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The Trump Administration’s Regulatory Agenda is Taking Shape

August 14, 2017

The Trump administration is placing a great deal of emphasis on its regulatory reform agenda largely through the issuance of multiple Executive Orders (EOs), use of the Congressional Review Act (CRA), and partial implementation of proposed cuts to agency budgets across all sectors of the economy. The administration has also made effective use of selective treatment of the litigation portfolio it inherited from its predecessor.

While still in a formative state, the Trump administration is having success persuading courts to temporarily freeze ongoing litigation to better assess its long-term options. But with the willingness of the judicial branch to analyze promptly indefinite requests to freeze or administratively stay challenged regulations, the administration will have to unwind these regulations though the lengthy rulemaking process.

This article reviews the Trump administration’s use of the CRA and EOs to achieve its regulatory goals, followed by an examination, with examples from previous administrations, of the litigation options available to the new administration for reaching its policy objectives.

Regulatory Options

Congressional Review Act. Prior to 2017, the CRA had been used only once to repeal regulations since its passage in 1996. Congress’s concerted effort to use the CRA to overturn several regulations promulgated in the waning days of the Obama administration has consequently drawn considerable attention.[1] To date, Congress has passed fourteen resolutions of disapproval with President Trump signing all fourteen[2], including repeal of the Department of the Interior’s (Interior) Stream Protection Rule[3], Alaska Refuges Rule[4] and the Bureau of Land Management’s (BLM) Planning 2.0 Rule.[5]

Much of the current debate over the CRA has focused on the expansive reach of the statute’s key “substantially similar” provision. This language prohibits the agency from issuing a new rule at any time that is “substantially similar” without subsequent Congressional action.[6] Repeal of BLM’s Planning 2.0 provides an interesting test case for exploring the potential scope of the CRA.

BLM’s rule fundamentally changed its longstanding approach to land use planning by codifying the “landscape-scale” planning concept, which permitted the agency to develop land use plans at a broad level beyond traditional state or local boundaries. Congress’s repeal was in large measure a response to the concern of Western states and local communities that the “landscape-scale” concept would dilute their input in future BLM planning efforts.

The repeal poses some interesting questions for BLM: (1) Does the CRA vote prohibit a future planning rule that permits the agency to plan beyond a state or local level? (2) Does the “substantially similar” provision prohibit BLM from incorporating the “landscape-scale” concept (or any other material provision of Planning 2.0) into future land use plans? and (3) Does Congress’s action require the agency to undertake a review of individual planning efforts that served as blueprints for this “landscape-scale” planning concept? In short, repeal of Planning 2.0 may have significant ripple effects on land use planning in the West for many years to come.

Recognizing this expansive reach, an environmental group challenged the application of the “substantially similar” provision to the Alaska Refuges Rule claiming it violates the separation of powers “that must be maintained between the legislative and executive branches under the U.S. Constitution.”[7] The lawsuit faces long odds, given the federal courts’ deference to acts of Congress, but much attention will be paid to the challenge as it may better define the scope of a key provision of the CRA.

Executive Orders. Soon after his Inauguration, President Trump issued EO 13771,[8] directing agencies to streamline the regulatory process and eliminate duplicative or unnecessary regulations unless doing so is “prohibited by law.”[9] The EO is well known for its “2-for-1” provision requiring an agency to identify “at least two existing regulations to be repealed” whenever it proposes a new regulation.[10] Some industries have welcomed the provision because it could lead to the elimination of duplicative regulations both within and across agencies.[11]

The President’s EO was immediately challenged by environmental and public interest groups contending the Constitution does not permit such a “regulatory trading” program amongst federal agencies.[12] In response, the administration requested dismissal for a lack of Article III standing for a variety of reasons, including an argument that the plaintiffs’ challenge is premature and fails to demonstrate a concrete injury.[13] This is especially true, the government argues, because agencies are permitted to identify rules for repeal or revision from a different agency to meet the regulatory offset objective; thus, plaintiffs cannot pinpoint a specific regulation that has caused their members the requisite level of harm.

This was just the beginning of President Trump’s regulatory agenda by EO.[14] The President also issued an energy-focused EO in late March instructing the review of certain regulations and publication “as soon as practicable” of new proposed rules “suspending, revising, or rescinding” any old rules that “potentially burden the development or use of domestically produced energy resources.”[15]

In conjunction with the President’s EO, Interior Secretary Zinke issued a Secretarial Order (SO) the next day (SO3349) directing implementation of the President’s EO, such as by revoking an Obama administration Interior Department SO (SO 3330) instructing BLM and other agencies to develop and implement a landscape-scale mitigation policy.[16] As part of that revocation, Secretary Zinke’s SO importantly directs a review of “all existing regulations, orders, guidance documents,” and any other similar actions “related to or arising from” these mitigation actions, and “to the extent deemed necessary and permitted by law, initiate an appropriate process to suspend, revise, or rescind any such actions.”[17] This mitigation review casts a fairly wide net.

One example of the natural outgrowth of this mitigation review is Secretary Zinke’s SO on sage-grouse management that requires a review of the multi-state federal sage-grouse plans.[18] These federal sage-grouse plans adopted by BLM in 2015 relied in large part on SO 3330 to impose a range-wide mitigation standard that is at odds with Secretary Zinke’s SO 3349.[19] As of the writing of this newsletter, Secretary Zinke’s review team recently provided several short- and long-term recommendations to the Secretary to more closely align the federal plans with state-based solutions, including but not limited to, analyzing this critical mitigation issue.[20]

The long-term cumulative and practical impact of these EOs is unknown, especially if there is potential for cross-pollination between different agencies to fulfill the 2-for-1 objective. At a minimum, these EOs are playing a key role in the litigation context described below.


Another key aspect to President Trump’s regulatory reform agenda is how the administration is addressing the litigation portfolio it inherited from its predecessor. New administrations will review pending litigation and determine if the challenged regulation squares with its legal or policy positions. Courts have recognized the nexus between an election and a potential shift in litigation position, as evidenced by the late Chief Justice Rehnquist’s concurrence in a challenge to a Department of Transportation safety regulation. The Chief Justice there wrote “[a] change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency’s reappraisal of the costs and benefits of its programs and regulations.”[21] Notwithstanding the latitude to change course,[22] stakeholder groups have vigorously opposed in court (and in the court of public opinion) the practice of switching sides in litigation or reaching settlement agreements without public input.[23]

Because of this likely opposition, agencies and parties should carefully assess their options for policy reappraisal through litigation. Generally, new administrations first seek to put cases in abeyance (or freeze the matter) to provide an opportunity to reassess, and then determine whether to negotiate a consent decree or seek voluntary dismissal of the action to permanently resolve the litigation. There are some instances, as described below, where a new administration may simply decline to defend the litigation and focus its limited resources on the rulemaking process (passive defense). Finally, EPA Administrator Pruitt exercised another option with the agency’s 2016 methane rule for new oil and gas infrastructure, to administratively stay all or portions of a finalized regulation that is currently under judicial review. There are some limits under the Administrative Procedure Act (APA) to that approach,[24] as illustrated by the D.C. Circuit’s recent holding that EPA could not administratively stay portions of the methane rule while the agency reconsiders the regulation. [25]

The remainder of this article reviews the abeyance, consent decree and passive defense litigation options in further detail. While it is too early to assess consent decrees or other permanent litigation options at this point in the administration, the article offers some examples from previous administrations to illustrate potential long-term implications of these litigation choices.

Abeyance. Courts have been generally willing to grant abeyance requests at least temporarily;[26] the most notable example being the lawsuit against the EPA’s Clean Power Plan where the D.C. Circuit has now twice provided the administration with 60-day stays of the litigation.[27] Doing so is often in the interest of the courts because they cannot issue “advisory opinions” (nonbinding interpretations of the law) under the case-or-controversy requirement of Article III of the U.S. Constitution. In other words, if the Trump administration is now aligned with the plaintiffs, then there may be no case or controversy to adjudicate. What is unclear, however, is whether courts will hold these cases in long-term abeyance. The D.C. Circuit is currently considering that very issue with regard to the Clean Power Plan.[28]

Interior’s Hydraulic Fracturing Rule (Fracking Rule) serves as a helpful case study of this issue.[29] BLM published the Fracking Rule in March 2015.[30] A coalition of states and industry successfully challenged BLM’s authority to implement the rule under FLPMA and other relevant statutes after filing suit in the Wyoming federal district court. President Obama’s Interior Department and some environmental groups subsequently appealed to the Tenth Circuit, which scheduled oral argument for March 22, 2017.[31]

The Tenth Circuit ordered BLM in early March to confirm whether its position in this case has changed due to the election.[32] In response, the Trump administration asked the court to continue oral argument and hold the case in abeyance pending a new rulemaking based on BLM’s position that the Fracking Rule is inconsistent with EO 13771. The Tenth Circuit ordered supplemental briefing to address the appropriateness of longer-term abeyance.[33] The Trump administration’s supplemental briefing importantly did not confess error on the question of whether the agency had the authority to promulgate the Fracking Rule. Instead BLM couched its request in terms of the agency’s broad discretion to make a different policy decision.[34] Most recently, the Tenth Circuit held oral argument on whether to hold the case in abeyance indefinitely or issue an opinion on the merits of the case against the backdrop of the Trump administration publishing a proposed rule announcing its intention to rescind the Fracking Rule.[35]

There are a few points to highlight from the Fracking Rule dispute. First, BLM’s response highlights the Trump administration’s ongoing reliance on EOs to serve as a policy platform for approaching the judiciary with requests for abeyance. Second, the administration’s decision to avoid confessing error may offer some insight into other cases where industry (or in some cases state) plaintiffs have questioned an agency’s authority to promulgate all or certain provisions of a regulation. Third, not confessing error as to the question of BLM’s legal authority may prevent other interested parties from advancing the litigation in ways contrary to the administration’s position. Finally, and like the D.C. Circuit’s decision to reject EPA’s stay of the methane rule, courts are willing to review the administration’s policy reappraisals in real-time and will ensure that agencies comply with the APA.[36]

Consent Decrees. Consent decrees[37] offer a permanent vehicle for the agency to reconsider a rule and also save the parties and the court time and resources. Moreover, a consent decree, unlike a pure settlement, involves direct court involvement providing the litigating party a strategic tool for ensuring that the agency keeps its commitments. This is particularly important as new administrations are in the process of setting regulatory agendas and nominating key positions. Finally, having time commitments enforceable by court order also limits the amount of time the challenged rule is in place during the pendency of the rulemaking.

Consent decrees are not free from potential challenge. First, consent decrees take time to negotiate and that time might be better spent getting the rulemaking process underway. Second, parties can challenge court approval of a consent decree and a proposed order of dismissal.[38] Third, the most difficult issue for the negotiating parties is what regulatory framework governs in the interim, including whether to vacate or suspend implementation of the challenged regulation.[39] The tension arises because, while the litigating party and the new administration do not want the regulation implemented during an oftentimes lengthy reconsideration process, some courts are skeptical of consent decrees that permanently and substantially amend a rule without public involvement, especially where there has been no judicial finding on the merits.[40]

To illustrate this tension, in the waning days of the Clinton administration, the Forest Service promulgated a rule that largely prohibited all roadbuilding and timber harvest across some 58 million acres of designated roadless areas, including those areas in the Tongass National Forest in Alaska.[41] Confronted with the State of Alaska’s challenge to this rule, the George W. Bush (Bush) administration decided to settle the case and opted for a process-based solution during the pendency of a new rulemaking. Rather than vacating the 2001 Roadless Rule as it applied to the National Forests in Alaska, which surely would have been vigorously challenged by environmental groups, the Forest Service committed to a date by which it would develop an interim solution to address Alaska’s issues.[42]

Passive Defense. Given some of the challenges associated with consent decrees or voluntary dismissal, the Trump administration may decline to defend litigation that it inherited from the Obama administration. One likely result would be for opponents of that strategy to ask the court to allow them to “step in the shoes” of the federal government and continue the defense of the challenged regulation.

For example, as noted above, Bush’s Forest Service declined to defend the 2001 Roadless Rule against multiple state and industry lawsuits, and instead proposed a new State Petitions Rule permitting state governors to petition for federal approval of state-specific management approaches to roadless areas within their borders.[43] The Ninth Circuit permitted environmental groups to defend the embattled rule that led to overturning a district court’s preliminary injunction because it deemed them to have demonstrated Article III standing.[44] This concern could partially explain why the Trump administration maintained the option to defend BLM’s authority to promulgate the Fracking Rule, as noted above.[45]

Another interesting example of “passive defense” is the fate of the Clinton administration’s rule amending hard rock mining regulations on public lands. That rule replaced the 1980s “prudent operator” definition for the “substantial irreparable harm” (SIH) standard.[46] This change in course was not the product of a stipulated agreement or BLM’s request for voluntary remand per se. In that case industry lawsuits and the concern of Western states formed the basis for Interior’s shift in direction, both in the short- and long-term.[47] President Bush’s Interior Department immediately published notice that it was suspending the Clinton administration’s regulations[48], and, in October 2001, Interior issued revised regulations removing the SIH standard while maintaining other provisions in the Clinton administration rule.[49]


Multiple regulations promulgated in the waning days of the Obama administration have been targeted (or eliminated) for revision or rescission through EOs and the CRA. While the courts have afforded the Trump administration opportunities to reassess their legal and policy positions at least in the short-term, it remains to be seen how the courts will treat the multiple requests for indefinite stays while the administration rescinds or revises these rules through the APA rulemaking process. The courts’ treatment of these long-term requests, and by extension whether these rules remain in effect during the pendency of the amendatory rulemaking process, may shape the administration’s perspective on the use of consent decrees and voluntary dismissals as a strategy for providing parties interim regulatory relief from these challenged regulations.

Further, the D.C. and Tenth Circuits’ willingness to evaluate these interim steps in real-time, could influence the Trump administration’s decision to “passively defend” some of these challenged regulations and immediately direct precious agency resources to the rulemaking process. In any event, the early signal from these circuits—that permanently unwinding these rules must be done in a transparent manner—will play an important filtering role on which and how many Obama-era regulations are effectively rescinded and revised, especially as more political appointees assume their posts in the coming months.

[1] See Trumping Obama’s Interior Department, Marten Law News (Dec. 5, 2016); available at: http://www.martenlaw.com/newsletter/20161205-trumping-obamas-interior-department (last visited June 7, 2017).

[2] Some commentators believe the CRA’s notice requirement allows Congress to take action on a substantially broader set of rules than the typical “midnight regulation” issued in the waning days of the Obama administration. The CRA requires federal agencies to submit final rules to both Congress and the Government Accountability Office before they can take effect. They argue that if an agency did not properly submit a rule (which is broadly defined under the CRA) then the Trump administration could now submit these rules to Congress and provide that body with 60 legislative days to repeal the unreported rule dating as far back as the law itself. It remains to be seen whether the Republican-controlled Congress will attempt to apply the CRA in this manner. See, e.g., Skibell, Arianna, “Conservatives ponder expansion of Congressional Review Act,” E&E Daily (March 7, 2017).

[3] H.J. Resolution 38 repealing the “Stream Protection Rule,” 81 Fed. Reg. 93,066 (Dec. 20, 2016).

[4] H.J. Resolution 69 repealing the “Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska,” 81 Fed. Reg. 52,247 (Aug. 5, 2016) (Alaska Refuges Rule).

[5] H.J. Resolution 44 repealing the “Resource Management Planning” rule, 81 Fed. Reg. 89,580 (Dec. 12, 2016) (Planning 2.0). This regulation established BLM’s procedures used to prepare, revise, or amend land use plans pursuant to the Federal Land Policy and Management Act (FLPMA).

[6] 5 U.S.C. § 801(b)(2).

[7] Center for Biological Diversity v. Zinke, et al., 3:17-cv-00091-JWS (D. Alaska, filed Apr. 20, 2017).

[8] See “Reducing Regulation and Controlling Regulatory Costs,” Exec. Order 13,771 (Jan. 30, 2017). 82 Fed. Reg. 9,339 (2017).

[9] Id. § 2(a).

[10] Id. § 2(a).

[11] Id. at 18.

[12] Plaintiffs’ Memo in Support of Summary Judgment, Public Citizen, et al. v. Trump, No. 17-cv-00253-RDM, Dkt No. 16 at 12, 24-25, and 34 (citing Cty. of Santa Clara v. Trump, 2017 WL 1459081, at *9 (N.D. Cal. Apr. 25, 2017) (EO immigration case).

[13] See generally Defendants’ Memo. in Support of Motion to Dismiss, Public Citizen, et al. v. Trump, No. 17-cv-00253-RDM, Dkt No. 9-1 ( filed Apr. 10, 2017).

[14] See generally https://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders (last visited May 30, 2017).

[15] See “Promoting Energy Independence and Economic Growth,” Exec. Order 13,783 (Mar. 28, 2017); see also “American Energy Independence,” Secretarial Order No. 3349 (Dep’t of the Interior, March 29, 2017).

[16] “Improving Mitigation Policies and Practices of the Department of the Interior,” Secretarial Order No. 3330 (Dep’t of the Interior, October 31, 2013). SO 3330 was the blueprint for President Obama’s subsequent November 2015 Executive Order. See The President’s Environmental ‘Net Benefit Goal’—The White House Sets a New Approach to Mitigation, Marten Law News (Nov. 15, 2016); available at: http://www.martenlaw.com/newsletter/20151116-environmental-net-benefit-goal (last visited June 7, 2017).

[17] SO 3324, § 4.

[18] “Greater Sage-Grouse Conservation and Cooperation with Western States,” Secretarial Order No. 3353 (Dep’t of the Interior, June 7, 2017).

[19] Id. at § 4(b)(iv); see also supra n.1.

[20] Memorandum to Secretary Zinke, Response to Secretarial Order 3353, available at: https://www.doi.gov/sites/doi.gov/files/uploads/so3353_memo_coverletter_report_080717.pdf (last visited August 4, 2017).

[21] See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, J., concurring in part and dissenting in part).

[22] See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (“The APA requires only that ‘the new policy be permissible under the statute,’ and that there are good reasons for it.”).

[23] See U.S. Chamber of Commerce Report; available at: https://www.uschamber.com/sites/default/files/documents/files/SUEANDSETTLEREPORT-Final.pdf (last visited May 30, 2017).

[24] See Sierra Club v. Jackson, 833 F. Supp. 2d 11, 30 (D.D.C. 2012) (agencies must demonstrate that: the legal challenges to the regulation are likely to succeed on the merits; that there will be irreparable harm without a stay; that this harm outweighs the harm to others who would be deprived of the rule’s benefits; and that a stay serves the public interest).

[25] Clean Air Council, et al. v. Pruitt, et al., No. 17-1145 (D.C. Cir. July 3, 2017).

[26] E.g., Am. Petroleum Inst. v. EPA, 683 F.3d 382, 389 (D.C. Cir. 2012) (explaining that the court may “hold the case in abeyance pending resolution of [a] proposed rulemaking, subject to regular reports from [the agency] on its status”). Courts are also guided by the doctrine of prudential ripeness that “ensures that Article III courts make decisions only when they have to, and then, only once.” Id. at 389.

[27] See State of West Virginia v. EPA, No. 15-1363, Dkt No. 1687838 (August 8, 2017). It is worth noting that the D.C. Circuit recently granted the Trump administration’s request for indefinite stay in the litigation over the Obama-era climate rule for new power plants, see State of North Dakota v. EPA, No. 15-1381, Dkt No. 1688176 (August 10, 2017).

[28] State of West Virginia, et al. v. EPA, No. 15-1363, Dkt No. 1673071 (D.C. Cir., Apr. 28, 2017).

[29] State of Wyoming, et al. v. Zinke, et al., Case Nos. 16-8068, 16-8069 (10th Cir.).

[30] 80 Fed. Reg. 16,128 (Mar. 26, 2015).

[31] See Intervenor-Respondent-Appellants’ Preliminary Response in Opp. to Fed. Appellants’ Motion to Continue Argument and Hold Case in Abeyance, State of Wyoming, Case Nos. 16-8068, 16-8069, Dkt No. 01019780220, at 6 (10th Cir., Mar. 15, 2017).

[32] See Federal Appellants’ Motion to Continue Argument and Hold Case in Abeyance Pending Administrative Action, State of Wyoming, Case Nos. 16-8068, 16-8069, Dkt No. 01019780139 (10th Cir., Mar. 15, 2017).

[33] Id.

[34] See Supplemental Brief for the Federal Appellants, State of Wyoming, Case Nos. 16-8068, 16-8069, Dkt No. 01019805368, at 1 (10th Cir., May 5, 2017) (explaining that “[a]lthough BLM had authority to promulgate the Hydraulic Fracturing Rule, it also has substantial discretion in how it carries out its statutory mission of administering federal and Indian leases. The specific provision of the Rule may no longer reflect BLM’s best judgment of how to exercise that authority.”). Interestingly, the administration’s supplemental brief also notes that BLM’s proposal “will be consistent with Executive Order 13,783” and with Interior Secretarial Order No. 3349.

[35] See Gilmer, Ellen, “Court to decide fate of federal fracking authority – or not,” Energywire (July 28, 2017).

[36] See, e.g., Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1206 (2015) (“[T]he D.C. Circuit correctly read § 1 of the APA to mandate that agencies use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance.”).

[37] Conservation Northwest v. Sherman, 715 F.3d 1181, 1185 (9th Cir. 2013) (explaining that consent decrees typically represent “an amalgam of delicate balancing, gross approximations, and rough justice,” and “need not impose all the obligations authorized by law.”).

[38] See Citizens for a Better Env’t v. Gorsuch, 718 F.2d 1117, 1126 (D.C. Cir. 1983) (analyzing whether the consent decree is “fair, adequate, reasonable and appropriate under the particular facts and that there has been valid consent by the concerned parties”).

[39] Like consent decrees, courts are generally willing to grant an agency’s request for voluntary remand and dismissal without judicial consideration of the merits. Carpenters Industrial Council v. Salazar, 734 F. Supp. 2d 126 (D.D.C. 2010) (granting the FWS’s request for voluntary remand). Where the courts appear to be somewhat split is whether confession of error alone is sufficient for an agency to voluntarily vacate or set aside the rule without judicial consideration of the underlying merits. Id. (denying the FWS’s request for voluntary vacatur without a judicial finding on the merits and over the objection of an original plaintiff to the action). Notwithstanding this concern, some courts have granted vacatur without judicial consideration of the merits over the objection of an intervenor or amici. Coal. of Arizona/New Mexico Counties for Stable Econ. Growth v. Salazar, No. 07-876, slip op. at 5 (D.N.M. May 4, 2009).

[40] See, e.g., Conservation Northwest, 715 F.3d 1181 (Ninth Circuit rejected a consent decree that set aside the challenged forest plans and reinstated the previous plans with certain modifications. The court held that the district court abused its discretion by entering a consent decree “that permanently and substantially amends an agency rule” without following rulemaking procedures). Cf. Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 672 F.3d 1160 (9th Cir. 2012) (upholding a National Marine Fisheries Service’s consent decree that vacated certain portions of a fishing management plan because the agreement was a “stop-gap” measure that temporarily restored the status quo ante pending new agency action and did not promulgate a new substantive rule).

[41] 66 Fed. Reg. 3,244 (Jan. 12, 2001) (2001 Roadless Rule).

[42] 68 Fed. Reg. 41,865 (July 15, 2003).

[43] 70 Fed. Reg. 25,654 (May 13, 2005).

[44] See, e.g., Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1107 (9th Cir. 2002); Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1211 (10th Cir. 2005).

[45] It is worth noting that while the State Petitions Rule was short-lived in its own right, at least two states (Idaho and Colorado) accepted the invitation and crafted state-specific refinements to the 2001 Roadless Rule under the APA that survived judicial scrutiny and are currently being implemented.  

[46] The 1980 regulations defined “unnecessary or undue degradation” as being among other things, “surface disturbance greater than that which would normally result when an activity is being conducted by a ‘prudent operator’ in usual, customary, and proficient operations.” 45 Fed. Reg. 78,909 (Nov. 26, 1980). By contrast, the Clinton administration’s rule indicated that BLM, for the first time, would deny a plan of operations or a permit, if the plan failed to comply with performance standards or would result in “substantial irreparable harm” to a “significant” scientific, cultural, or environmental resource value of the public lands that it could not be “effectively mitigated.” 65 Fed. Reg. 69,998 (Nov. 21, 2000).

[47] Id. at 16,164.

[48] Mining Claims Under the General Mining Laws; Surface Management, Proposed rule; proposed suspension of rules, 66 Fed. Reg. 16,162 (Mar. 23, 2001) (“2001 Suspension”).

[49] Mining Claims Under the General Mining Laws; Surface Management; Final Rule and Proposed Rule, 66 Fed. Reg. 54,834 (Oct. 30, 2001) (“2001 Revision”) (stating “We are amending the regulations in a way that removes from the regulatory scheme the components of the 2000 rule that created the most uncertainty regarding proper regulatory standards, while leaving in place the remainder of the rule.”).


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