agency decision making concerning species’ protections. Opponents of the rules claim that the changes reduce protections for endangered species and limit the consideration of potential future threats in agency decision making.
 
The attorneys general of California and Massachusetts announced their intention on Monday to sue the Trump administration over the rule changes.
 


Trump administration requests D.C. Circuit lift injunction blocking civil service executive orders

Trump administration officials asked the United States Court of Appeals for the District of Columbia Circuit to immediately lift the injunction blocking enforcement of President Trump’s (R) three civil service executive orders. Government attorneys argued that the injunction has created uncertainty and stalled collective bargaining negotiations between federal agencies and union groups.
 
A three-judge panel of the D.C. Circuit unanimously reversed and vacated a lower court decision that had blocked provisions of three civil service executive orders issued by President Trump (R). The judges held in their July 16 ruling that the lower court did not have jurisdiction and that the plaintiffs—a coalition of union groups—should have brought the case before the Federal Labor Relations Authority (FLRA) as required by the Federal Service Labor-Management Relations Statute (FSLMRS).
 
Plaintiffs have a 45-day grace period to request a rehearing in the case before the injunction is lifted. Tony Reardon, president of the National Treasury Employees Union, stated on July 24 stated that the plaintiffs plan to seek a rehearing before the full D.C. Circuit.
 


Council on Environmental Quality extends comment period for new greenhouse gas emissions guidance

On July 24, the White House Council on Environmental Quality (CEQ) gave the public more time to comment on new guidance related to how federal agencies should address greenhouse gas emissions. The guidance tells agencies to focus on the reasonably foreseeable environmental consequences of major actions. It also tells agencies that they do not have to weigh the monetary costs and benefits of proposed actions under the National Environmental Policy Act (NEPA).
 
The CEQ published the draft guidance in the Federal Register on June 26 and originally scheduled a month for public feedback. After a request to extend the comment period, CEQ published a notice moving the deadline to August 26, 2019.
 
The CEQ guidance will replace 2016 guidance about greenhouse gas emissions. The 2016 guidance was withdrawn following President Trump’s Executive Order 13783, which directed federal agencies to review all rules related to domestic energy development and to remove any that imposed significant economic costs.
 
The NEPA established the CEQ inside the Executive Office of the President to coordinate agency actions that affect environmental quality and to make sure agencies comply with NEPA requirements. The NEPA requires agencies to consider the environmental consequences of proposed actions and to tell the public about how the agency makes decisions.
 
Guidance is a term in administrative law used to describe documents created by administrative agencies to explain rules, laws, and procedures. Guidance documents affect how agencies administer regulations and programs. However, they are not supposed to be legally binding in the same way as rules issued through the rulemaking processes of the Administrative Procedure Act.
 


Federal Register weekly update; highest weekly number of significant regulatory actions since May

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.
 
During the week of July 22 to July 26, the number of pages in the Federal Register increased by 1,452 pages, bringing the year-to-date total to 36,454 pages. The week’s Federal Register featured a total of 486 documents, including 367 notices, 10 presidential documents, 43 proposed rules, and 66 final rules.
 
Three proposed rules and one final rule were deemed significant under E.O. 12866—meaning that they may have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules.
 
During the same week in 2018, the number of pages in the Federal Register increased by 1,646 pages for a year-to-date total of 36,398 pages. As of July 26, the 2019 total led the 2018 total by 56 pages.
 
The Trump administration has added an average of 1,215 pages to the Federal Register each week in 2019 as of July 26. Over the course of 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. During the Obama administration, the Federal Register increased by an average of 1,658 pages per week.
 
According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.
 
Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. The project is a neutral, nonpartisan encyclopedic resource that defines and analyzes the administrative state, including its philosophical origins, legal and judicial precedents, and scholarly examinations of its consequences. The project also monitors and reports on measures of federal government activity.
 
Additional reading:
Click here to find yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


Idaho governor announces new regulatory processes, plans to simplify Idaho regulations

On July 25, Idaho Governor Brad Little announced four changes to the state rulemaking process:
  1. The state will post all notices and schedules for public hearings during the rulemaking process on one website.
  2. Citizens may now subscribe to a state newsletter informing them when new rules are published.
  3. Agencies will have to include a cover sheet with new rules explaining the purpose of the rule, who is covered by the rule, and who to contact for more information.
  4. Agencies will consolidate the chapters of rules they administer to make them easier for the public to understand.
In a July 19 announcement, Governor Little said he wanted to simplify up to 60 percent of the state’s regulations by the end of 2019. He added that he directed agencies to get rid of duplication and not to change fundamental policies. Little said that changing policy is the responsibility of the state legislature.
 
To learn more about Idaho’s regulatory code and other state approaches to the administrative state, click the link below.
 


Trump administration proposes rule easing cancellation of union dues

On July 3, the Office of Personnel Management (OPM) asked the Federal Labor Relations Authority (FLRA) to issue a rule change that would allow federal employees to resign from their unions and revoke dues payroll deductions at any time after the first year of membership.
 
What is the current policy? Section 7115(a) of the Federal Service Labor-Management Relations Statute states any “written assignment which authorizes the agency to deduct from the pay of the employee amounts for the payment of regular and periodic dues” cannot be revoked for a period of one year. FLRA has construed this statute to mean that dues deductions can only be revoked at one-year intervals.
 
What is the proposed policy? OPM has asked FLRA to issue the following statement of policy:
  • “The constitutional principles clarified in Janus have general applicability to agencies and labor organizations in the area of federal employees’ requests to revoke union-dues assignments under Section 7115(a) of the Statute.”
  • “Consistent with Janus, upon receiving an employee’s request to revoke a previously authorized union-dues assignment, an agency should process the request as soon as administratively feasible, if at least one year has passed since the employee initially authorized union-dues assignment from the employee’s pay.”
What comes next? FLRA issued a request for comment on the proposed rule change in the July 12 edition of the Federal Register. Comments are due on or before Aug. 12, 2019.


Trump administration asks court to uphold restrictions on presidential authority over housing agency

In a July 9, 2019, letter, the Federal Housing Finance Agency (FHFA) asked the Fifth Circuit Court of Appeals to uphold for-cause removal protections, which limit the circumstances in which presidents can remove the heads of agencies. The FHFA told the court that the agency’s new director had reconsidered the constitutionality of the agency’s structure.
 
The FHFA sent the letter as part of the ongoing proceedings in Collins v. Mnuchin, where a panel of the Fifth Circuit found that the structure of the FHFA is unconstitutional because it is led by a single director who is only removable by the president for cause. The court reheard the case en banc in January 2019 and had not announced a decision as of July 11, 2019.
 
The FHFA was created by the Housing and Economic Recovery Act of 2008 (HERA) to oversee the government-sponsored mortgage security corporations Fannie Mae and Freddie Mac. In Collins v. Mnuchin, Fannie Mae and Freddie Mac shareholders presented the following complaints:
  • A 2012 dividend agreement between the FHFA and the U.S. Department of the Treasury, which rendered their shares valueless, exceeded the statutory authority of the FHFA and the Treasury Department.
  • The FHFA is unconstitutionally structured because it is headed by a single director who is only removable for cause and it does not depend on congressional appropriations.
A district court dismissed the shareholders’ complaints. In a split decision, however, the Fifth Circuit panel reversed the decision on the grounds that the structure of the FHFA violates the separation of powers because the agency’s director is too insulated from presidential control. The court struck the language from HERA that only allowed the president to dismiss the FHFA director for good cause. Though the panel found the FHFA structure unconstitutional, they upheld the power of FHFA and Treasury Department to enter into the dividend agreement.
 
Additional reading:
 
FHFA letter to the 5th Circuit:


Federal Register weekly update; lowest number of presidential documents since first week of 2019

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.
 
During the week of July 8 to July 12, the number of pages in the Federal Register increased by 1,436 pages, bringing the year-to-date total to 33,690 pages. The week’s Federal Register featured a total of 508 documents, including 405 notices, zero presidential documents, 54 proposed rules, and 49 final rules.
 
One proposed rule and two final rules were deemed significant under E.O. 12866—meaning that they may have large impacts on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules.
 
During the same week in 2018, the number of pages in the Federal Register increased by 1,118 pages for a year-to-date total of 32,758 pages. As of July 12, the 2019 total led the 2018 total by 932 pages.
 
The Trump administration has added an average of 1,203 pages to the Federal Register each week in 2019 as of July 12. Over the course of 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. During the Obama administration, the Federal Register increased by an average of 1,658 pages per week.
 
According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.
 
Additional reading:
Click here to find yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


Trump directs federal agencies to provide citizenship information; ends effort to add citizenship question to census

President Donald Trump (R) announced on July 11, 2019, that his administration would cease efforts to add a citizenship question to the 2020 census. Instead, Trump stated that he would issue an executive order directing federal government agencies to provide citizenship information to the United States Department of Commerce.
 
“I am hereby ordering every department and agency in the federal government to provide the Department of Commerce with all requested records regarding the number of citizens and noncitizens in our country,” said Trump. “They must furnish all legally accessible records in their possession immediately. We will utilize these vast federal databases to gain a full, complete, and accurate count of the noncitizen population.”
 
Attorney General William Barr stated that the decision ended the ongoing litigation surrounding the citizenship question on the census.
 
Commerce Secretary Wilbur Ross approved the addition of a citizenship question on the 2020 U.S. Census in March 2018, arguing that the question would improve enforcement of the Voting Rights Act. The question asked, “Is this person a citizen of the United States?”
 
The question was blocked by lower courts on the grounds that it violated the Constitution’s Enumeration Clause and the Census Act. Lower courts argued that Trump administration officials had failed to follow proper administrative procedure under the Administrative Procedure Act (APA).
 
The United States Supreme Court on June 27 held 5-4 to both affirm the legality of a citizenship question on the census and remand the case, Department of Commerce v. New York, to the agency for review. The court ruled that the Trump administration’s decision to add the citizenship question to the census did not violate the Enumeration Clause or the Census Act. However, the court held that Ross’ rationale for adding the question to the census was inconsistent with the administrative record in violation of the APA.
 
The ruling curbed Ross’ exercise of delegated congressional authority by invoking an exception for evaluating agency decisions beyond the scope of the administrative record on a “strong showing of bad faith or improper behavior” drawn from the 1971 case Citizens to Preserve Overton Park v. Volpe. The dissenting justices argued that the exception opens a new legal avenue for challengers to contest administrative actions based solely on pretext.
 


Federal Register weekly update; lowest weekly page total since May

The Federal Register is a daily journal of federal government activity that includes presidential documents, proposed and final rules, and public notices. It is a common measure of an administration’s regulatory activity.
 
During the week of July 1 to July 5, the number of pages in the Federal Register increased by 1,084 pages, bringing the year-to-date total to 32,254 pages. The week’s Federal Register featured a total of 461 documents, including 340 notices, two presidential documents, 46 proposed rules, and 73 final rules.
 
One final rule was deemed significant under E.O. 12866—meaning that it may have a large impact on the economy, environment, public health, or state or local governments. Significant actions may also conflict with presidential priorities or other agency rules.
 
During the same week in 2018, the number of pages in the Federal Register increased by 810 pages for a year-to-date total of 31,640 pages. As of July 5, the 2019 total led the 2018 total by 614 pages.
 
The Trump administration has added an average of 1,195 pages to the Federal Register each week in 2019 as of July 5. Over the course of 2018, the Trump administration added an average of 1,301 pages to the Federal Register each week. During the Obama administration, the Federal Register increased by an average of 1,658 pages per week.
 
According to government data, the Federal Register hit an all-time high of 95,894 pages in 2016.
 
Click here to find yearly information about additions to the Federal Register from 1936 to 2016: https://ballotpedia.org/Historical_additions_to_the_Federal_Register,_1936-2016


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