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rule is repealed, the CRA also prohibits the reissuing of the rule in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 (www.thewesterner.blogspot.com)
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:
Thanks for taking the time to inform us less well read folks
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