Oregonian Article: Is it Really About Possible Challenges to the 2012 Planning Rule?

Back to Steve’s post on the Loper/Chevron decision.  It sounds in the first few paragraphs as if the reporter is talking about the NWFP revision, but a careful read of what people said:

But Oregon environmental advocates say those rules, among many others issued by federal regulatory agencies, could now come under threat. The Supreme Court late last month overturned what’s known as the Chevron decision, a longstanding precedent that lower federal courts should defer to agencies — staffed by experts — on “reasonable” rule changes to enforce legislation.

The ruling effectively means federal regulators will have a harder time defending those rule changes in court. It could also make existing rules easier to challenge.

If I read carefully, I think the environmental advocates (wish reporters would give names..) are questioning whether someone could litigate the 2012 Rule itself.  But it’s been 12 years and no one’s litigated it so far.  Still, if the NW Forest Plan Amendments’ new decisions are unpopular in some quarters, maybe these two decisions (Loper and Corner Post) might work together such that someone could litigate the 2012 Rule itself.  I’m thinking that it could be argued that folks in the NW weren’t affected (Corner Post) by the 2012 Rule until the time NWFP was amended under it.

Going back to the article, speaking of Corner Post, Professor Rohlf said:

 previously, there was a six-year statute of limitations for challenging federal regulation, beginning when the regulation was implemented. But now, the six-year clock starts when the regulation begins to affect the entity mounting the challenge.

On the other hand,  the Loper decision is expressly proactive:

The Court did “not call into question prior cases that relied on the Chevron framework.  The holdings of those cases that specific agency actions are lawful—in­cluding the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology . . . Mere reliance on Chevron cannot constitute a ‘special justification’ for overruling such a holding, because to say a precedent relied on Chev­ron is, at best, ‘just an argument that the precedent was wrongly decided.’”[12]

But as far as I know, the 2012 Rule has not been litigated at all, so perhaps the idea that the change is not retroactive is not applicable? Also, I think many media reports have been unclear about the prospective nature of the Loper decision.

I’m hoping our lawyer friends will shed more light on this.

I asked Andy Geissler of AFRC, as they are known to keep up with these issues.  Here’s his response:

The Oregonian article referenced in Steve’s post is, I believe, referring to the ongoing effort by the Forest Service to amend the northwest forest plan.  The Oregonian mischaracterizes this process by stating that the Forest Service is “updating those rules.”  This is a bit inaccurate.  The Forest Service isn’t updating any “rules”, they are Amending their Plan.  I imagine that, among those amendments, will be some new and/or modified standards and guidelines; but that is not the same as formal Rulemaking.

This may sound nitpicky, as standards & guidelines could be described and interpreted as “rules” in plain English, but in the context of the recent Supreme Court decision, there is an important distinction between formal Rulemaking and, in this case, completing a Plan Amendment.  For example, the Bureau of Land Management recently published its Public Lands Rule on conservation and land health.  This Rule did not formally Amend any specific Land Management Plan.  However, it does include direction to pursue such Amendments pursuant to the new Rule.  The Chevron case applies to how agencies interpret statutes when they conduct Rulemaking.  So, any challenges to the BLM’s Public Lands Rule could be affected by the Chevron decision as the BLM is interpreting statutes that the Rule complies with.

The Oregonian article also describes that “Oregon environmental advocates say those rules….could now come under threat” in the wake of the Chevron decision by the Supreme Court.  This statement is also a bit misleading–mainly because the Oregonian mischaracterized the Plan Amendment as a rule.  The current Amendment, if and when finalized, can certainly be challenged in court.  How such a challenge is brought by litigants or how judges may consider the challenge should not be affected by the recent Supreme Court decision since this is an Amendment, not a formal Rule.

If my thinking is correct, we may have a chance to trot out Andy’s KISS Rule for another round of rule-making! Or would a formal lessons-learned, similar to the Prescribed Fire stand-down and review be in the cards this time? I would hope so.  Judges may go back and forth, but they are not responsible for asking if the process is useful or well-fitted to the task at hand, or worth the investment of financial and human resources by the public, the agency and interest groups.