Monday, October 12, 2020

DuBois column: An election and its potential impact


An election and its potential impact

An important exercise in democracy will take place in November. A Presidential election that has important ramifications for grazing allotment owners, rural landowners and communities across the West. To understand why, let’s take a look at some of the things that have occurred in the last four years.

The Congressional Review Act (CRA) was passed in 1996 and signed into law by Bill Clinton. The law empowers Congress to review new federal regulations issued by government agencies and, by passing a joint resolution, to overrule the regulation. Once a rule is repealed, the CRA also prohibits the reissuing of the rule in substantially the same form or the issuing of a new rule that is substantially the same. In the first few months of the Trump Administration Congress passed thirteen joint resolutions overturning recent Obama regulations. Those of most interest to us were: One that overturned BLM planning regulations, one that overturned the department of Interior’s stream protection rule, and one that overturned restrictions on hunting in certain wildlife refuges. The overturning of the BLM planning regulations was a big win for state and local governments, who were being pushed aside by BLM.

President Trump signed various Executive Orders that benefitted ag producers and rural landowners. Trump signed an Executive Order directing a review of the “Waters of the United States” rule. The review should be conducted, says the E.O., “showing due regard for the roles of the Congress and the States under the Constitution.” The key here, of course, is how you define “Navigable Waters”, and the President was pretty specific, saying it should be defined “in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States.” There was also an E.O. on energy independence and growth that affected President Obama’s “Clean Power Plan” and that revoked seven Obama-era orders and administrative actions on Climate Change.

All of the above occurred in the early days of the Trump administration, and many action items have been pursued in the intervening time frame. More recently, under the authority of the E.O. on the Waters of the United States and the E.O. on Regulatory Reform, there have been proposals such as the following:

The Trump Administration has issued a new “Waters of the United State” rule, now referred to as the Navigable Waters Protection Rule. The new rule provides a narrower definition of those waters subject to federal control, including specific exclusions for such as ephemeral features as ditches and farm ponds. The new rule went into effect on June 22 of this year.

As recently as September 8, the U.S. Fish & Wildlife Service published draft new rules on designating critical habitat for endangered species. According to an analysis distributed by the Falen Law Offices, LLC, the proposal would bring about five positive results by: 1) allowing federal lands to be excluded from critical habitat designations 2) clearly defining when the agency must provide an exclusion analysis 3) allowing the agency to consider more than just the economic consequences of listing 4) providing that when a grazing allotment owner is properly executing a conservation plan that protects the species in question, the land will always be excluded from critical habitat designation; and 5) considering local governments and stakeholders as experts.

On July 16 of this year the Trump Administration published a final rule to modernize the implementation of the National Environmental Policy Act (NEPA). The new rule sets a two-year limit for agencies to issue environmental impact statements, sets page limits for environmental impact statements and environmental assessments, requires senior agency officials to oversee NEPA compliance, and allows applicants and contractors a greater role in preparing environmental impact statements.

I must add here that NEPA, as previously interpreted by the agencies and courts, has been one of the most wasteful environmental laws on the books and the most litigated environmental law in U.S. history.

Can the feds tell us how many NEPA documents are prepared each year? No. According to a 2014 Government Accountability Office (GAO) report, “Governmentwide data on the number and type of most NEPA analyses are not readily available, as data collection efforts vary by agency.”

Can they tell us the cost of complying with NEPA? No. As the GAO explains, “In general, we found that the agencies we reviewed do not routinely track data on the cost of completing NEPA analyses. According to CEQ officials, CEQ rarely collects data on projected or estimated costs related to complying with NEPA.”

Some agencies keep better records. The Dept. of Energy found in 2013 the average cost of an EIS for them was $2.4 million and the average cost for an EA was $301,000. The GAO also reported "that the 197 final EISs in 2012 had an average preparation time of 1,675 days, or 4.6 years."

Who knows what those numbers are today, but for sure it is a colossal waste of time and money. Anyway, how can you do a cost/benefit analysis if you don't know the cost? They have kept that hidden from us. However, the time and size requirements and limitations imposed by the new rule will certainly have an impact on costs.

Taken as a whole, the direction in policy is clear: less federal control over land, water and the economy. Now ask yourself, what direction would have been taken if Trump’s opponent in 2016 had been elected? What will the direction be if Trump’s opponent in 2020 is elected? I think you know the answers.

Until next time, be a nuisance to the devil and don’t forget to check that cinch.

Frank DuBois was the NM Secretary of Agriculture from 1988 to 2003, is the author of a blog: The Westerner ( and is the founder of The DuBois Rodeo Scholarship and The DuBois Western Heritage Foundation

This column originally appeared in the October issues of The New Mexico Stockman and The Livestock Market Digest.

1 comment:

Paul D. Butler said...

Thanks for taking the time to inform us less well read folks