Saying what the law isn't: Legislative delegations of waiver authority in environmental laws

Harvard Environmental Law Review

Volumn 34, Issue 1, 2010, Pages 257-310

  Bowers, Kate R ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION; FEDERAL SYSTEM; LEGAL SYSTEM; POLICY MAKING;

EID: 77951959902     PISSN: 01478257     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (507)

1. See Thomas W. Merrill, Rethinking Article I, Section I: From Nondelegation to Exclusive Delegation, 104 COLUM. L. REV. 2097, 2159-2160 (2004).
2. Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365 (2008);
3. County of El Paso v. Chertoff, No. EP-08-CA-196-FM, 2008 U.S. Dist. LEXIS 83045 (W.D. Tex. Aug. 29, 2008),
4. cert, denied, 129 S. Ct. 2789 (2009);
5. Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D.D.C 2007),
6. cert, denied, 128 S. Ct. 2962 (2008).
7. See Richard J. Lazarus, Restoring What's Environmental About Environmental Law in the Supreme Court, 47 UCLA L. REV. 703 (2000) (arguing that the Supreme Court has failed to appreciate environmental law as a distinct area of substantive law, and describing the challenges to environmental protection in the lawmaking process).
8. There has been some recent discussion of delegations of external waiver authority, specifically in the context of the REAL ID Act of 2005, which this Article addresses in detail. See Bryan Clark, Comment, Refining the Nondelegation Doctrine in Light of REAL ID Act Section 102(c): Time to Stop Bulldozing Constitutional Barriers for a Border Fence, 58 CATH. U. L. REV. 851 (2009);
9. Andrew Dudley, Comment, Opening Borders: Congressional Delegation of Discretionary Authority to Suspend or Repeal the Laws of the United States, 41 ARE. ST. L.J. 273 (2009) (undertaking a constitutional analysis of external waiver provisions through the lens of the REAL ID Act);
10. Andrea C. Sancho, Note, Environmental Concerns Created by Current United States Border Policy: Challenging the Extreme Waiver Authority Granted to the Secretary of the Department of Homeland Security Under the REAL ID Act of 2005, 16 SOUTHEASTERN ENVTL. L.J. 421, 444-54 (2008).
11. Additionally, some criticism of Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, which this Article also addresses in detail, has raised the issue of the waivers that were invoked in that case.
12. See, e.g., William S. Eubanks II, Damage Done? The Status of NEPA After Winter v. NRDC and Answers to Lingering Questions Left Open by the Court, 33 VT. L. REV. 649, 667-70 (2009). For the most part, however, scholars have not attempted to situate their case-specific analyses of a particular provision within the context of delegations of waiver authority more generally.
13. 3129 S. Ct. 365.
14. Id at 370.
15. 40 C.F.R. § 1506.11 (2008).
16. 16 U.S.C. §1456(c)(1)(B) (2006).
17. Winter, 129 S. Ct. at 373.
18. Pub. L. No.109-13, div. B, §102(c), 119 Stat. 302, 306 (2005),
19. reprinted in 8 U.S.C. § 1103 note (2006) (Improvement of Barriers at Border).
20. Pub. L. No.104-208, div. C, 110 Stat. 3009-3546 (1996) (codified as amended in scattered sections of 8 and 18 U.S.C).
21. 129 S. Ct. at 370.
22. See REAL ID Act of 2005 §102(c)(2), reprinted in 8 U.S.C. §1103 note (Improvement of Barriers at Border).
23. County of El Paso v. Napolitano, 129 S. Ct. 2789 (2009);
24. Defenders of Wildlife v. Chertoff, 128 S. Ct. 2962 (2008).
25. On more than one occasion, Congress has waived environmental laws for specific projects through the use of riders attached to unrelated legislation. See infra note 19.
26. E.g., Energy Supply and Environmental Coordination Act of 1974 §7(c)(1), 15 U.S.C. § 793(c)(1) (2006) (exempting from NEPA review certain actions taken pursuant to the Clean Air Act);
27. Alaska National Interest Lands Conservation Act of 1980 §205, 16 U.S.C. § 410hh(4)(d) (2006) (creating alternate environmental review procedures for surface transportation rights-of-way in the Gates of the Arctic National Preserve);
28. Multifamily Housing Property Disposition Reform Act of 1994 §305(c), 42 U.S.C. §3547(2) (2006) (exempting certain Department of Housing and Urban Development ("HUD") funding decisions from compliance with NEPA);
29. Power Plant and Industrial Fuel Use Act §763, 42 U.S.C. §8473 (exempting from NEPA review Department of Energy decisions to grant or deny exemptions from the regulations governing fuel use at coal-fired power plants);
30. Nuclear Waste Policy Act of 1982 § 135, 42 U.S.C. §10155(c)(2)(A) (deeming completion of an Environmental Assessment with respect to certain retrievable radioactive waste storage facilities sufficient for compliance with NEPA).
31. Pub. L. No.109-58, 119 Stat. 594 (2005) (codified as amended in scattered titles of U.S.C).
32. See 16 U.S.C. §1465 (tightening the deadline for appealing permitting decisions under CZMA);
33. 30 U.S.C. §226 (2006) (expediting the permitting process for natural gas facilities located on federal lands);
34. 42 U.S.C. §300(h) (excluding hydraulic fracturing in aid of oil, gas, and geothermal energy extraction from certain requirements of the Safe Drinking Water Act); id. §1362 (exempting oil and gas exploration, production, construction, and treatment projects from the Clean Water Act's construction stormwater regulations);
35. id. §15924 (requiring federal officials and land management agencies in western states to develop a project to expedite environmental review and permitting under several federal environmental statutes);
36. id. § 15942 (creating a rebuttable presumption that oil and gas projects conducted on federal land pursuant to the Mineral Leasing Act are categorically excluded from NEPA).
37. For example, in 1995, Congress attached a rider for the "Emergency Salvage Timber Sale Program," which suspended environmental laws and judicial review related to the Pacific Northwest logging program, to the unrelated 1995 Rescissions Act. See Trilby C.E. Dorn, Comment, Logging Without Laws: The 1995 Salvage Logging Rider Radically Changes Policy and the Rule of Law in the Forests, 9 TUL. ENVTL. L.J. 447, 464 (1996).
38. Because the Act was a spending measure "necessary to keep the federal government operating," there were no congressional hearings for the rider. Id.;
39. see also Patti A. Goldman & Kristen L. Boyles, Forsaking the Rule of Law: The 1995 Logging Without Laws Rider and its Legacy, 27 ENVTL. L. 1035, 1036-37 (1997) ("Members of Congress have quickly learned that circumventing the normal legislative processes allows budget riders to escape full committee consideration and reasoned scrutiny. . . . [Proposed anti-environmental riders] could not pass on their own merits, so instead they rode along the coattails of popular or essential legislation.").
40. President Clinton vetoed the rescissions bill, in part because of the logging rider, but then reached an agreement whereby Congress would make minor changes to the logging rider, which the House and the Senate subsequently passed. See id. at 1047-48;
41. see also Victor M. Sher & Carol Sue Hunting, Eroding the Landscape, Eroding the Laws: Congressional Exemptions from Judicial Review of Environmental Laws, 15 HARV. ENVTL. C. REV. 435 (1991) (criticizing Congress's use of appropriations riders to modify environmental legislation and limit judi- cial review);
42. Sandra Beth Zellmer, Sacrificing Legislative Integrity at the Altar of Appropriations Riders: A Constitutional Crisis, 21 HARV. ENVTL. L. REV. 457, 458 (1997) (arguing for a constitutional amendment banning the use of appropriations riders "to enact substantive exemptions or changes in the law").
43. INS v. Chadha, 462 U.S. 919 (1983).
44. See Chadha, 462 U.S. at 968 (White, J., dissenting);
45. Michael Herz, The Legislative Veto in Times of Political Reversal: Chadha and the 104th Congress, 14 CONST. COMMENT. 319, 324-325 (1997).
46. See James Abourezk, The Congressional Veto: A Contemporary Response to Executive Encroachment on Legislative Prerogatives, 52 IND. L.J. 323, 324 (1977).
47. Sher & Hunting, supra note 19, at 438.
48. Endangered Species Act of 1973, 16 U.S.C. §§1531-1544 (2006).
49. Endangered Species Act Amendments of 1978, Pub. L. No.95-632, §3, 92 Stat. 3751, 3758 (1978)
50. (codified as amended at 16 U.S.C. §1536).
51. 437 U.S. 153(1978).
52. Sher & Hunting, supra note 19, at 441-42.
53. Interestingly, at the same time, Congress created a project-specific exemption for the Tellico Dam within an appropriations authorization bill for the ESA. See id. at 442-444
54. See, e.g., Louisiana Katrina Reconstruction Act, S. 1765, 109th Cong. (2005) (proposing suspensions beyond the emergency exemption provisions contained in several existing environmental laws, including exempting from environmental review processes any Army Corps of Engineers projects approved by a particular commission, as well as permitting the President to suspend any environmental law for any project for two years after Hurricane Katrina);
55. see also Janell Smith & Rachel Spector, Environmental Justice, Community Empowerment and the Role of Lawyers in Post-Katrina New Orleans, 10 N.Y. CITY L. REV. 277, 283 (2006).
56. See generally LINDA LUTHER, CONG. RESEARCH SERV., NEPA AND HURRICANE RESPONSE, RECOVERY, AND REBUILDING EFFORTS (2005), available at http://hdl.handle.net/10207/2582.
57. E.g., REAL ID Act of 2005 §102, reprinted in 8 U.S.C. §1103 note (2006) (Improvement of Barriers at Border). Suspension provisions are found most frequently in congressional appropriations riders.
58. See supra note 19;
59. Emergency Salvage Timber Sale Program, Pub. L. No.104-19, §§2001(e), (0, (D, 109 Stat. 240, 244-246 (1995) (suspending environmental laws applicable to timber harvest for one year).
60. Eg., 16 U.S.C. §1456(c)(1)(B) (CZMA);
61. id. §15360) (ESA); 42 U.S.C. §6961 (2006) (Resource Conservation and Recovery Act).
62. See Bart Lounsbury, Digging Out of the Holes We've Made: Hardrock Mining, Good Samaritans, and the Need for Comprehensive Action, 32 HARV. ENVTL. L. REV. 149 (2008) (describing "Good Samaritan" bills that waive compliance with environmental laws for private parties who clean up certain mine sites).
63. See, e.g., David Alexander Peterson, Comment, Louisiana's Legislative Suspension Power: Valid Method for Override of Environmental Laws and Agency Regulations?, 53 LA. L. REV. 247 (1992) (analyzing constitutionality of the Louisiana state legislature's proposed suspensions of environmental laws and regulations).
64. For a more limited survey of waiver provisions, see Stephen R. Viña & Todd B. Tatelman, Cong. Research Serv., Memorandum on Sec. 102 of H.R. 418, Waiver of Laws Necessary for Improvement of Barriers at Borders 2-4 (Feb. 9, 2005), available at http://graphics8.nytimes.com/packages/pdf/national/ 20080408-CRS report.pdf.
65. See, e.g., 16 U.S.C. §1456(c)(1)(B);
66. 40 C.F.R. §1506.11 (2008);.
67. See, e.g., REAL ID Act of 2005 §102, reprinted in 8 U.S.C. §1103 note (2006) (Improvement of Barriers at Border).
68. For example, IIRIRA - which, as amended by the REAL ID Act, contains a broad external waiver provision exercisable by the Secretary of Homeland Security in furtherance of constructing fences along the United States-Mexico border - has been used specifically to suspend environmental laws and has become the subject of intense litigation by environmentalist groups. See infra Part III.B.
69. 16 U.S.C. §§1451-1464;
70. see also discussion infra Part III.A.
71. 16 U.S.C. §1456(c)(1)(B).
72. REAL ID Act of 2005 §102(c)(1).
73. See infra Part III.B.
74. 16 U.S.C. §1536(j).
75. 33 C.F.R. §337.7 (2008).
76. 7 U.S.C. §136p (2006);
77. 40 C.F.R. §166.2 (2008).
78. 42 U.S.C. §300g-1(b)(1)(D) (2006).
79. 43 U.S.C. §1652(c) (2006).
80. 42 U.S.C. §§4342, 4344.
81. See, e.g., William L. Andreen, In Pursuit of NEPA's Promise: The Role of Executive Oversight in the Implementation of Environmental Policy, 64 IND. L.J. 205, 230-42 (1989);
82. Aaron Ehrlich, In Hidden Places: Congressional Legislation that Limits the Scope of the National Environmental Policy Act, 13 HASTINGS W.-Nw. J. ENVTL. L. & POLV 285, 288 (2007);
83. Paul S. Weiland, Amending the National Environmental Policy Act: Federal Environmental Protection in the Twenty-First Century, 12 J. LAND USE & ENVTL. L. 275, 284-86 (1997).
84. 40 C.F.R. §1506.11 (2008). It is important to note that CEQ has in a sense delegated waiver authority to itself through its promulgation of Section 1506.11.
85. See infra note 220 and accompanying text.
86. 16 U.S.C §§1531-1544 (2006).
87. Id §1536(e). Federal agencies are required to consult with the Secretary of the Interior to ensure any action they authorize, fund, or carry out will not be "likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species."
88. Id. §1536(a).
89. Id. §1536(e)(3).
90. For example, the ESA contains a general exemption that has rigid procedural and substantive requirements, as well as separate exemptions for national security, disasters, and emergencies. 16 U.S.C. §§1536(g), (j), (p).
91. See Michael B. Gerrard, Disasters First: Rethinking Environmental Law After September 11, 9 WIDENER L. SYMP. J. 223, 230 (2003).
92. Id.
93. See, e.g., Clean Air Act §110(f)(2), 42 U.S.C. §7410(0(2) (2006) (defining emergency for the purpose of temporary suspensions as "a temporary energy emergency involving high levels of unemployment or loss of necessary energy supplies for residential dwellings").
94. See, e.g., National Oil and Hazardous Substances Pollution Contingency Plan, 53 Fed. Reg. 51,394, 51,396 (proposed Dec. 21,1988) (noting that for purposes of responding to remedial actions under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), EPA has defined "emergency" as "a release or threat of release generally requiring initiation of a removal action within hours of the lead agency's determination that a removal action is appropriate.").
95. E.g., CWA §311, 33 U.S.C. §1321(c)(4) (2006) (suspending liability for removal costs or damages resulting from actions "consistent with the National Contingency Plan or as otherwise directed by the President relating to a discharge or a substantial threat of discharge of oil or a hazardous substance");
96. Oil Pollution Act of 1990 §1003, 33 U.S.C. §2703(a) (suspending liability for removal costs or damages associated with the discharge of oil or hazardous substances by providing a complete affirmative defense);
97. CERCLA §107, 42 U.S.C. § 9607(d) (suspending liability for the release and threat of release of hazardous substances).
98. Of course, even if a statute does not delegate the power to determine whether or not the law should apply despite the existence of an emergency, executive officials may still have discretion to determine whether a law applies in the way they define "emergency" or determine whether an emergency exists. The level of deference accorded by courts to such decisions is unclear. Compare United States v. W.R. Grace & Co., 429 F.3d 1224, 1249 (9th Cir. 2005) (holding EPA's invocation of CERCLA emergency exemption in asbestos removal action was not arbitrary or capricious),
99. with APWU v. Potter, 343 F.3d 619, 626-627 (2d Cir. 2003) (holding that EPA was incorrect in determining that anthrax removal was an emergency under CERCLA).
100. 42 U.S.C. §7410.
101. 33 C.R.R. §337.7 (2008).
102. 42 U.S.C. §9606(c);
103. 40 C.F.R. §300.440(a)(2) (2008) ("In cases of . . . emergency actions ... the On-Scene Coordinator (OSC) may determine that it is necessary to transfer CERCLA waste off-site without following the requirements of this section.").
104. 16 U.S.C §1536(p) (2006).
105. 7 U.S.C. §136p (2006) (permitting emergency exemptions at the EPA Administrator's discretion, in consultation with the Secretary of Agriculture and the Governor of any affected state);
106. 40 C.F.R. §166.2.
107. 42 U.S.C. § 6973(a).
108. Id §300g-1(b)(1)(D) (permitting the EPA Administrator to "promulgate an interim national primary drinking water regulation for a contaminant without making a determination for the contaminant ... to address an urgent threat to public health as determined by the Administrator").
109. Id. §5159. The Stafford Act suspends the applicability of NEPA by excluding these actions from the definition of "major Federal action[ ] significantly affecting the quality of the human environment," the triggering language for NEPA.
110. Id. §4332.
111. 16 U.S.C §1536(p).
112. Id.
113. Id.
114. Id.
115. See Natural Res. Def. Council, Inc. v. Winter, 527 R Supp. 2d 1216, 1225 (C.D. Cal. 2008).
116. 16 U.S.C. §1536(j).
117. 42 U.S.C. §6961(a) (2006).
118. 16 U.S.C. §1456 (c)(1)(B).
119. Id. §1536(g)(3)(A).
120. Id. §1536(h)(1).
121. REAL ID Act of 2005 §102(c)(1), reprinted in 8 U.S.C. §1103 note (2006) (Improvement of Barriers at Border).
122. 40 C.F.R. § 1506.11 (2008).
123. 16 U.S.C. §1536(g) (2006);
124. see Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534 (9th Cir. 1993) (striking down an ESA exemption for failure to follow applicable procedures).
125. 16 U.S.C. § 1536(g)(3)(A).
126. Id. § 1536(g)(4).
127. Id. §1536(g)(5).
128. Id. §1536(h)(1).
129. Id. § 1536(n).
130. See 5 U.S.C. § 702 (2006).
131. REAL ID Act of 2005 §102(c)(2)(A), reprinted in 8 U.S.C. §1103 note (2006) (Improvement of Barriers at Border).
132. Id. §§102(c)(2)(A), (C).
133. 16 U.S.C. §1456(c)(1)(B).
134. See infra Part IV.B.
135. Letter from James Connaughton, Council on Envtl. Quality, to Donald C. Winter, Sec'y of the Navy (Jan. 15, 2008) [hereinafter CEQ Letter], reprinted in Petition for Writ of Certiorari app. at 233a, Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365 (2008) (No.07-1239) [hereinafter Winter Petition].
136. Memorandum from President George W. Bush to the Secretaries of Defense and Commerce, Presidential Exemption from the Coastal Zone Management Act (Jan. 15, 2008) [hereinafter Presidential Exemption from the CZMA], reprinted in Winter Petition, supra note 89, app. at 231a. A complete discussion of the issues litigated in Winter is outside the purview of this Article.
137. For discussion of the question of the preliminary injunction standard, which ultimately became the basis for the Supreme Court's decision in the case, see Lisa Lightbody, Comment, Winter v. Natural Resources Defense Council, Inc., 33 HARV. ENVTL. L. REV. 593 (2009).
138. 527 F. Supp. 2d 119 (D.D.C. 2007),
139. No. EP-08-CA-196-FM, 2008 WL 4372693 (W.D. Tex. Aug. 29, 2008),
140. cert, denied, 129 S. Ct. 2789 (2009).
141. Although NRDC included extensive arguments in its Supreme Court briefing regarding the constitutionality of CEQ's emergency exemption in this particular case, the government petitioners questioned whether those arguments were properly before the Court. See Reply Brief for the Petitioners at 2, Winter, 129 S. Ct. 365 (2008) (No.07-1239) [hereinafter Winter Petitioners' Reply Brief];
142. infra Part III.A.
143. County of El Paso, 129 S. Ct. 2789;
144. Defenders of Wildlife, 128 S. Ct. 2962.
145. Winter, 129 S. Ct. at 372. The use of MFA sonar has the potential to harm individual marine animals "by causing mass strandings, hemorrhaging around the brain, ears, and kidneys, acute changes in the central nervous system, and gas/fat clots in the lungs, liver, and other vital organs," and can bring about species-level impacts by "displacing habitat and altering behavior."
146. Lightbody, supra note 90, at 601.
147. The precise effects that would result from MFA sonar use in this particular set of training exercises were in dispute in Winter. Id.
148. Winter, 129 S. Ct. at 372.
149. Id. at 374.
150. Id at 374.
151. Id. at 372, 373 (internal quotation marks omitted).
152. Natural Res. Def. Council, Inc. v. Winter, 508 F.3d 885 (9th Cir. 2007).
153. Natural Res. Def. Council, Inc. v. Winter, 530 R Supp. 2d 1110 (C.D. Cal. 2008). The two mitigation measures that formed the basis of the Navy's subsequent appeal were the imposition of a shutdown zone, which would have required "shutting down MFA sonar when a marine mammal is spotted within 2,200 yards of a vessel," and a requirement to power down sonar "by 6 dB during significant surface ducting conditions, in which sound travels further than it otherwise would due to temperature differences in adjacent layers of water."
154. Winter, 129 S. Ct. at 373.
155. Winter, 129 S. Ct. at 373. A third waiver provision was implicated in the case: the Marine Mammal Protection Act's ("MMPA") exemption from the prohibition against "taking" a marine mammal where necessary for national defense.
156. See 16 U.S.C. §1371(f)(1) (2006). Because the MMPA exemption was not challenged through the majority of the litigation, I do not address it here.
157. See 42 U.S.C. §4332 (2006);
158. 40 C.F.R. §1508.9 (2008).
159. 40 C.F.R. §1506.11.
160. 43 Fed. Reg. 25,230, 25,243 (proposed June 9, 1978) (draft regulation);
161. 43 Fed. Reg. 55,978, 56,002 (Nov. 29, 1978) (final regulations).
162. Exec. Order No. 11,991, 3 C.F.R. 123 (1977).
163. See COUNCIL ON ENVTL. QUALITY, ALTERNATIVE ARRANGEMENTS PURSUANT TO 40 CFR SECTION 1506.11 - EMERGENCIES (2008), available at http://ceq.hss.doe.gov/ nepa/eis/Alternative-Arrangements-Chart-092908.pdf.
164. See Winter Petitioners' Reply Brief, supra note 93, at 5;
165. KRISTINA ALEXANDER, CONG. RESEARCH SERV., WHALES AND SONAR: ENVIRONMENTAL EXEMPTIONS FOR THE NAVY'S MID-FREQUENCY ACTIVE SONAR TRAINING 10 (2009), available at http://www.fas.org/sgp/crs/weapons/RL34403.pdf.
166. Before Winter, courts had ruled on - and upheld - the creation of emergency alternative arrangements in three cases: (1) the release of HUD funding for an urban renewal project in Detroit in 1980, Crosby v. Young, 512 F. Supp. 1363 (E.D. Mich. 1981);
167. the issuance of a permit to capture the remaining California Condors and remove them from the wild after a change in the Fish and Wildlife Service's policy in 1985, Nat'l Audubon Society v. Hester, 801 F.2d 405 (D.C. Cir. 1986); (3) the allowance of night flights into and a greater overall number of flights from an air force base in 1991, during Operation
168. Valley Citizens for a Safe Environment v. Vest, Civ. A. No. 91-30077-F, 1991 WL 330963 (D. Mass. May 6, 1991).
169. See ALEXANDER, supra note 108, at 9 (noting that Section 1506.11 can be supported by 42 U.S.C. § 4331(b), "which states that it is the responsibility of the United States government to 'use all practicable means, consistent with other essential considerations of national policy' to consider the environmental impacts of its actions").
170. CEQ Letter, supra note 89, at 238a;
171. Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 373 (2008).
172. See CEQ Letter, supra note 89;
173. Winter, 129 S. Ct. at 373-74.
174. See CEQ Letter, supra note 89, at 238a (identifying information conveyed to CEQ by the Navy as the foundation for its determination regarding alternative arrangements). NRDC played no part in CEQ's decision-making process.
175. 16 U.S.C. § 1456(c)(1)(A) (2006).
176. Id. § 1456(c)(1)(B).
177. Id.
178. see also Joseph Romero, Uncharted Waters: The Expansion of State Regulatory Authority over Federal Activities and Migratory Resources under the Coastal Zone Management Act, 56 NAVAL L. REV. 137, 146 (2008) (arguing that the threshold requirement of an adverse judicial ruling indicates that Congress intended to limit use of the exemption to rare occasions). The second precondition is that the Secretary of Commerce must certify that mediation is not likely to result in compliance with the consistency requirement.
179. 16 U.S.C. § 1456(c)(1)(B).
180. Presidential Exemption from the CZMA, supra note 90.
181. Id.
182. Id.
183. See id. (referring to the EA prepared by the Navy).
184. See Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008).
185. Natural Res. Def. Council, Inc. v. Winter, 527 F. Supp. 2d 1216 (C.D. Cal. 2008).
186. Id. at 1227. Since neither Section 1506.11 nor any other part of NEPA defined "emergency," the court looked to plain meaning, agency intent, and other principles of statutory construction to support its conclusion.
187. See id.
188. Id. at 1228.
189. Id. at 1229.
190. Id. at 1230.
191. Id. at 1232.
192. Id. at 1237-38.
193. Id. at 1236-37.
194. Natural Res. Def. Council, Inc., v. Winter, 518 F.3d 658, 687 (9th Cir. 2008).
195. The Ninth Circuit standard required only that NRDC establish a possibility of irreparable injury.
196. See id. at 696.
197. Winter Petition, supra note 89. The petitioners included the Secretary of the Navy, the Secretary of Commerce, the National Marine Fisheries Service, and the National Oceanic and Atmospheric Administration.
198. See id. at 23 n.4 (noting that NRDC had argued to Congress that NEPA permitted emergency action in consultation with CEQ prior to completing environmental documentation).
199. See Brief for the Respondents at 24, Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365 (2008) (No. 07-1239)
200. [hereinafter Winter Respondents' Brief].
201. Id. at 41, 48.
202. Winter, 129 S. Ct. 365.
203. Id. at 381.
204. For more information on border fence construction and the REAL ID Act, see generally MICHAEL JOHN GARCIA, MARGARET MIKYUNG LEE & TODD TATELMAN, CONG. RESEARCH SERV., IMMIGRATION: ANALYSIS OF THE MAJOR PROVISIONS OF THE REAL ID ACT OF 2005 (2005), available at http://www.fas.org/sgp/crs/homesec/RL32754. pdf;
205. CHAD C. HADDAL, YULE KIM & MICHAEL JOHN GARCIA, CONG. RESEARCH SERV., BORDER SECURITY: BARRIERS ALONG THE U.S. INTERNATIONAL BORDER (2009), available at http://www.fas.org/sgp/crs/homesec/RL33659.pdf;
206. BLAS NUNEZ-NETO & MICHAEL JOHN GARCIA, CONG. RESEARCH SERV., BORDER SECURITY: THE SAN DIEGO FENCE (2007), available at http://www.fas.org/sgp/crs/ homesec/RS22026.pdf.
207. Pub. L. No. 109-13, div. B, 119 Stat. 302 (2005) (codified as amended in scattered sections of 8 U.S.C).
208. Pub. L. No. 104-208, div. C, 110 Stat. 3009-546 (1996) (codified as amended in scattered sections of 8 and 18 U.S.C).
209. PUb. L. No. 104-208, div. C, § 102, 110 Stat. 3009-546, 3009-554-55 (1996).
210. E.g., Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (codified as amended in scattered sections of 5, 6, 18, 44, and 49 U.S.C).
211. REAL ID Act of 2005 § 102, reprinted in 8 U.S.C. § 1103 note (2006) (Improvement of Barriers at Border). The REAL ID Act has received much more publicity for its creation of national standards for state-issued driver's licenses and identification cards and, to a lesser extent, its tightening of certain asylum and deportation laws.
212. See, e.g., Marisa Silenzi Cianciarulo, Terrorism and Asylum Seekers: Why the Real ID Act is a False Promise, 43 HARV. J. ON LEGIS. 101 (2006);
213. Aubra Fletcher, Recent Development, The REAL ID Act: Furthering Gender Bias in U.S. Asylum Law, 21 BERKELEY J. GENDER L. & JUST. 111 (2006);
214. Manoj Govindaiah, Recent Development, Driver Licensing under the Real ID Act: Can Current Technology Balance Security and Privacy?, J.L. TECH. & POL'Y 201 (2006). Many state governments have criticized the law.
215. See Eric Lipton, Rebellion Growing as States Challenge a Federal Law to Standardize Driver's Licenses, N.Y. TIMES, Feb. 5, 2007, at Al. The Obama Administration is considering scaling back the law by replacing it with a less rigorous and less expensive program.
216. See Spencer S. Hsu, Administration Plans to Scale Back Real ID Law, WASH. POST, June 14, 2009, at A03.
217. REAL ID Act of 2005 § 102(c)(1),
218. reprinted in 8 U.S.C. § 1103 note (2006) (Improvement of Barriers at Border).
219. Id.
220. Id. § 102(c)(2).
221. Id. § 102(c)(2)(A) ("A cause of action or claim may only be brought alleging a violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph.").
222. Id. ("The district courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to [§ 102(c)(1)].... The court shall not have jurisdiction to hear any claim not specified in this subparagraph.").
223. Id. § 102(c)(2)(C) ("An interlocutory or final judgment, decree, or order of the district court may be reviewed only upon petition for a writ of certiorari to the Supreme Court of the United States."). Amendments subsequent to the REAL ID Act have further altered IIRIRA beyond Section 102.
224. See Secure Fence Act of 2006, Pub. L. No. 109-367, §§ 2-3, 120 Stat. 2638, 2638-39 (codified at 8 U.S.C. §§ 1103 note, 1701 note (2006)) (providing, inter alia, more detailed instructions as to the security features of the border fence to be constructed, and directing the Secretary of Homeland Security to take action to achieve and maintain "operational control" over U.S. borders);
225. Department of Homeland Security Appropriations Act of 2008, Pub. L. No. 110-161, Div. E, Tit. V, § 564, 121 Stat. § 2042, 2090-91 (codified at 8 U.S.C. § 1103 note).
226. Petition for Writ of Certiorari at 8-9, County of El Paso v. Chertoff, 129 S. Ct. 2789 (2008) (No. 08-751)
227. [hereinafter County of El Paso Petition].
228. Id. at 9.
229. Petition for Writ of Certiorari at 5, Defenders of Wildlife v. Chertoff, 128 S. Ct. 2962 (2008) (No. 07-1180)
230. [hereinafter Defenders of Wildlife Petition].
231. HADDAL ET AL., supra note 137, at 32.
232. Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 120-21 (D.D.C 2007).
233. Id. at 121.
234. Defenders of Wildlife Petition, supra note 151, at 5.
235. Defenders of Wildlife, 527 F. Supp. 2d at 121. Defenders of Wildlife alleged in its petition for certiorari that the EA "disclosed the possibility of serious impacts to the soils and natural resources of the [San Pedro Riparian National Conservation Area]."
236. Defenders of Wildlife Petition, supra note 151, at 6.
237. Defenders of Wildlife Petition, supra note 151, at 6.
238. Defenders of Wildlife, 527 F. Supp. 2d at 121.
239. 72 Fed. Reg. 60,870 (Oct. 26, 2007).
240. The laws waived were: The National Environmental Policy Act (Pub. L. 91-190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321 et seq.)),
241. t he Endangered Species Act (Pub. L. 93-205, 87 Stat. 884 (Dec. 28, 1973) (16 U.S.C. 1531 et seq.)),
242. the Federal Water Pollution Control Act (commonly referred to as the Clean Water Act) (Act of June 30, 1948, c. 758, 62 Stat. 1155 (33 U.S.C. 1251 et seq.)),
243. the National Historic Preservation Act (Pub. L. 89-665, 80 Stat. 915 (Oct. 15, 1966) (16 U.S.C. 470 et seq.)),
244. the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.),
245. the Clean Air Act (42 U.S.C. 7401 et seq.),
246. the Archeological Resources Protection Act (Pub. L. 96-95, 16 U.S.C. 470aa et seq.),
247. the Safe Drinking Water Act (42 U.S.C. 300f et seq.),
248. the Noise Control Act (42 U.S.C. 4901 et seq.),
249. the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.),
250. the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601 et seq.),
251. the Federal Land Policy and Management Act (Pub. L. 94-579, 43 U.S.C. 1701 et seq.),
252. the Fish and Wildlife Coordination Act (Pub. L. 73-121, 48 Stat. 401, 16 U.S.C. 661 et seq.),
253. the Archaeological and Historic Preservation Act (Pub. L. 86-523, 16 U.S.C. 469 et seq.),
254. the Antiquities Act (16 U.S.C. 431 et seq.),
255. the Historic Sites, Buildings, and Antiquities Act (16 U.S.C. 461 et seq.),
256. the Arizona-Idaho Conservation Act of 1988 (Pub. L. 100-696, 16 U.S.C. 460xx et seq.),
257. the Wild and Scenic Rivers Act (Pub. L. 90-542, 16 U.S.C. 1281 et seq.),
258. the Farmland Protection Policy Act (7 U.S.C. 4201 et seq.)
259. and the Administrative Procedure Act (5 U.S.C. 551 et seq.).
260. Id. at 60,870.
261. It is worth noting that DHS took considerable steps following the exercise of Secretary Chertoff s suspension authority to mitigate the fence construction's effects on endangered or threatened species and culturally significant sites.
262. See Dudley, supra note 4, at 277;
263. Statement of Secretary Michael Chertoff Regarding Exercise of Waiver Authority, Dep't. of Homeland Sec. (Apr. 1, 2008), available at http://www.dhs.gov/xnews/releases/pr-1207083685391.shtm.
264. Defenders of Wildlife, 527 F. Supp. 2d at 123.
265. Id.
266. See id at 129.
267. Id. at 126.
268. Id. at 124.
269. Id. at 129.
270. Defenders of Wildlife Petition, supra note 151.
271. Id. at 3.
272. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001
273. ) (quoting J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928)) (internal quotation marks omitted).
274. Defenders of Wildlife Petition, supra note 151, at 13. The petitioners further argued that delegations of legislative power to the Executive Branch without provisions for judicial review had only been upheld in limited circumstances where the intelligible principle requirement did not apply.
275. See id at 17-19.
276. Id. at 3.
277. Id. at 9.
278. Brief for the Respondent at 10, Defenders of Wildlife v. Chertoff, 128 S. Ct. 2962 (2008) (No. 07-1180)
279. [hereinafter Defenders of Wildlife Respondent's Brief]
280. (quoting REAL ID Act of 2005 § 102(c)(1)
281. , reprinted in 8 U.S.C. § 1103 note (2006) (Improvement of Barriers at Border)).
282. Id. at 13 (quoting Loving v. United States, 517 U.S. 748, 772 (1996)).
283. quoting Loving v. United States, 517 U.S. 748, 772 (1996)).
284. Defenders of Wildlife Respondent's Brief, supra note 173, at 14.
285. Id. at 24
286. (citing Clinton v. City of New York, 524 U.S. 417, 438 (1998)). In Clinton, the Supreme Court struck down the Line Item Veto Act, which empowered the President to cancel three types of spending provisions that had been signed into law.
287. U.S. at 436. The Court held that in using the Line Item Veto Act to cancel portions of the Balanced Budget Act of 1997 and the Taxpayer Relief Act of 1996, the President effectively amended two Acts of Congress without conforming to the procedures required by Article I of the Constitution.
288. See id. at 438, 440 ("What has emerged in these cases from the President's exercise of his statutory cancellation powers... are truncated versions of two bills that passed both Houses of Congress. They are not the product of the 'finely wrought' procedure that the Framers designed.").
289. Defenders of Wildlife v. Chertoff, 128 S. Ct. 2962 (2008).
290. Winter v. Natural Res. Def. Council, Inc., 128 S. Ct. 2964 (2008).
291. Winter Respondents' Brief, supra note 133, at 19-29.
292. Of course, the Court's reluctance to engage with the constitutional arguments advanced in Winter and the border fence cases may also be motivated more broadly by the constitutional avoidance canon or judicial minimalism. See Cass R. Sunstein, Leaving Things Undecided, 110 HARV. L. REV. 4, 20-21 (1996). Nevertheless, the opinion in Winter might have suggested that the Court was particularly wary of constitutional challenges with respect to waiver delegations.
293. 73 Fed. Reg. 19,077 (Apr. 8, 2008);
294. Fed. Reg. 19,078 (Apr. 8, 2008);
295. see County of El Paso Petition, supra note 149, at 8.
296. County of El Paso v. Chertoff, EP-08-CA-196-FM, 2008 U.S. Dist. LEXIS 83045, at *5 (W.D. Tex. Aug. 29, 2008).
297. Id.
298. County of El Paso Petition, supra note 149. After the petition for certiorari was filed, Janet Napolitano, who succeeded Michael Chertoff as
299. Id. at 12.
300. Id. at 12-13
301. (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989) (alteration in original)).
302. Id.
303. Id. at 13
304. (quoting Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)).
305. Id. at 18-19. The petitioners also argued that an executive branch agency could not preempt state law on its own authority without a clear and unequivocal grant of authority by Congress.
306. Id. Because the focus of this Article is on the separation of powers issues raised by the use of suspension and waiver provisions, I do not address the arguments made as to whether the Secretary of Homeland Security could use the REAL ID Act to preempt state law.
307. Brief for the Respondents in Opposition at 17, County of El Paso v. Napolitano, 129 S. Ct. 2789 (2009) (No. 08-751).
308. Id. at 18.
309. See Docket for 08-751, available at http://origin.www.supremecourtus.gov/ docket/08-751.htm.
310. County of El Paso v. Napolitano, 129 S. Ct. 2789 (2009).
311. See, e.g., THE FEDERALIST NO. 47, at 1-2 (George F. Hopkins ed., 1802).
312. Id.
313. Clinton v. City of New York, 524 U.S. 417, 449 (1998) (Kennedy, J., concurring).
314. 524 U.S. 417.
315. Id. at 449 (Kennedy, J., concurring).
316. Id.
317. Id. at 450.
318. Id. at 451-52 ("The Constitution is a compact enduring for more than our time, and one Congress cannot yield up its own powers, much less those of other Congresses to follow. Abdication of responsibility is not part of the constitutional design." Id. at 452 (citations omitted)).
319. See also Dudley, supra note 4, at 288-89 (arguing, on a contractarian account, that suspension provisions enable the delegate "to selectively obey or disregard decisions that society deliberately entrusted to other institutions").
320. See Risa E. Kaufman, Access to the Courts as a Privilege or Immunity of National Citizenship, 40 CONN. L. REV. 1477, 1518-19 & nn.203-05 (2008);
321. Tana M. Sanchez, Note, Waiving Good-Bye to Environmental Laws Along the Arizona Borderlands, 16 Mo. ENVTL. L. & POL'Y REV. 281 (2009) (analyzing the constitutionality of the REAL ID Act's waiver provisions).
322. U.S. CONST, art. I, § 1.
323. See Jim Rossi, Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the States, 52 VAND. L. REV. 1167, 1178-79 (1999).
324. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001);
325. Mistretta v. United States, 488 U.S. 361 (1989).
326. But see Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1721, 1722-23 (2002) (arguing that the nondelegation doctrine does not exist as a constitutional rule and that "[a] statutory grant of authority to the executive isn't a transfer of legislative power, but an exercise of legislative power") (emphasis added).
327. Indus. Union Dep't v. Am. Petroleum Inst., 448 U.S. 607, 685 (1980) (Rehnquist, J., concurring).
328. Rossi, supra note 205, at 1178.
329. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
330. Panama Ref. Co. v. Ryan, 293 U.S. 388, 415 (1935).
331. Mistretta, 488 U.S. at 372-73 (1989)
332. (quoting Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)) (citations omitted).
333. 531 U.S. 457 (2001).
334. Rossi, supra note 205, at 1179
335. (citing THEODORE J. LOWI, THE END OF LIBERALISM: IDEOLOGY, POLICY, AND THE CRISIS OF PUBLIC AUTHORITY 156 (1969)).
336. Indus. Union Dep't v. Am. Petroleum Inst., 448 U.S. 607, 685 (1980) (Rehnquist, J., concurring).
337. Id.
338. Rossi, supra note 205, at 1179
339. (citing JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 148-52 (1997)).
340. Id.
341. 16 U.S.C. §§ 1536(g), (h) (2006).
342. See Indus. Union Dep't, 448 U.S. at 685-86. (Rehnquist, J., concurring).
343. 40 C.F.R. § 1506.11 (2008).
344. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 475 (2001).
345. 16 U.S.C. § 1536(j).
346. Id. §§ 1536(g), (h).
347. REAL ID Act of 2005 § 102(c)(1), reprinted in 8 U.S.C. § 1103 note (2006) (Improvement of Barriers at Border).
348. 151 CONG. REC. H466 (daily ed. Feb. 9, 2005) (statement of Rep. Blumenauer). Representative Blumenauer also noted that "no member of Congress, no citizen could do anything about [such a waiver] because you waive all judicial review." Id.
349. Indeed, a Congressional Research Service report concluded that there are no other waiver or suspension provisions that contain such an extensive delegation of authority. Viña & Tatelman, supra note 33, at 2-3. The report noted that other statutory provisions contained equally broad delegations of waiver authority, but that in all of those cases, qualifications (such as national security requirements) or reporting requirements functioned as limitations on the authority. Id. at 3.
350. Mistretta v. United States, 488 U.S. 361, 372-73 (1989).
351. Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 127 (D.D.C. 2007).
352. Id. at 128.
353. REAL ID Act of 2005 § 102(c)(1), reprinted in 8 U.S.C. § 1103 note (2006) (Improvement of Barriers at Border).
354. Id.
355. Loving v. United States, 517 U.S. 748, 772-73 (1996);
356. Clinton v. City of New York, 524 U.S. 417, 445 (1998).
357. Loving, 517 U.S. at 772-73.
358. See Defenders of Wildlife, 527 R Supp. 2d at 129 ("When Congress legislates regarding foreign affairs or immigration control, 'it is not dealing alone with a legislative power. It is implementing an inherent executive power.'"
359. (quoting Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950)));
360. see also Save Our Heritage Org. v. Gonzales, 533 F. Supp. 2d 58, 63 (D.D.C 2008);
361. County of El Paso v. Chertoff, EP-08-CA-196-FM, 2008 U.S. Dist. LEXIS 83045, at *8 (W.D. Tex. Aug. 29, 2008);
362. Sierra Club v. Ashcroft, No. 04-CV-0272, 2005 U.S. Dist. LEXIS 44244, at *22 (S.D. Cal. Dec. 12, 2005).
363. Loving, 517 U.S. at 772-73; Clinton, 524 U.S. at 445.
364. Brief for William D. Araiza et al. as Amici Curiae Supporting Petitioners at 8, Defenders of Wildlife v. Chertoff, 128 S. Ct. 2962 (2008) (No. 07-1180)
365. [hereinafter Defenders of Wildlife Araiza Brief], available at http://www.defenders.org/resources/publications/programs-and-policy/ in-the-courts/border/scholars-amicus-brief-dhs-waiver-challenge.pdf.
366. Id.
367. U.S. CONST, art. I, § 7.
368. INS v. Chadha, 462 U.S. 919, 951 (1983).
369. Clinton, 524 U.S. at 439 (quoting Chadha, 462 U.S. at 951).
370. 524 U.S. at 438. Although the Clinton Court rejected an act by the President that was legislative in nature, it did so on Presentment Clause grounds, not nondelegation grounds.
371. 462 U.S. 919 (1983).
372. Id. at 951.
373. U.S. CONST, art. I, § 1.
374. Chadha, 462 U.S. at 952. The Court noted that "quasi- legislative" actions, including agency rule-making, did not constitute an exercise of legislative power, because that administrative activity "cannot reach beyond the limits of the statute that created it." Id. at 953 n.16.
375. Defenders of Wildlife Petition, supra note 151, at 21.
376. 143 U.S. 649 (1892).
377. Id. at 693-94 ("The true distinction... is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the later no valid objection can be made.").
378. See also Clinton v. City of New York, 524 U.S. 417, 442 (1998).
379. Marshall Field, 143 U.S. at 693. The Court further noted that: Legislative power was exercised when congress declared that the suspension should take effect upon a named contingency. What the president was required to do was simply in execution of the act of congress. It was not the making of law. He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect. Id.
380. See Defenders of Wildlife Petition, supra note 151, at 21;
381. Defenders of Wildlife Araiza Brief, supra note 236, at 19-22.
382. Marshall Field, 143 U.S. at 693.
383. INS v. Chadha, 462 U.S. 919, 952 (1983).
384. Defenders of Wildlife Araiza Brief, supra note 236, at 19.
385. See Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 124 (D.D.C 2007).
386. See Byrd v. Raines, 956 R Supp. 25,35 (D.D.C. 1997) (arguing that the President's use of power under the Line Item Veto Act, which "unilaterally effects a repeal of statutory law such that the bill he signed is not the law that will govern the Nation," is "precisely what the Presentment Clause was designed to prevent").
387. See Mistretta v. United States, 488 U.S. 361, 373-74 (1989) (noting that the Court had "upheld, again without deviation, Congress' ability to delegate power under broad standards" after invalidating two statutes as excessive delegations in 1935).
388. See Jack Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61, 145-48 (2006);
389. Camas J. Hubenthal, American Trucking v. EPA: Unjustified Revival of the Nondelegation Doctrine, 23 ENVIRONS ENVTL. L. & POL'Y J. 17, 22 (2000).
390. U.S. CONST, art. III, § 1.
391. Ex parte McCardle, 74 U.S. 506, 512-13 (1868);
392. Sheldon v. Sill, 49 U.S. 441, 448-49 (1850). A review of Congress's authority to remove jurisdiction from the federal courts to hear certain types of cases is beyond the scope of this Article. For discussion of the constitutionality of jurisdiction-stripping,
393. see, for example, Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205 (1985);
394. Akhil Reed Amar, Article III and the Judiciary Act of 1789: The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. PA. L. REV. 1499 (1990);
395. Lloyd C Anderson, Congressional Control Over the Jurisdiction of the Federal Courts: A New Threat to James Madison's Compromise, 39 BRANDEIS L.J. 417 (2000);
396. Martin H. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 11 Nw. U. L. REV. 143 (1982);
397. Lawrence Gene Sager, Foreword, Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17 (1981).
398. 486 U-S. 592 (1988).
399. See James E. Pfander, Federal Supremacy, State Court Inferiority, and the Constitutionality of Jurisdiction-Stripping Legislation, 101 Nw. U. L. REV. 191, 193-94 (2007);
400. see also Constitution Restoration Act of 2005, H.R. 1070, 109th Cong. (2005) (proposing to remove appellate jurisdiction from the Supreme Court to hear cases involving a government officer's acknowledgement of religious beliefs);
401. Marriage Protection Act of 2005, H.R. 1100, 109th Cong. (2005) (proposing to remove jurisdiction from the Supreme Court and lower federal courts to hear challenges to provisions of the Defense of Marriage Act);
402. Sanctity of Life Act of 2005, H.R. 776, 109th Cong. (2005) (proposing to remove jurisdiction over challenges to certain state and local laws restricting abortions);
403. Pledge Protection Act of 2004, H.R. 2028, 108th Cong. (2004) (proposing to remove jurisdiction over challenges to the validity of the Pledge of Allegiance).
404. See Kaufman, supra note 203, at 1521-22.
405. Nat'l Coal. to Save Our Mall v. Norton, 269 F.3d 1092, 1095 (D.C. Cir. 2001).
406. 269 F.3d 1092.
407. Id. at 1093.
408. Id. at 1094.
409. Kaufman, supra note 203, at 1521-22.
410. Id.
411. See Peter H. Aranson, Ernest Gellhorn & Glen O. Robinson, A Theory of Legislative Delegation, 68 CORNELL L. REV. 1, 14 (1982);
412. Donald A. Dripps, Delegation and Due Process, 1988 DUKE L.J. 657, 658-59 (1988).
413. Aranson et al., supra note 269, at 14.
414. 337 R Supp. 737 (D.D.C. 1971).
415. Pub. L. No. 91-379, 84 Stat. 799 (1970) (expired 1974).
416. Amalgamated Meat Cutters, 337 R Supp. at 760-62.
417. see also South Dakota v. Dep't of the Interior, 69 F.3d 878 (8th Cir. 1995), vacated, 519 U.S. 919 (1996) (vacated after the Secretary of the Interior promulgated a new rule providing for judicial review).
418. Some commentators have argued that the Supreme Court's decision in Hampton v. Mow Sun Wong, 426 U.S. 88 (1976), provided support for the due process approach to delegation, but only obliquely.
419. Aranson et al., supra note 269, at 14 n.59.
420. The Supreme Court has noted elsewhere that "[p]rivate rights are protected by access to the courts to test the application of the policy in the light of these legislative declarations." Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946).
421. County of El Paso Petition, supra note 149, at 13.
422. But see Touby v. United States, 500 U.S. 160, 170 (1991) (Marshall, J., concurring) (noting that "judicial review perfects a delegated-lawmaking scheme by assuring that the exercise of such power remains within statutory bounds," and arguing that where violations of an administrative scheme carry criminal penalties, judicial review should be required).
423. Letter from Chief Justice John Jay and Associate Justices to President George Washington (Aug. 8, 1793), in 3 THE CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY 488 (Henry P. Johnston, ed. 1891).
424. 2 U.S. 408 (1792).
425. See id. at 409.
426. See id. at 410 ("[B]y the constitution, neither the Secretary of War, nor any other executive officer, nor even the legislature, are authorized to sit as a court of errors on the judicial acts or opinions of this court.").
427. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218 (1995) ("Congress cannot vest review of the decisions of Article UI courts in officials of the Executive Branch.").
428. United States v. Klein, 80 U.S. 128 (1872).
429. 514 U.S. 211.
430. 15 U.S.C. § 78aa-1(b) (2006).
431. Lampf v. Gilbertson, 501 U.S. 350 (1991).
432. See Plaut, 514 U.S. at 218-19.
433. Stop H-3 Ass'n v. Dole, 870 R2d 1419, 1432 (9th Cir. 1989)
434. (quoting Friends of the Earth v. Weinberger, 562 R Supp. 265, 270 (D.D.C. 1983));
435. accord Plaut, 514 U.S. at 214.
436. Natural Res. Def. Council, Inc. v. Winter, 527 R Supp. 2d 1216, 1236-38 (C.D. Cal. 2008). The court avoided ruling on the constitutionality of the President's exemption because it concluded that the injunction "stands firmly on NEPA grounds."
437. Id. at 1238.
438. Cf. Ira Bloom, Prisons, Prisoners, and Pine Forest: Congress Breaches the Wall Separating Legislative from Judicial Power, 40 ARIZ. L. REV. 389, 390 (1998) ("[F]inality has long been critical to the role of the judiciary and to curtailing the threat presented by executive or legislative revision. Forty years ago, the Court underscored the principle that judicial decisions cannot be revised or overturned by Congress or the executive branch.").
439. Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992).
440. Winter, 527 R Supp. 2d at 1232. NRDC did not challenge the constitutionality of Section 1506.11 on its face.
441. Id.
442. CEQ Letter, supra note 89, at 233.
443. See, e.g., Julia C. Webb, Note, Responsible Response: Do the Emergency and Major Disaster Exceptions to Federal Environmental Laws Make Sense from a Restoration and Mitigation Perspective?, 31 WM. & MARY ENVTL. L. & POL'Y REV. 529, 552 (2007) (describing waivers imposed in the wake of Hurricane Katrina, including EPA's waiver of regulations regarding gasoline and diesel in all 50 states, and a waiver allowing local authorities to burn vegetative debris without prior notice).
444. See Richard J. Lazarus, Essay, Human Nature, the Laws of Nature, and the Nature of Environmental Law, 24 VA. ENVTL. L.J. 231, 240, 244-45 (2001 ) ("Environmental lawmaking within this constitutional framework and through these political processes is ... systematically disadvantaged. It constantly runs into obstacles, sometimes pitting one branch of government against another, sometimes prompting conflicts between different parts of the same branch, and just as often generating conflicts between competing sovereigns ....");
445. Robert V. Percival, Separation of Powers, the Presidency and the Environment, 21 J. LAND RESOURCES & ENVTL. L. 25, 25 (2001) ("Competition between executive, legislative and judicial actors has been particularly intense in the environmental policy area.").
446. Lazarus, supra note 3, at 745-48.
447. See, e.g., David A. Dana, Existence Value and Federal Preservation Regulation, 28 HARV. ENVTL. L. REV. 343, 372-73 (2004) ("[A]gency rulemaking and enforcement processes are influenced by the information offered by groups in the general population, and the ability of a group to harness and present information is, presumably, not unrelated to the size of the group and intensity of the preferences of its members."
448. Id. at 372 n.72);
449. Peter P. Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 YALE L. & POL'Y REV. 67, 102 (1996).
450. But see William W. Buzbee, Brownfields, Environmental Federalism, and Institutional Determinism, 21 WM. & MARY ENVTL. L. & POL'Y REV. 1, 32 (1997) (identifying electoral accountability as an influence on politicians' choices, particularly with respect to the passage of major environmental laws in the late 1960s and early 1970s).
451. See A. Dan Tarlock, Is There a There There in Environmental Law?, 19 J. LAND USE & ENVTL. L. 213, 217 (2004).
452. Dripps, supra note 269, at 668 (citing Aranson et al., supra note 269, at 64).
453. See Dudley, supra note 4, at 283-84.
454. See Id. at 303-04. An executive officer may also be "captured" by her agency's own mission.
455. See id.
456. HERBERT KAUFMAN, THE ADMINISTRATIVE BEHAVIOR OF FEDERAL BUREAU CHIEFS 137 (1981) ("People in government and out want to influence them not only because of what they are legally empowered to do but also because their positions lend them stature and legitimacy and visibility that magnify their authority and their publicity value.").
457. See 16 U.S.C. § 1456(c)(1)(B) (2006).
458. See, e.g., Natural Res. Def. Council, Inc. v. Winter, 518 F.3d 658, 686 (9th Cir. 2008) (raising question as to whether CEQ acted arbitrarily and capriciously), rev'd, 129 S. Ct. 365 (2008).
459. See ROBERT G. DREHER, GEORGETOWN ENVTL. LAW & POL'Y INST., GEORGETOWN UNIV. LAW CTR., NEPA UNDER SIEGE 14-15 (2005), available at http://www.law.ge-orgetown.edu/gelpi/research-archive/nepa/NEPAUnderSiegeFinal. pdf.
460. Id.; e.g., Calvert Cliffs' Coordinating Comm., Inc. v. U.S. Atomic Energy Comm'n, 449 R2d 1109(1971).
461. However, the federal courts are admittedly an imperfect arena for the vindication of environmental grievances. Legal doctrines developed by the courts, such as Article III standing, property law, the dormant commerce clause, and corporate law, all limit courts' consideration of environmental claims. See Lazarus, supra note 3, at 749-57;
462. Robert V. Percival, "Greening" the Constitution - Harmonizing Environmental and Constitutional Values, 32 ENVTL. L. 809, 829-56 (2002) (describing the Supreme Court's recent constitutional jurisprudence as posing barriers to environmental protection efforts). Environmental interests face something of a triple bind: they need the courts to stay open to compensate for environmental law's relative disadvantage in the political branches, but the courts are unlikely to reach the merits of environmental claims; when they do reach the merits, courts are likely to misunderstand the nature of environmental injuries and give environmental interests short shrift. The fact that courts do not quite live up to their historical role in the realm of environmental protection, however, does not make it acceptable for Congress to rearrange the balance of powers within environmental laws however it sees fit.
463. Clinton v. City of New York, 524 U.S. 417, 419 (1998)
464. (quoting INS v. Chadha, 462 U.S. 919, 951 (1983));
465. see also U.S. CONST. Art. I, § 7.
466. Mistretta v. United States, 488 U.S. 361, 372 (1989).
467. See Dudley, supra note 4, at 296-97.
468. See id.
469. See Ehrlich, supra note 47, at 301-02 (arguing that Congress should encourage federal agencies to more fully utilize CEQ's emergency exemption provision).
470. Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946) (noting that "[t]he legislative process would frequently bog down if Congress were constitutionally required to appraise beforehand the myriad situations to which it wishes a particular policy to be applied and to formulate specific rules for each situation").
471. See Webb, supra note 294, at 548-51.
472. Memorandum from Horst G. Greczmiel, Assoc. Dir. for NEPA Oversight, CEQ, to Federal NEPA Contacts, Emergency Actions and NEPA (Sept. 8, 2005), available at http://gc.energy.gov/NEPA/nepa-documents/TOOLS/GUIDANCE/Volume1/4-16- emergencyguidance.stept05.pdf. Recognizing the potential conflict between emergency responses and long-term environmental protection, Greczmiel cautioned: This is the time to respond and use NEPA to facilitate, not slow down or hinder, actions necessary to preserve life and resources. It is also the time to demonstrate our continuing commitment to environmental stewardship by ensuring that response and revitalization activities do not inadvertently create unnecessary future environmental problems.
473. Id. at 2.
474. Id., Attachment 1 ("Emergency Alternative Arrangements under the National Environmental Policy Act"), at 2.
475. Robert T. Stafford Disaster Relief and Emergency Assistance Act (Disaster Relief Act of 1974), Pub. L. No. 93-288, 88 Stat. 143 (1974) (codified in scattered sections of 42 U.S.C).
476. See 42 U.S.C. § 5170a (2006) (permitting the President to coordinate federal, state, and local disaster relief responses and provide resources following a major disaster);
477. id. § 5170b (identifying specific disaster relief activities in which federal agencies may engage at the direction of the President);
478. id. § 5172 (permitting the President to make contributions to state and local governments for repair, restoration, reconstruction, or replacement of public and certain non-profit facilities damaged or destroyed by a major disaster);
479. id. § 5173 (authorizing the President, through federal agencies, to clear debris and wreckage from major disasters);
480. see also LUTHER, supra note 28, at 3.
481. See LUTHER, supra note 28, at 7-9.
482. S. 1765, 109th Cong. (2005).
483. See id. §§ 501, 502, 652;
484. see also LUTHER, supra note 28, at 7-8.
485. See Webb, supra note 294, at 548-53.
486. Mistretta v. United States, 488 U.S. 361, 372-73 (1989).
487. For example, the Secretary of the Army, whose goals focus on national defense, and the EPA Administrator, whose goals focus on environmental protection, both serve on the Endangered Species Committee. 16 U.S.C § 1536(e)(3) (2006).
488. See 5 U.S.C. § 701 (2006).
489. See Nixon v. Fitzgerald, 457 U.S. 731 (1982).
490. See Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992).
491. See 40 C.F.R. § 1508.12 (1978).
492. Presidential Exemption from the CZMA, supra note 90.
493. CEQ Letter, supra note 89.
494. 16 U.S.C. § 1536(g) (2006).
495. See REAL ID Act of 2005 § 102, reprinted in 8 U.S.C. § 1103 note (2006) (Improvement of Barriers at Border).
496. Compare Natural Res. Def. Council, Inc. v. Winter, 527 F. Supp. 2d 1216, 1228 (C.D. Cal. 2008) (rejecting the Navy's argument that its need to conduct training exercises constituted "emergency circumstances" on the ground that "[t]he Navy's current 'emergency' is simply a creature of its own making"), with Winter Petition, supra note 89, at 24-25 (arguing that an emergency may be foreseen as well as unforeseen, and that the fact that an actor contributed to an outcome does not mean that the resulting outcome is not an emergency).
497. 42 U.S.C. §§ 9607(b), (d) (2006).
498. National Oil and Hazardous Substances Pollution Contingency Plan, 53 Fed. Reg. 51,394, 51,396 (proposed Dec. 21, 1988) (emphasis added).
499. 16 U.S.C. § 1536(g) (setting out a lengthy set of procedural requirements for a general exemption);
500. id. § 1536(p) (setting out more lenient requirements where the President has identified an emergency and the need to prevent the "recurrence of... a national disaster and reduce the potential loss of human life").
501. See Robert Orsi, Comment, Emergency Exemptions from NEPA: Who Should Decide?, 14 B.C. ENVTL. AFF. L. REV. 481, 514-16 (1987) (proposing an expedited EIS process to be used in emergencies).
502. See id. at 515.
503. See id at 516.
504. REAL ID Act of 2005 § 102(c)(1), reprinted in 8 U.S.C. § 1103 note (2006) (Improvement of Barriers at Border).
505. 16 U.S.C. § 1536(g)(5).
506. County of El Paso Petition, supra note 149, at 13.
507. See Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992) ("Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the President to the provisions of the APA. We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion.").