Tuesday, December 9, 2008

Interior Adopts Final Rule Removing Congressional Veto

In another Midnight Regulation--see my previous posts here and here--the Interior Department on Friday issued a final rule deleting references to the Congressional emergency power to stop mining on public lands.  Interior claims that the Congressional veto is unconstitutional.  The NYT reported here.

The legislation--section 204(e) of the Federal Land Policy and Management Act of 1976, as amended--reads as follows:

(e) When the Secretary determines, or when the Committee on Natural Resources of the House of Representatives or the Committee on Energy and Natural Resources of the Senate notifies the Secretary, that an emergency situation exists and that extraordinary measures must be taken to preserve values that would otherwise be lost, the Secretary notwithstanding the provisions of subsections (c)(1) and (d) of this section, shall immediately make a withdrawal and file notice of such emergency withdrawal with both of those Committees.

(The challenged language is italicized.)

The new regulations are here.  They remove the Congressional committee-directed withdrawal provision, but they do not remove the Secretary-directed withdrawal provision (even though the Department claims it is "redundant.")

The immediate issue is whether the Department must comply with a Congressionally-directed 3-year moratorium, issued in June 2008, on uranium mining on one million acres near the Grand Canyon.  The issue is in litigation.  Here's the complaint; more resources are on plaintiff Grand Canyon Trust's web-site here.  (Many thanks to Grand Canyon Trust.)

I'll keep you updated.



Congressional Authority, Executive Authority, News, Recent Cases, Separation of Powers | Permalink

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