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You are here: Home / Energy & The Environment / Killing the Bush Midnight Regulations: A Litigation Strategy?

Killing the Bush Midnight Regulations: A Litigation Strategy?

December 30, 2008 By Jonathan Zasloff

The AP reports, “California is suing the Bush administration to block last-minute endangered species regulations that are intended to reduce input from federal scientists, state Attorney General Jerry Brown announced Tuesday.”

I’m wondering whether such a lawsuit represents a creative way to overturn Bush’s midnight attempt at further environmental destruction and special interest giveaways.

Many observers have proposed using the Congressional Review Act, and that could work, too, but that could depend upon Congressional spine, and thus us doubtful.

With California’s lawsuit, however, the Obama DOJ could get rid of the problem by settling the lawsuit through an agreement to remove the regulations. California wouldn’t have to win the lawsuit, and the Administration wouldn’t have to go through the extended notice-and-comment process.

The problem with this strategy is that it is too clever by half: future Republican administrations could simply resort to similar tactic (enforce the regulation, have the polluter challenge it, and then settle by withdrawal.). But since the Republicans have already shown that they don’t respect good faith and fair dealing, there is little downside.

Experts in administrative law are welcome to comment as to the limits of such a strategy: surely an administration can’t get rid of a duly-enacted regulation simply by settling a lawsuit to get rid of it.

Filed Under: Energy & The Environment Tagged With: Corruption in Washington, Law Notes

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