More Than Five Years Later, The Bush Administration Is Still Losing Environmental Cases

I previously noted that the record of the Bush administration in defending its rulemaking decisions was dangerously near the Mendoza Line. Indeed, even four years after Bush left office, it was continuing to lose decisions. Now, we can say that the record has extended to five years. Last week, in National Parks Conservation Association v. Jewell, the United States District Court for the District of Columbia vacated the 2008 rule issued by the Office of Surface Mining Reclamation and Enforcement, which had itself revised the 1983 stream buffer zone rule.

The ground for the vacatur was simple: OSM failed to consult with the Fish and Wildlife Service under the Endangered Species Act before replacing the 1983 rule with the 2008 rule. Since the duty to consult is triggered by a very lenient "may effect" standard, it was clear that the 2008 rule was on very weak ground.