A pair of lawsuits are demanding that the courts force the federal government to comply with a 1996 law that forces agencies to defend their own rules.
Pacific Legal Foundation (PLF) filed the lawsuits asking the courts to force agencies to comply with the Congressional Review Act (CRA), a statute that Congress and President Bill Clinton approved in 1996 with the goal of restoring at least some degree of democratic accountability to the administrative state.
"Congress recognized that there was a problem of agencies having too much power and imposing rules on Americans across the country without any scrutiny from any of the people we elected to govern," says PLF attorney Jonathan.
"So the Congressional Review Act," he continues, "requires every new rule a bureaucrat wants to impose on you to first be submitted to Congress, where elected representatives have a chance to review it. And if they disapprove of the rule, to take the step of actually voiding it and preventing similar rules from being adopted in the future."
According to Wood, agencies have been terribly spotty in complying with the Congressional Review Act.
"Some agencies have faithfully submitted their rules to Congress for review. Others haven't done a very good job," he explains. "This is a problem that the White House and Congress have both warned agencies about, including last year when there was a hearing in the House. This is a really serious problem that the agencies need to get ahead of."
One of PLF's challenges involves controversial Sage Grouse Rules from the Departments of Interior and Agriculture in 2015. While the goal of the rules is to protect birds, PLF says the rules undermine widely supported state-led conservation efforts at the expense of those who rely on federal lands for their livelihoods.
The second of PLF's two challenges has to do with the PECE Rule from the Fish and Wildlife Service in 2003. PLF is representing a conservation group that has a plan to protect the Lesser Prairie Chicken, which is considered a "threatened" species.
"But that plan depends on the incentives created by a rule by the U.S. Fish and Wildlife Service," he says. "The problem is that rule was never submitted to Congress and therefore can't be relied upon, which puts our clients in the impossible position of needing to do conservation but the service is undermining their efforts by having this rule in place that is not lawfully in effect and can't be relied upon."
The bottom line, Wood says, is the lawsuits would not be necessary if government, in this case agencies, did what they're told: follow the law.