Legislative and Regulatory Update
November 1999 by Staff
1. Congressional Bill Would Restrict Executive Orders. H.R.2655 would restore the Federal separation of powers by curbing Presidential use of EOs, and by repealing the War Powers Act.
2. Opposition to "Billion Dollar Land Acquisition Bills" Grows Despite Babbitt's Support. H.R.701 lacks enough support to get it to the House floor; compromise fails, and S.25 appears weak in Senate.
3. NAS Finds that Secretary Babbitt's "Revised 3809 Regulations" are Unnecessary. The National Academy of Sciences (NAS) report on the Mining Law says that existing laws are "generally effective."
4. Congressional Bills Restricting Presidential Designation of National Monuments Pending. House bill requires consultation with State officials; Senate bill requires an Environmental Impact Statement (EIS).
5. UN to Ignore National Sovereignty in Protecting Human Rights and Biodiversity. "National Sovereignty will no longer be taken into account ... [in] violations of human rights" - and in protecting biodiversity.
H.R.2655 sets out severe limits on the scope of EOs as being, in effect, only "housekeeping" within the executive branch and not having the force of law on the rest of the country, unless pursuant to the Constitution or to a specific Act of Congress, such as the 1906 Antiquities Act giving the President the power to designate National Monuments. For example, the attack by Rep. James Hansen (R-UT) on President Clinton's authority to create the 1.9-million acre Escalante-Grand Staircase National Monument in Utah is questioning the meaning and scope of the 1906 statute; whereas the attack by Rep. Helen Chenoweth (R-ID) on the President's creation of the American Heritage Rivers Initiative (AHRI) is questioning the basic authority of the Chief Executive to create the AHRI.
H.R.2655 would also repeal the Congressional War Powers Resolution (Title 50, U.S. Code§1541, et seq.), thereby terminating all power and authority possessed by the President to declare a "national emergency." In addition to repealing the War Powers Resolution, H.R.2655 terminates all present outstanding declarations of National Emergency, and expressly provides that " ... the power to declare a national emergency ...is hereby divested to the Congress alone."
There are a few limited exceptions to H.R.2655's clarification of the restrictions of executive power—notably: The issuance of a pardon for a Federal offense; giving orders to the military as Commander in Chief of the Armed Forces; and other actions authorized by the Constitution or by a Congressional enactment.
In 1926, Supreme Court Justice Brandeis commented on the separation of powers, stating:
"The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction ... among three departments, to save the people from autocracy."
Another requirement of H.R.2655 is that the President is required to include in each EO a statement of the specific statutory or Constitutional authority that grants the President the authority claimed—and if this statement of authority is not included, then the EO is invalid.
Some notable examples of recent aggressive uses of Executive Orders and Executive Action by the current President and his Department Heads are the President's creation of the 1.9-million acre Escalante National Monument, the creation of the AHRI, Secretary Babbit's 1999 revival of the 1992 program to designate "National Natural Landmarks," the notorious "Federalism EO 13083" announced in Birmingham, England in May 1997, and its successor, EO-13132, issued in August 1999.
Also included in the H.R.2655 definition of "Executive Action" subject to the law would be the promulgation of Regulations and Policies of the Executive Departments "and their employees"—such as Secretary Babbit's Revised 3809 Regulations, and the EPA's definitions of "soot and particulates" that is the subject of a pending U.S. Court of Appeals case in American Trucking Association v. EPA where the Court invalidated some of the regulations and remanded (returned) the matter back to the EPA for further action.
The H.R.2655 restrictions on EOs are not really "new law," because they merely clarify the existing law and Constitutional restrictions on the President and the Executive Branch. Let your members of Congress know your views on H.R.2655.
2. Opposition to "Billion Dollar Land Acquisition Bills" Grows Despite Babbitt's Support. Rep. Don Young (R-Alaska) and some House Resources Committee members are attempting to work out a compromise on the scope and wording of H.R. 701. Rep. George Miller (D-CA) is pushing his bill, H.R. 798, providing even more money for the "Federal Land Acquisition Program." Interior Secretary Babbitt is working with Reps. Young and Miller in an effort to come up with a compromise House bill that would be sent to the House floor for action and a possible vote.
In the Senate, Committee work on S-25, the companion bill to H.R. 701, is minimal. It is doubtful that S.25 will be "marked up" or referred to the Senate floor this year, particularly considering the budget, taxes; health care and the other pressing issues slated to take up the Senate's time.
A majority of Republicans on both the House and Senate Committees are opposed to these bills and to the idea of an off-budget item on the order of the $1-billion annual entitlement for land acquisition. The opposition to these bills is strong, being led by grassroots and property-rights groups with the American Land Rights Association leading the opposition. Opponents strongly object to taking land out of private ownership on such a massive scale, and argue that doing so would destroy economic activity, destroy local tax bases, harm the environment, and undermine our system of limited government. Opponents point out that the Federal government already owns and controls about 30% of this nation's land, and about two-thirds of it is in the Western U.S.
The future of S.25/H.R.701 is uncertain. However, strange things happen with the pressures ofthe end-of-session budget deals and impending massive "Omnibus Appropriations Bill."
3. NAS Finds that Secretary Babbit's "Revised 3809 Regulations" are Unnecessary. The National Academy of Sciences (NAS) report on the U.S. mining law was released in September, and the Academy concluded that the current structure and existing regulations are working effectively. This study was requested by the Western Governors Association when Secretary Babbitt failed to respond to the Governors' inquiries as to why any new BLM Surface Management Regulations were necessary.
The NAS report said that the current structure of State and Federal laws and regulations effectively considers geographical differences and site-specific environmental factors.
The Academy specifically pointed out that the National Environmental Policy Act (NEPA) process was essential to the managing agencies, primarily the Forest Service and the Bureau of Land Management (BLM), but that incomplete and delayed action by the agencies hampered the process of decision making.
NAS identified a few areas where changes and improvements were needed, but not enough to justify the proposed revision of the "Subpart 3809 Surface Management Regulations."
In commenting on the Academy report, the National Mining Association (NMA) stated that the BLM has failed to make a case for the wholesale revision of the 3809 Regulations, and that the NMA was looking forward to working with the professionals at the Forest Service and the BLM to implement reasonable changes. The NMA concluded that:
"The NAS Report tells us that the politicized Department of the Interior needs to get its house in order rather than undertake an unnecessary, costly and burdensome regulatory initiative. It is useless to duplicate what the states are already doing more efficiently and effectively than the federal government...Over the last four years, the hardrock mining industry has paid to the federal government $130-million in fees that are supposed to be used to administer the Mining Law. The General Accounting Office is currently auditing the Mining Law program in order to find out where the funding should be directed ... [and the funding] should not be used to add duplicative regulations."
Meanwhile, we shall soon hear from Interior Secretary Bruce Babbitt on his handling of the "BLM Revised 3809 Surface Management Regulations. "
4. Congressional Bills Restricting Presidential Designation of National Monuments Pending. Bills have been introduced in both Houses of Congress to restrain Presidential designations of National Monuments. The prime moving force behind these bills is President Clinton's 1996 pre-election designation of the 1.9 million acre Escalante National Monument in Utah. A Congressional Committee investigation, following that Utah designation, revealed that the designation of the Utah National Monument was strictly political; but, Congress took no action to void the designation.
The House Bill (H.R.1487), restraining Monument designations, originally required an Environmental Impact Statement (EIS), but that requirement was negotiated out of the compromise bill as passed by the House Resources Committee, and the bill may be subject to further compromises. H.R.1487 now requires the President to "solicit public participation and comment" and to consult with State officials at least 60 days before any National Monument designation.
Senate Bill (S.729), introduced by Senator Larry Craig (R- ID), requires an Environmental Impact Statement (EIS). If these bills pass in Congress, and are reconciled in a bipartisan Senate/House Conference Committee, the final bill will, of course, be subject to Presidential veto. "
There are several new National Monument designations waiting in the wings, including the Shivwits Plateau in Arizona, the Santa Rosa/San Jacinto Mountains in California, and several others throughout the West. The future of the restrictions on Presidential authority under the 1906 Antiquities Act to designate National Monuments is uncertain—but, at least all of the parties know that they are under much more scrutiny by Congress, and by the public on this matter, than just a few years ago.
5. UN to Ignore National Sovereignty in protecting Human Rights and Biodiversity. In September at the opening of the United Nations General Assembly, Secretary-General Kofi Annan stated that "...traditional considerations of national sovereignty will no longer be taken into account," and that "massive and systematic violations of human rights, wherever they take place, should not be allowed to stand."
Secretary-General Annan was referring primarily to the UN's actions in Kosovo and in East Timor. However, it is the position of the UN that "biodiversity destruction" is defined by the UN as a "violation of human rights," which could lead to some very serious questions involving national sovereignty.
ConclusionThe budget, as usual, is occupying much of the time in the Halls of Congress, along with political posturing on all sides in preparation for next year's important election.
It is more important than ever to keep members of Congress fully aware of our views, particularly on the important issues of property rights and sovereignty legislation
that are active now. Several bills would limit the growing power of the Executive Branch by restricting the President's power to designate National Monuments, and by restricting or "clarifying" the power of the President and the Executive Branch. Our members of Congress would be interested in your views on these matters.
Direct your letters, calls and faxes to both the local and Washington offices of your members of Congress.
Their addresses and telephone numbers are as follows:
Senator (fill in the blank)
Washington, D.C. 20510
Representative (fill in the blank)
U.S. House of Representatives
Washington, D.C. 20515
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