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Does Concealed Carry Significantly Affect the Environment?

Last December, the Department of the Interior promulgated a midnight regulation relaxing the federal prohibition on gun possession in national parks and wildlife refuges. Under the new regulation, individuals would be permitted to possess concealed, loaded, and operable firearms in national parks and refuges insofar as such possession was permitted under the laws of the state in which a given park or refuge is located.

Anti-gun and pro-conservation organizations, including the Brady Campaign to Prevent Gun Violence and the National Parks and Conservation Association, promptly sued alleging, among other things, that the Interior Department failed to comply with the National Environmental Policy Act (NEPA) in issuing the new rule. Specifically, the complaining groups alleged, Interior conducted neither an environmental impact statement (EIS) or environmental assessment before instituting the change. In response, the Interior Department argued that no EIS or EA was required because loosening the restrictions on concealed carry in national parks and refuges would have no environmental impact whatsoever. Specifically, they argued that because the rule change does not allow any new uses of firearms in national parks and refuges, they could presume that the rule change would not have a significant effect on the environment, and therefore no further analysis was required. Indeed, Interior argued that the rule change itself would "not have any actual effects on the environment" because it did not "authorize any actual impacts on the environment."

Judge Colleen Kollar-Kotelly did not find the Interior Department's arguments all that convincing and, last Thursday, issued a preliminary injunction barring implementation of the new rule. This was not too surprising. As Judge Kollar-Kotelly noted in her opinion, the Interior Department had long maintained that concealed carry should be prohibited in national parks so as to minimize potential threats to wildlife, natural resources, and park visitors. The Interior Department's policy may have been misguided, as concealed carry is allowed in national forests and other federal lands, but that does not mean the policy change has no effect. Further, she noted, many of those who supported the rule change argued that allowing concealed carry would enable park and refuge visitors to protect themselves from potentially dangerous wildlife. Again, these may be good arguments in support of the rule change, but they undermine the claim that the revision would produce no environmental effects.

Interior's instinct to harmonize the regulation of federal lands with the laws of the states in which such lands are located in laudable, but it does not excuse failing to comply with applicable legal requirements. The Interior Department's decision not to conduct a full EIS was probably justified, but I think this conclusion should have been based upon an environmental assessment. Interior may well have been correct that such effects would have been rather small -- and, if so, an EA would have so found -- but it is implausible that the rule change would have had no effect at all. Given that the Interior Department had long maintained a contrary position, it is difficult to accept its revised claims without greater substantiation. Whenever an agency alters a longstanding policy position, it will be subject to greater judicial scrutiny, and Interior failed to meet the greater burden here.

I did not follow the development of this rule all that closely, but I suspect the ultimate decision not to conduct an EA, let alone a full EIS, was motivated by the Administration's desire to finalize the rule before the Obama team took over. Conducting greater analysis, even an EA, would have made this difficult, but it also made the new rule more vulnerable. If my supposition is correct, this is further evidence that "midnight" rulemaking is not conducive to sound rulemaking, even when the rule change is a good one.

Related Posts (on one page):

  1. No Appeal of Concealed Carry in Parks Decision:
  2. Does Concealed Carry Significantly Affect the Environment?
George Lyon (mail):
The change in the regulation was not a midnight regulation. The rule making had been pending for some time. Hence your premise behind this post is invalid.
3.24.2009 11:28am
Houston Lawyer:
If a bear is known to eat people, it will be tracked down and killed anyway. I suppose it is a positive environmental impact if at least one person has to be killed by a bear before the bear could be killed in self defense.
3.24.2009 11:31am
Jonathan H. Adler (mail) (www):
Mr. Lyon --

A midnight regulation is one that is promulgated in the midnight period. That the regulation was pending for some time is irrelevant. Indeed, many midnight regulations are those that are pending for a long time, but not acutally promulgated until the last minute for political reasons.

JHA
3.24.2009 11:34am
Oren:
Interesting. Since the EIS is a procedural and not substantive requirement, why the heck didn't Bush's Interior do it? Presumably they want the regs to stick, is drafting a few dozen pages of analysis reaching that result really that hard?

Of course, this is premised on the fact that EISs cannot be challenged substantively ...
3.24.2009 11:37am
Jonathan H. Adler (mail) (www):
One more thing, the potential rule change was initiated by Interior Secretary Kempthorne in February 2008, when he asked for draft regulations that could be proposed by April 30, 2008. Given the somewhat glacial pace of most rulemakings, it is certainly plausible to argue that the rule was rushed through so it would take effect before the change in Administrations. As it happens, the rule became effective in January 2009.

JHA
3.24.2009 11:38am
George Lyon (mail):
Mr. Adler --

I can accept that definition. But it appears to me your reasoning is based on an assumed lack of opportunity for full analysis. That the RM was pending for some time would tend to invalidate that conclusion.
3.24.2009 11:41am
Oren:
George, lack of opportunity for analysis: no. Lack of analysis: yes. Interior failed to complete some boilerplate procedural hurdles and so the reg doesn't stick.
3.24.2009 11:47am
Tatil:

Since the EIS is a procedural and not substantive requirement, why the heck didn't Bush's Interior do it? Presumably they want the regs to stick, is drafting a few dozen pages of analysis reaching that result really that hard?

What makes you think they want rules to stick? They had eight years to pass a fairly simple rule, but instead made a half hearted attempt at the very end. If the new administration drags its foot on the issue, it will effectively be reversing the decision. Then, GOP would have a nice little issue to rally pro-gun groups during the next election. There are certain issues that rails people on both sides, but that does not make much financial impact to the main political contributors. I am fairly certain both parties try to milk any of those issues as long as possible.
3.24.2009 11:52am
pintler:
How de minimis can the impact of a rule change be in order to require environmental review? I couldn't tell from the decision whether that standard is very, very low, or the judge thinks the impact of the rule change will be greater than I do.

If, say, a pedestrian is hurt near a campground in Yellowstone NP, and the park service decides to lower the speed limit near that campground from 35 to 25, that will have impacts - hopefully beneficial ones like fewer impacts (sorry!) with pedestrians, and negative ones, like the slightly slower speed leading to lower gas mileage and thus a tiny bit more global warming, and so on - but surely the NPS makes these kinds of changes w/o the full panoply of environmental assessments?

Leaving aside emotional and sociological considerations for a minute, what kind of environmental effects could be caused by CCW in parks? If the gun is not fired, I can't see much of an impact from its mere presence. That begs the question of how often they will be fired, legitimately or otherwise? Looking at the 'otherwise' first, are EIS/EA proponents thinking that permit holders who don't shoot stop signs outside of the park will start doing so inside the park, or poaching, or whatever?

Legitimate use could be against two or four legged predators, but in either case you would be in a world of hurt if your shooting wasn't legally justified self defense. I like to think of myself as a fairly radical environmentalist, but I can't imagine objections to a legally justified shooting - a reasonable person in your shoes would have feared for their life - on environmental grounds.

For the emotional and sociological aspects, I recall a line from the decision implying that e.g. people feeling bad (or good!) about having guns in a park was an impact that must be considered. That was not something I had heard in the context of EISs before.

In short, I guess, I am all for environmental preservation, especially in parks - I spend a couple of months a year hiking - but I am having real trouble finding a rational basis for this decision. I'd love it if someone could offer a thoughtful explanation of the logic and science behind this.
3.24.2009 12:07pm
George Mocsary (mail):
This reminds me of the change over to steel shot for some hunting purposes which was ostensibly undertaken by the industry for environmental reasons. That said, obviously there wouldn't be nearly enough self-defense shootings to warrant a genuine worry about more lead in the parks. I could, however, see overzealous anti-gun advocates and judges adding this to a laundry list of factor-like reasons to ban CCW in parks, along with stray bullet theories and such.
3.24.2009 12:10pm
green-grizzly (mail):
I went to the Grand Canyon on Thursday morning to an isolated spot (Toroweap) where it is impossible to get news and came back on Saturday. If I was carrying concealed (I'm taking the 5th on that issue!), I would have been complying with the law when I entered the Park but breaking it by the time I left. And I would not have had a way to know some judge changed the law in the interim.

Of course if you are carrying concealed, no one would know you are carrying anyway. That is why the old regulation is idiotic. I did see two Rangers and they had no reason to suspect that I was carrying (or not). Of course they had no reason to suspect the rule had changed either.

I thought the judge had to make a lot of anti-gun assumptions to get past the irreparable injury, balance of harms and serving the public interest requirements. Hopefully the NRA appeal will get the injunction thrown out.

It is my understanding that new secretary of the interior is having an environmental assessment done for the new rule. He is fairly pro-gun, and when he was a Senator he supported in committee the bill that would have thrown out the old regulation.

The NRA is still working on getting that passed, and the Democrats are having to perform all sorts of acrobatics keep it out of a pending Wilderness bill.
3.24.2009 12:25pm
David E. Young (mail) (www):
If I remember correctly, this rule was supposed to go into effect either three or six months prior to when it actually did. The Interior Department received complaints at the end of the rule change process that opponents of the proposed rule had not had enough time under the normal established comment period to provide information from their side. It is possible they were not fully aware of the progress of this rule as it passed through the system. As a result, implementation of the new rule was delayed specifically because of gun control advocate complaints that they needed an additional complete comment period before any decision was made.

There were some complaints that those opposed to the new rule were trying to delay any decision or implementation into a new administration that might not put it into effect.

While this rule came at the end of the Bush Administration, it was not exactly rushed through without input from those who opposed it. Implementation was specifically held up for an entire comment period for input from those who were opposed to the new rule. Any suggestion that the rule was rushed through at the last moment, possibly without input from all stakeholders, should at least be tempered with these facts.
3.24.2009 12:39pm
cboldt (mail):
On the flip side of this, once the old regulation against permitting firearms is rescinded, those seeking to reimplement it will be up against the same barrier erected by Judge Colleen Kollar-Kotelly.
.
Oh wait. Nevermind. I keep forgetting about that one way ratchet.
.
And, for the time being, the DOI can always neglect to enforce its own regulation. The opinion is worth a read, just for the humor in it. "Nobody is harmed by being left without a firearm for self-defense." ROTFL.
3.24.2009 12:54pm
Seamus (mail):

For the emotional and sociological aspects, I recall a line from the decision implying that e.g. people feeling bad (or good!) about having guns in a park was an impact that must be considered.



If that was really in the decision (I'm too lazy to check), then it would seem to fly in the face of the holding in Met Ed v. PANE, 460 US 766 (1983).
3.24.2009 1:03pm
cboldt (mail):
-- feeling bad (or good!) about having guns in a park was an impact that must be considered ... --
.


That point was used to provide the Brady Campaign to Prevent Gun Violence with standing. There needed to be an "injury," and the "feel less safe" canard was used as the injury. The judge didn't come right out and claim that such an injury is "environmental" in nature.
.
Just another point of logical disconnect in the opinion. Any allegation of harm or damage is sufficient to confer standing, and every rule change requires an environmental impact statement.
3.24.2009 1:17pm
whit:
using "environmental impact" as a justification (and i use that word loosely) for banning guns makes about as much sense as banning underwire bras for the same reason.

the vast majority of people wearing those bras , much like those carrying concealed, will never affect the environment. but on occasion, an abandoned bra (it was a hot and steamy night) will add a devastating rayon and wire component to the environment

oh no
3.24.2009 1:21pm
Richard Aubrey (mail):
Thousand cuts. Lilliputs.
Did you pack the non-lead ammo for Yellowstone, dear?
Rats. I forgot.
We can only get that in Topeka on alternate Saturdays.
I guess I'll leave the pistol at home.
3.24.2009 1:30pm
Brett Bellmore:
Even if there were an environmental justification, to be justified it would have to be a narrowly tailored regulation that wouldn't bar people who carried guns loaded with bismuth or steel rounds.

Anyway, while I think it's wrong of the new administration to recind the rule change, I'm quite clear about the old administration having deliberately waited until the last minute to make a change they could have made at any time in the last 8 years. They deliberately waited because they didn't really want concealed carry in parks.

While the Bush administration has been better than, say, the Clinton administration, it's a bit of a stretch to call it a "pro" gun administration. Less anti-gun than the usual, really. But waiting to take a pro-gun action until it would be predictably blocked by the next administration is right in keeping with Bush's style on the subject.
3.24.2009 1:42pm
SirBillsalot (mail):
The sad thing is that this kind of misuse and abuse of process seems to be par for the course in environmental law generally. Overly complex administrative law is routinely twisted to promote the interests of NIMBYs and other special interests by tying every decision up in years of red tape, hearings, notice and comment, and inter and intra agency bickering among mostly unelected bureaucrats, lobbyists, lawyers and judges. Arbitrary and capricious indeed!
3.24.2009 2:51pm
A.S.:
Why no mention of Heller in the opinion?

The opinion begins: "Approximately 25 years ago, the Department of the Interior implemented regulations that
generally prohibited possession of firearms in national parks unless they were 'packed, cased or
stored in a manner that [would] prevent their ready use.'"

If the current regulations are struck down and those old regulations go back in place, I would think that there is at least an argument that Heller's principles could apply.

Is this simply not an issue at this stageg of the litigation? Why not?
3.24.2009 3:02pm
Dan Hamilton:
This again demonstrates that for any left-wing organizations any excuse is effective in getting standing.

Just as almost nothing can get a right-wing organization standing. Case in point, the hoops Heller had to go through to get standing.
3.24.2009 3:09pm
SirBillsalot (mail):
Re: Heller. If I were arguing for a gun ban, I'd argue that Heller only protects the right to have a gun in one's home. Heller doesn't require DC to permit concealed or open carry outside the home (though it ought to, in my opinion).

But what if you are camping in a park? Is your tent your home?
3.24.2009 3:29pm
Bill Kilgore:
Section B of the majority opinion, particularly the final paragraph of page 35, is shockingly poor analysis. As a general matter, I find that when a Court puts forth a particular standard and then ignores it completely, there is a problem. To be fair, I do find the unsupported conclusory statement as to the irreparable injury at the top of page 36 to be cute. I would find it even cuter were it authored by an undergrad as opposed to a District Court Judge.

With respect to standing, while I appreciate the Court's desire to eliminate it (which the Court's analysis would do in practice) it strikes me that there might be a better way to go about doing that than completely changing the notion of injury between sections C and E. Not only would a consistent interpretation of injury be appreciated by those who have to contemplate standing, it would avoid the appearance of a Court who simply finds injury to those they agree with, and denies it to those with whom they disagree.

In any case, the notion that the carrying of an inanimate object constitutes irreparable injury to the environment based on the fear of those within that environment, is a rather frightening new approach from the Petitioners in this matter. Can anyone speculate as to how the Appeals Court will handle this one?
3.24.2009 4:07pm
Bill Kilgore:
The word majority in my first sentence is misplaced. For additional corrections however, I will need someone's billing address.
3.24.2009 4:10pm
Kirk:
SirBillsalot,

Yes, it is; and many states (even that g*dawful Brady favorite, California) explicitly recognize this in their laws.
3.24.2009 4:12pm
Abandon:
What, you mean I can't bring my pistol to a national park to get rid of my in-laws incognito? I'm running out of options now...
3.24.2009 4:41pm
pintler:

What, you mean I can't bring my pistol to a national park to get rid of my in-laws incognito?


Of course you can - neither the legality or practicality of that hasn't been affected one way or the other by this policy :-).

It does mean you can't bring it to a national park to protect your wife and kids, though :-(.
3.24.2009 6:54pm
Kirk:
Abandon,

You have no idea how many crimes are thwarted when would-be murderers find out that carrying a handgun somewhere is a status offense.
3.24.2009 7:14pm
therut (mail):
Only a lawyer, politician or Judge could think a ruling like this needs an environmental impact study with a straight face. You are laughing? Right? Good grief have people in high places in the country lost ALL common sense!!
3.24.2009 10:56pm
Clayton E. Cramer (mail) (www):

Re: Heller. If I were arguing for a gun ban, I'd argue that Heller only protects the right to have a gun in one's home. Heller doesn't require DC to permit concealed or open carry outside the home (though it ought to, in my opinion).
The Heller decision is indeed focused on the question of possession of a handgun in one's home, but it is pretty clear that "right to keep and bear arms" opens up other possibilities. The historical evidence that non-slave Americans in 1789 were allowed to carry arms anywhere (with a few exceptions, such as sitting legislatures) is overwhelming. In the case of a national park, there is a strong case that this decision to recognize the laws of the surrounding state is actually too restrictive.
3.25.2009 11:07am
Dave R (mail):
At some point rigorous adherence to regulations produces ridiculous results. Licensed concealed carry holders are more law-abiding than the general populace, and shots fired in self defense are extremely rare. In practice, the new rule means that a few more people will peacefully and quietly carry handguns around with them in parks, then leave normally; where's the environmental impact in that? Once every few years somebody may defend themselves against a predator; the environmental impact there is that a natural predator may get shot while it still does the victim some good, instead of getting its lunch then getting hunted down by rangers shortly thereafter. Net effect is negligible. Lastly, the infamous lead ammunition is not uranium or kryptonite. People already eat game harvested with lead ammo with no ill effects, and park rangers traditionally used lead ammo themselves. Net impact of civilians carrying lead ammo is not measurable.

The blogger may be correct that the Bush admin spiked this by not getting their ducks in a row, but I think taking the claims of the environmental impact crowd seriously and developing good policy are mutually exclusive goals on this issue.
3.25.2009 2:23pm

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