The messy wolf issue is now getting messier, thanks to Rep. Mike Simpson (R-ID) in the House and Sen. Jon Tester (D-MT) in the Senate. In the “continuing resolution” needed to avoid a shutdown of the U.S. government, the two Congressmen have inserted language that would essentially de-list wolves from being covered under the Endangered Species Act in Idaho and Montana. Recall that a federal judge in Montana had ruled that the wolves must remain on the endangered list due to Wyoming’s failure to submit an approved management plan because the species must be considered one population and managed accordingly.
Regardless of how people feel about delisting wolves, however, the manner by which the Congressmen are attempting the delisting raises serious legal questions about how a federal government with separate branches of government is supposed to work.
The obscurely worded text of the proposed Senate provision (the House version is identical) is here:
“SEC. 1709. Before the end of the 60-day period beginning on the date of enactment of this division, the Secretary of the Interior shall reissue the final rule published on April 2, 2009 (74 Fed. Reg. 15123 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule. Such re-issuance (including this section) shall not be subject to judicial review.”
Under our Constitution, the executive branch, the legislative branch, and the judicial branch are separate, with well-known “checks and balances” on each other. This legislative provision, however, certainly usurps a lot of executive and judicial power.
The executive branch of government is charged with implementing the nation’s laws, and as part of doing so, agencies issue regulations to administer programs. Here, however, Congress is telling which regulation to issue, and when, and regardless whether the regulations comport with existing law — in this case the Endangered Species Act.
Meanwhile, the judicial branch of government is charged with interpreting the laws as applied in appropriate cases brought before a court. Here, Congress is eliminating any such jurisdiction of a Court to do so.
All of this is a complex area of federal jurisdiction and administrative law and would make for a great law school final exam question. In a strictly legal sense, Congress, arguably, can probably get away with what it intends to do here. Unless the president vetoes the entire continuing resolution — his “check” on this exercise of Congressional power in this instance — a provision like the one proposed will be the law of the land.
Ultimately, what this means is that the functional integrity of Endangered Species Act no longer exists. Rather than science, management of endangered species will be left to Congress, to legislate by loophole. This would be an unfortunate outcome beyond the wolves who will be “managed.” We hope during the next week or two of intensive debate, Congress will consider the consequences of this ad hoc loophole approach to governance.
UPDATE 3/7: The folks at NRDC point out that as the Senate takes up the continuing resolution, they have deleted all of the anti-environmental riders attached by the House of Representatives. Except one. This one.
UPDATE 4/10: The deal to avoid the dreaded government shutdown apparently still includes the rider.
UPDATE 4/12: The rider goes even further — it folds in a Wyoming court case too. This post from NRDC sums up the reasons why this rider is just plain bad government.