It’s been a busy few months for the Donald Trump administration. Equally so for the Center for Biological Diversity, which will square off with the administration in a major challenge over environmental laws.
At the heart of the suit is the Congressional Review Act, a 1996 law that allows Congress to “disapprove” any recently passed regulation with a simple majority and the sitting president’s okay. With the help of Congress, the Trump administration employed the CRA to roll back 14 rules passed during the tail end of Barack Obama’s presidency. Before this year, the law was used only once.
The setting for the challenge is Alaska’s federally protected wildlife preserves. For a brief amount of time, predatory animals like bears and wolves were protected by a Department of Interior rule that prohibited specific hunting procedures on the preserves. In April, President Trump signed HJ 69 (a joint resolution) into law, repealing these protections and opening preserves to hunters who utilize what the plaintiffs call “cruel and ecologically harmful predator control practices.”
Those practices stirred a tug-of-war between hunting groups backed by the state of Alaska and the federal Fish and Wildlife Service, which manages the preserves. The FWS argues that baiting bears, killing bears and wolves and their offspring in their dens, shooting animals by air, and other practices that have been used in Alaska to control certain species are cruel and illegal in federal preserves.
The state of Alaska doesn’t see it that way. Like several states that earn lucrative revenue from big-game hunting, Alaska’s government wants to ensure plenty of travel opportunities for hunters. And that’s no surprise. Tourism is a $2.4 billion industry in Alaska, not including the fees the state gets from hunters.
And the state house feels a federal law that strictly controls how and where hunters can hunt on federal lands that the state cooperatively helps manage gets in the way of hunters. But to be truthful, it also got in the way of the state’s increasing efforts to try to take control of the management processes of federal preserves in the state.
Critics of the former rule also argued that it would force caribou and other prey to grow out of control, a point disputed by scientists in their testimony to the federal government prior to the rule’s implementation last August.
But the repeal of those protections isn’t the only thing that has critics of HJ 69 upset. It is how it was done. The CRA does more than repeal a rule. It makes it exceedingly difficult for agencies to make their own rules on related issues in the future. In short, argues the Center for Biological Diversity, it weakens the ability of agencies to manage their own territories, an issue that has been brought up in other CRA-related battles by outspoken senators.
The Center and its supporters hope the courts will deem the CRA unconstitutional and, in so doing, reverse the repeal of Alaskan wildlife protections.
Whether the courts agree that an instrument that has been in place for more than two decades and has been used by one previous administration (in a much more restrained manner) is unconstitutional is yet to be seen. Like it or not, the president and Congress are using tools at their disposal — put in place by legal precedent.
But resolving this dispute is unlikely to stop another battle, one that is just as politically charged and environmentally concerning: the ideological conflict between states and those who see federal lands as public endowments meant to protect the country’s biological safe-keeping.
As the National Wildlife Refuge Association predicted recently, passing HJ 69 and rolling back wildlife protections doesn’t give Alaska more control over its refuges. But it does mean the FWS “will have to spend more and more time and money to fight the state’s efforts to impose Intensive Predator Management on refuges throughout Alaska,” combined with “frivolous lawsuits” by the state in an effort to impose management techniques that were never part of the ethical strategies behind protected wildlife preserves.
Nor is Alaska the only state in which the Center is fighting when it comes to what it terms “expanded killing of native wildlife.” It also lodged a lawsuit concerning similar techniques being used in Idaho and maintains that the need for ecological diversity includes the need for predators in the wild.
“Wildlife Services is stuck in the barbarism of the 19th century, before the full value of predators in ecosystems was understood,” said Erik Molvar, executive director of Western Watersheds Project, which is also backing the lawsuit.
In regard to HJ 69, though, there is at least one bright spot for environmentalists: Clearly not everyone who voted on the repeal agreed with its passage.
The House passed the repeal in a 52-47 vote, hardly a slam-dunk for proponents. Those who voted to uphold the protections likely feared an eventual fallout from repeatedly using the CRA to repeal rules for which voters previously expressed support and for issues they would likely want Congress to address in future years.
The Center for Biological Diversity’s focus on the CRA and its efforts to force the issue into the courts may mean that Congress will be called to reconsider using this tool that some argue not only ties the hands of agencies, but also dilutes the voice of voters.