Last week, the Bureau of Land Management announced the repeal of a regulation that required the emergency suspension of mining on BLM lands. The Center for Biological Diversity immediately decried this "last-minute attempt to roll back environmental regulations." The CBD and other environmental groups had filed suit to enforce the regulation so as to prevent uranium mining near the Grand Canyon.
On the surface, this action would seem to fit a familiar narrative about the Bush Administration's last-minute efforts to relax environmental regulations for industry's benefit. Digging a bit deeper reveals something more. The BLM's move may please the mining industry, but it also eliminates a deeply troubling — and almost certainly unconstitutional — regulation from the books.
The regulation allowed one of two Congressional committees to force the BLM to alter the treatment of designated federal lands when either committee determined there were "emergency" circumstances. In effect, a single Congressional committee could, acting alone, overrule administrative action and alter the legal status of existing mining claims. If a unicameral legislative veto is unconstitutional, as the Supreme Court held in INS v. Chadha, then a unilateral congressional committee veto is clearly out of bounds as well.
Interestingly enough, the regulation had been on the books for quite some time. While its constitutionality had been challenged, it had escaped judicial invalidation largely because the few courts that looked at it were able to avoid confronting the provision head on. In any event, were a court to consider it now — perhaps in the CBD's challenge to the uranium mine mentioned above — I don't think there's much question it would agree with the Bush Administration that this regulation had to go.
"...“It’s truly disgraceful that the Grand Canyon may fall victim to uranium contamination under the Bush administration’s midnight rule changes,”..."
Uh, can I say, "TOO LATE?" Well, I just did. Folks, uranium mining has occurred there in the past. In fact, for those of you who might be interested and visiting sometime soon, walk from the Village out to Hopi Point. You will pass right by one on the way. Can't miss it.
While I don't really want to see any mining up there or in the immediate area, it isn't like "contamination" isn't/wasn't there already. The water from the Little Colorado is already contaminated by "naturally occurring" uranium deposits, not by mining.
I guess it just goes to show how little the enviro-types know about what they speak. I "lived and worked" for the park service up there in my much younger years. Had a ball (back in 1970/71/72). One thing you learned very early was where those naturally occurring points of contamination were and how to avoid them. Especially true if you made a habit of hiking away from the main corridor trails......
I'm just sayin'
Then why doesn't a mining company that has been adversely effected bring suit to that extent? That would seem like the proper procedure, in the proper venue, to make this argument.
Actually (tongue in cheek), if we want bio-diversity, I can think of no better way than to encourage bio-diversity..... and mutations do that :) :)
Oren asked, "Then why doesn't a mining company that has been adversely effected bring suit to that extent? That would seem like the proper procedure, in the proper venue, to make this argument."
Wouldn't it be more proper for the executive branch to simply follow the law and act on the past decision rather than tie up judicial resources?
May I suggest that the better term would be monocameral.
Yes, as opposed to stereo-cameral or pano-cameral or single-lens-reflex-cameral :)
Invalidating congressional law is not the role of the executive.
Incidentally, I know Peter Strauss of Columbia has suggested that committee vetoes might be distinguishable from the legislative veto invalidated from Chadha. (His article's subtitle is, "was there a baby in the bathwater?") I don't remember his argument, though.
I don't think Oren clicked through the link Jonathan provided. The executive branch is eliminating executive branch-made regulations; it is not "invalidating congressional law". In fact, the reason that they are eliminating the regulations is so that a judge may rule on the Constitutionality of the "congressional law":
Accordingly, it seems that the Bush administration is not doing anything that Oren seems offended by. The executive branch is revising executive branch-made regulations, in order to facilitate a review of the "congressional law" by the judicial branch.
Moreover, the judicial branch has not deemed this law unconstitutional.
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