Killing the Bush Midnight Regulations: A Litigation Strategy?

A new way to combat Bush’s last-minute attempts to despoil the environment?

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.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.