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[Senate Prints 107-76]
[From the U.S. Government Publishing Office]

 
107th Congress                 COMMITTEE PRINT                   S. Prt.
  2d Session                                                     107-76
_______________________________________________________________________

                                     

                          REWRITING THE RULES

                               __________

                              R E P O R T

                              Prepared by

                           THE MAJORITY STAFF

                                 of the

         COMMITTEE ON GOVERNMENTAL AFFAIRS UNITED STATES SENATE

[GRAPHIC] [TIFF OMITTED] TONGRESS.#13

                            October 24, 2002

                       U. S. GOVERNMENT PRINTING OFFICE
82-471                          WASHINGTON : 2002
___________________________________________________________________________
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                   COMMITTEE ON GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 FRED THOMPSON, Tennessee
DANIEL K. AKAKA, Hawaii              TED STEVENS, Alaska
RICHARD J. DURBIN, Illinois          SUSAN M. COLLINS, Maine
ROBERT G. TORRICELLI, New Jersey     GEORGE V. VOINOVICH, Ohio
MAX CLELAND, Georgia                 THAD COCHRAN, Mississippi
THOMAS R. CARPER, Delaware           ROBERT F. BENNETT, Utah
JEAN CARNAHAN, Missouri              JIM BUNNING, Kentucky
MARK DAYTON, Minnesota               PETER G. FITZGERALD, Illinois
           Joyce A. Rechtschaffen, Staff Director and Counsel
                  Laurie R. Rubenstein, Chief Counsel
                       Kathryn J. Seddon, Counsel
                     Cynthia Gooen Lesser, Counsel
                       Holly A. Idelson, Counsel
               David M. Berick, Professional Staff Member
              Richard A. Hertling, Minority Staff Director
                     Darla D. Cassell, Chief Clerk
            Adam R. Sedgewick, Assistant to the Chief Clerk

                            C O N T E N T S

                                 ------                                

                                                                   Page

EXECUTIVE SUMMARY................................................     1

INTRODUCTION AND BACKGROUND......................................     6

FINDINGS AND CONCLUSIONS.........................................     8

I. The Card Memo.................................................     8

  A. What Happened...............................................     8

  B. Legal Concerns..............................................    11

  C. Public Participation........................................    14

II. The Bush Administration's Attempts to Change Three Rules.....    14

  A. Roadless Area Conservation Rule.............................    15

    (1) The Rule's Development...................................    18

    (2) Department Delays and Reviews Rule.......................    19

    (3) Legal Strategy...........................................    21

    (4) GForest Service Implementing Policies Less Protective 
  than Rule......................................................    27

  B. Hardrock Mining (``3809'') Regulation.......................    29

    (1) The Rule's Development...................................    32

    (2) Department Considers Suspension Options..................    35

    (3) Changes Address Industry Concerns........................    39

  C. Arsenic in Drinking Water Standard..........................    41

    (1) The Rule's Development...................................    43

    (2) Arsenic Rule Targeted for Change.........................    45

    (3) Additional Study and Decision to Retain Standard.........    52

                          REWRITING THE RULES

                              ----------                              

                           EXECUTIVE SUMMARY

    On January 20, 2001, the crowd that was gathered at the 
Capitol for President Bush's Inauguration had barely dispersed 
when the President's Chief of Staff, Andrew H. Card, Jr., took 
one of the most far-reaching and significant steps of the 
administration's early days: He issued a directive to all 
Federal agency heads to immediately freeze the Federal 
regulatory process in its tracks. Although couched in terms 
more familiar to the bureaucracy than the citizenry, the so-
called Card memo had the potential to diminish the health and 
safety of tens of millions of Americans.
    Virtually all Federal agencies issue rules and regulations 
to flesh out and implement laws passed by Congress. From the 
school bus and gas pipeline safety rules issued by the 
Department of Transportation, to the drinking water and clean 
air regulations issued by the Environmental Protection Agency 
(EPA), to drug safety provisions put out by the Food and Drug 
Administration, Federal regulations and their enforcement are 
what ensure that Americans' environment, safety, and health are 
protected.
    Because of the tremendous impact these rules have on 
individuals and businesses alike, agencies must go through a 
structured, open and transparent process before issuing them. 
That process--known as ``notice and comment'' rulemaking--
requires agencies to notify the public of their intent to issue 
rules, to allow the public to comment on the proposals, and 
then to justify, in writing and on the record, why the agencies 
decided to do what they did.
    By Inauguration Day 2001, literally hundreds of regulations 
had gone through this process, had been published in the 
Federal Register--the official annals of Federal agencies--and 
were ready to go into effect. Yet without any notice to the 
public or opportunity for interested parties to comment, the 
Card memo directed agencies to hold in abeyance a slew of 
regulations until they could be reviewed by Bush Administration 
political appointees.
    Although most of these rules passed quickly through the new 
administration's political filter, some very important ones did 
not. A number of regulations, some of which had been subjected 
to years of public scrutiny and deliberation by government 
agencies, were put through an unusual and, in some cases, time-
consuming second look by the Bush Administration. In some of 
those cases, the second look amounted to a death sentence for 
the rule.
    Troubled by the Card memo's government-wide interference 
with the regulatory process and the prospect of a reversal of 
so many regulations, Senator Joseph I. Lieberman asked his 
Governmental Affairs Committee staff to look into the 
matter.\1\ Specifically, he charged his staff with reviewing 
the Card memo and its effect on three important rules that were 
final before the Bush Administration came into office:
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    \1\ At the time he initiated the inquiry (in March 2001), Senator 
Lieberman served as the Governmental Affairs Committee's Ranking 
Minority Member. On June 6, 2001, he became the Committee's Chairman. 
The inquiry was conducted pursuant to the Committee's jurisdiction ``to 
study or investigate . . . the efficiency and economy of operations of 
all branches and functions of the Government with particular references 
to the operations and management of Federal regulatory policies and 
programs.'' S. Res. 54, 107th Cong., 1st Sess. (2001) (ENACTED). The 
report is based on the review of thousands of pages of agency documents 
related to initial administration decisions to suspend, delay, 
reconsider, or modify these regulations. Committee staff began their 
review of these documents during the Spring and Summer of 2001. The 
events of September 11, 2001, interrupted the staff's inquiry and 
refocused Committee resources on homeland security issues and 
oversight, postponing the release of this report until now.

    L  (1) The Department of Agriculture's rule conserving 
roadless areas in national forests: In January 2001, the U.S. 
Department of Agriculture (USDA) issued a rule prohibiting most 
road construction and logging in roadless areas of national 
forests. The rule, which had been in development since early 
1998, sought to protect against piecemeal Forest Service 
decisions that were altering and fragmenting ecologically 
valuable areas. The rule sought to balance the need for 
appropriate development with the reality that our national 
forests contain important watersheds and fragile ecosystems 
that can be damaged by road development and logging. The rule 
did not impose an absolute ban. Exceptions included the removal 
of timber and the construction of roads so as to reduce the 
risk of wildfires and to protect from the loss of life and 
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property.

    L  (2) The Department of the Interior's (DOI) rule 
regulating hard rock mining on public lands: In November 2000, 
DOI issued a rule regulating hard rock mining on public lands. 
The rule had been in development for almost a decade and sought 
to mitigate hard rock mining's harmful effects on soil, air, 
ground water, surface water, land-based and water-based 
vegetation, and wildlife.

    L  (3) The Environmental Protection Agency's rule capping 
the permissible level of arsenic in drinking water: It has long 
been known that arsenic in drinking water poses a wide variety 
of health risks. In January 2001, after nearly 2 decades of 
study and years of development, EPA issued a rule lowering the 
permissible limit for arsenic in drinking water. The rule 
brought the U.S. standard in line with that set by the World 
Health Organization and followed by the European Union.

    The development of each of these three rules involved 
extensive public comment and scrutiny, and each was accompanied 
by an on-the-record agency justification of its actions. 
Nonetheless each was promptly subjected to the new 
administration's second guessing. In the first two cases, the 
Bush Administration ultimately weakened or otherwise undermined 
the rules. In the third, the rule initially adopted after years 
of scientific study was challenged, but ultimately retained 
after months of additional--and unnecessary--study.
    In the course of its inquiry, Committee staff reviewed 
thousands of documents related to the agencies' initial 
decisions. The story the documents tell is one of 
administration actions characterized by a troubling lack of 
respect for long established regulatory procedures--an attempt 
to give short shrift to public input when possible, and to 
discount the science or record supporting the rules under 
review.
    Committee Majority staff's specific conclusions are 
outlined below:

        Implementation of the Card memo was of questionable 
        legality and gave an early warning of the 
        administration's lack of respect for the process of 
        developing regulations, including those providing a 
        variety of important environmental and public 
        protections.

    Under governing law, an agency may not adopt a proposal to 
delay or change a rule's effective date without first giving 
the public an opportunity to comment on the proposal. But when 
the Office of Management and Budget (OMB) supplied Federal 
agencies with a model Federal Register notice to implement the 
Card memo, it suggested that the agencies not seek public 
comment, citing generally inapplicable exemptions to the public 
``notice and comment'' requirement. In disregarding these legal 
requirements to open administrative actions to public review, 
the Bush Administration set a dangerous precedent. It treated 
an important legal requirement as an annoyance and an obstacle, 
rather than a fundamental part of the framework that makes 
regulatory change fair, transparent, and orderly.

        The administration's decision to revisit the three 
        rules at issue appears based on a pre-determined 
        hostility to the regulations rather than a documented, 
        close analysis of the rules or the agencies' basis for 
        issuing them.

    There is no bar to agencies changing existing rules, but 
they may do so only by going through the same regulatory 
process used for adopting rules in the first place. If they 
ultimately choose to change the rule, agencies must justify the 
reasons publicly and with reference to a specific record.
    Staff's review of the documentation of three agencies' 
initial decisions to propose to suspend or otherwise undermine 
the rules under review suggests a disregard for analysis as to 
whether change was needed. At the Departments of the Interior 
and Agriculture, the agencies approached the decision to pursue 
suspension of the rules almost exclusively as a question of 
``how,'' not ``whether.'' At EPA, the documents suggest no 
substantive analysis of the science underlying the rule before 
the administrator proposed to suspend it. Again, the suggestion 
that the results of a lengthy and open process are to be 
reopened without any analysis indicating the error of the 
original result, at a minimum, speaks volumes about the 
administration's respect for the value of the rulemaking 
process and the public's role in it.

        The administration, by choosing not to defend the 
        Agriculture Department's rule protecting roadless areas 
        in national forests, used a third-party lawsuit to 
        undermine the rule without taking public responsibility 
        for its actions.

    Before USDA's rule protecting roadless areas in national 
forests appeared in the Federal Register, groups opposing the 
rule filed suit to overturn it in Federal court. USDA--which 
had decided to postpone the rule's effective date without any 
apparent analysis, research, or systematic review of either the 
substance or procedure associated with the roadless rule, and 
considered options for how to rescind or revise the rule with 
only a bare outline of identified deficiencies--took the 
opportunity given it by the court challenge to abandon the rule 
by simply choosing not to defend it in court. The use of 
stealth tactics rather than an above-board, open rulemaking 
process was an unacceptable circumvention of the law's 
requirements for public participation. The effective reversal 
through acquiescence in litigation allowed the administration 
to adopt its own policies and management directives reversing 
the rule's prohibitions on timber harvesting and road 
construction without the scrutiny and comment that should have 
been afforded to the public--and without the assumption of 
responsibility for its actions that flows from a public and 
transparent decision on the record.

        The Bush Administration's proposal to suspend the hard 
        rock mining rule was not based on documented 
        substantive analysis, and the ultimate decision to 
        rescind parts of the rule will allow mining projects 
        that pose unwarranted environmental and health threats 
        to continue.

    In contrast to the two other rules reviewed by Majority 
staff, DOI's hard rock mining rule was not subject to the Card 
memorandum's blanket 60-day freeze because it was already in 
effect when the Bush Administration came into office. 
Nevertheless, it too was targeted for the waste pile. As in the 
case of the roadless rule, Interior Department documents reveal 
no substantive analysis of the existing rule that would set the 
predicate for a new approach. Majority staff can conclude only 
that DOI reached its decision based on factors other than 
reasoned agency analysis, such as a predetermined intent to 
take such an action or the influence of continuing opposition 
to the rule by those concerned about mining revenues.
    In this case, DOI sought public comment on its proposed 
suspension of the rule. Although the public overwhelmingly 
opposed the proposed rollback, DOI adopted a revised version of 
the rule--one that eliminated key provisions previously 
identified as objectionable to the mining industry. 
Furthermore, DOI concluded that existing laws and regulations 
(most of which had been on the books for more than 20 years) 
would be adequate to protect the land, its resources, and the 
water. In Majority staff's judgment, this is highly unlikely, 
as those tools were available during the period that gave rise 
to the concerns about hardrock mining's environmental and 
health threats in the first place. In fact, a growing consensus 
that these requirements were not effectively protecting the 
environment prompted the Clinton Administration to issue a new 
hardrock mining rule.

        EPA conducted a time-consuming and unnecessary review 
        of the decades-in-the-making rule limiting arsenic in 
        drinking water.

    EPA's rule on levels of arsenic permitted in drinking water 
nearly suffered a fate similar to DOI's hard rock mining rule. 
When the new administration entered office, EPA career staff 
briefed Administrator Christine Todd Whitman in support of the 
Clinton-issued rule, some stakeholders reiterated their 
concerns about compliance costs and uncertainties about health 
effects, and EPA consulted with White House staff. 
Administrator Whitman then announced her decision to propose 
withdrawing the rule, reportedly telling representatives of 
water agencies that she would ``replace sound-bite rule making 
with sound-science rule making.''
    Although Administrator Whitman announced that she wanted to 
be ``sure that the conclusions about arsenic in the rule are 
supported by the best available science,'' Majority staff's 
review casts doubt on the substantiveness of EPA's decision to 
reconsider the rule. EPA documents generated prior to 
Administrator Whitman's announcement reflect no visible 
comprehensive analysis, work product, or narrative identifying 
the nature of the deficiencies in the science used to establish 
the Clinton-issued rule; they are instead limited to brief 
staff notes with questions regarding cost/benefit analysis and 
scientific studies.
    EPA is required by law to use the best available, peer-
reviewed science studies in setting standards under the Safe 
Drinking Water Act of 1976 (SDWA). Thus, the new 
administrator's criticism of the previous administration's 
``sound-bite'' rule making was a serious allegation certain to 
be given credence due to her position. It should not have been 
lodged without appropriate analysis supporting a conclusion 
regarding deficiencies in the science.
    In fact, despite the administrator's protestation about the 
previous administration, it was the Bush Administration that 
seemed to put sound science behind other considerations. In 
April 2001, OMB staff, in the presence of staff from the White 
House Domestic Policy Office and the Council of Economic 
Advisors, pressed the EPA to dilute the arsenic standard, even 
though the SDWA assigns EPA, not OMB, the responsibility for 
setting contaminant levels for drinking water. The Majority 
Staff is troubled by OMB's role in pressuring the EPA to reject 
its own expert judgment regarding the science and the 
application of the law.
    In September 2001, an additional study by the National 
Academy of Sciences confirmed the Academy's earlier conclusion 
that the available science required implementing a downward 
revision of the standard as ``promptly as possible.'' After 9 
months of review, the Bush Administration ended up precisely 
where the Clinton Administration did: With the view that the 
Clinton Administration's standard would stand. In light of 
these results, and the apparent absence of a rational basis for 
reopening the rule at the outset, Majority staff question why 
it was necessary to subject the rule to months of uncertainty 
and review.

                               * * * * *

    The administration's future intentions for each of these 
rules is unclear. The USDA, which promised but did not initiate 
a new rulemaking on roadless areas in national forests, has 
issued a summary of comments received regarding the management 
of roadless areas. DOI has solicited comments on possible 
additional changes to the hardrock mining rule and established 
a task force to review bonding requirements on a variety of 
programs, including mining. And EPA has advised a court of its 
continuing review of its arsenic standard. Any further actions 
which may be undertaken by the agencies must be in full 
compliance with the spirit and the letter of the law and must 
not further erode environmental protections or rulemaking 
procedures.

                      INTRODUCTION AND BACKGROUND

    Typically, when a new law is born, the public is greeted 
with familiar images of Members of Congress crowding the 
chamber to vote, and perhaps a Rose Garden signing ceremony by 
the President. As much as these moments help shape our 
understanding of our democracy, they do not mark the 
culmination of the democratic process. In many cases, they are 
only the beginning; when legislative work ends, the often 
laborious, complex--and critically important--Federal 
rulemaking process begins.
    Laws, written and passed by the Congress, lay out the 
general architecture of government policy on an issue. Once 
laws are enacted, Federal agencies--the components of the 
Executive Branch--then must shape specific Federal programs to 
comply with the laws through rules implementing and 
interpreting the meaning of Congress' directives. Such 
rulemaking is a practical necessity; lawmakers simply cannot 
anticipate every question that will arise with respect to 
administering a law, and it would not be practical to return to 
Congress with each question as it arises.
    But the Executive Branch latitude in writing the rules is 
far from unfettered. As the courts have well explained, when 
Congress confers such decisionmaking authority upon agencies, 
it must ``lay down by legislative act an intelligible principle 
to which the person or body authorized to [act] is directed to 
conform.'' \2\ The degree of acceptable agency discretion 
varies according to the scope of the power conferred by 
Congress.\3\
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    \2\ Whitman v. American Trucking Associations, Inc., 531 U.S. 457, 
472 (2001), quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 
394, 409 (1928).
    \3\ Id. at 475, citing Loving v. United States, 517 U.S. 748, 772-
773 (1996).
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    It is the responsibility of agencies to be diligent in 
developing these devilish details--and to ensure they 
faithfully represent the will of the people expressed in the 
laws passed by Congress. Agencies are not free to redesign the 
laws Congress passes or simply initiate their own programs in 
areas where Congress has not authorized them to act; rather, 
all rules must flow from the agencies' authorization to act 
under a preexisting statute. These laws include the enabling 
statutes for the various Federal agencies, which lay out their 
general powers and responsibilities, as well as more detailed 
directives on distinct policy issues. If a rule is challenged 
in court, the judicial review examines whether the rule is 
faithful to the laws passed by Congress.\4\ Courts reviewing a 
rule that is challenged will generally apply a standard called 
the ``arbitrary-and-capricious'' test.\5\ This test focuses on 
four questions: ``(1) whether the rulemaking record supports 
the factual conclusions upon which the rule is based; (2) the 
`rationality' or `reasonableness' of the policy conclusions 
underlying the rule; (3) the extent to which the agency has 
adequately articulated the basis for its conclusions; and (4) 
the validity of the agency's statutory interpretations.'' \6\
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    \4\ Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 
(1971).
    \5\ Section 706(2) of the Administrative Procedure Act (APA) 
provides that the reviewing court shall: ``hold unlawful and set aside 
agency action, findings, and conclusions found to be--(A) arbitrary, 
capricious, an abuse of discretion, or otherwise not in accordance with 
law; (B) contrary to constitutional right, power, privilege, or 
immunity; (C) in excess of statutory jurisdiction, authority, or 
limitations, or short of statutory right; . . .'' 5 U.S.C. Sec. 706(2).
    \6\ Jeffrey S. Lubbers, A Guide to Federal Agency Rulemaking, 318 
(Third Edition, 1998) (hereinafter ``Federal Agency Rulemaking'').
---------------------------------------------------------------------------
    In addition to the substantive laws governing an agency's 
mandate and the specific program to be administered, agencies 
must follow the Administrative Procedure Act (APA), passed by 
Congress in 1946.\7\ The APA lays out the basic procedural 
steps that the Executive Branch must follow in issuing rules. 
Under the APA, the heart of the most common type of rulemaking 
is known as the ``notice and comment'' process.\8\ First, an 
agency that plans to change a rule or write a new one must 
publish a notice of proposed rulemaking in the Federal 
Register. The proposal must describe the subject and issues 
addressed in sufficient detail to allow for meaningful comment. 
Interested parties then must have an opportunity to supply 
information or views on the proposed rule. After deliberation, 
the agency must respond to significant points that were raised 
by the public \9\ and publish the final rule at least 30 days 
before it is to take effect.\10\ These are the minimum 
requirements. Often, depending upon additional statutory or 
executive requirements, rulemaking involves much more elaborate 
efforts to solicit and respond to public input.
---------------------------------------------------------------------------
    \7\ 5 U.S.C. Sec. Sec. 551 et seq.
    \8\ See Federal Agency Rulemaking at 45.
    \9\ Home Box Office, Inc. v. F.C.C., 567 F.2d 9, 35-36 (D.C.Cir. 
1977).
    \10\ 5 U.S.C. Sec. 553(d).
---------------------------------------------------------------------------
    This process lends legitimacy to rules that, while enacted 
by an unelected bureaucracy that is part of the Executive 
Branch, are the practical expression of a law's intent as 
passed by the legislature. And equally important, the process 
opens to public scrutiny rules that, despite sometimes 
appearing arcane and technocratic and often flying below the 
public radar, have wide-ranging impact on the health and well 
being of Americans.
    The three rules scrutinized in this report well illustrate 
the point: They regulate the amount of a poison that can 
legally be dissolved in Americans' drinking water, specify 
whether development can occur on certain publicly owned forest 
lands, and set the standards by which miners can extract 
minerals from public land, including lands in the close 
vicinity of homes and businesses. As one administrative law 
scholar has said:

        . . . notice and comment procedures serve fundamental 
        democratic purposes. An agency that adopts rules makes 
        new law without direct accountability to the voters. 
        Notice and comment procedure is a surrogate political 
        process. It helps to alleviate the undemocratic 
        character of agency rulemaking and enhances the 
        legitimacy of the process. It provides a channel that 
        allows interested persons to exercise political power 
        by indicating mass opposition to a proposed rule. 
        Notice and comment also enhances the ability of 
        Congress and the President to provide oversight of the 
        rulemaking process.\11\
---------------------------------------------------------------------------
    \11\ Michael Asimow, ``Interim-Final Rules: Making Haste Slowly,'' 
51 Ad. L. Rev. 703 (1999).

    In short, the ``fine print'' of the rulemaking process 
actually plays a critical role in our democracy by ensuring 
that agencies that exercise significant law-making powers do so 
in a way that is transparent, rational, orderly, and reflective 
of the intent of those elected by the people to legislate.
    The openness of the rulemaking process--and the values 
expressed by the notice and comment procedure--came under 
assault at the outset of the Bush Administration. White House 
Chief of Staff Andrew H. Card, Jr. issued a memo (``the Card 
memo'') which directed the delay of recently developed and 
issued regulations despite the extensive process that had 
helped to draft these rules and in apparent contravention of 
the strict procedural requirements regarding their rollback or 
revision. This report looks at the Card memo and the Bush 
Administration's treatment of three specific regulations 
affecting the environment and public health to determine 
whether the postponements followed appropriate procedures and 
to examine the process by which the administration reached 
decisions to reconsider, or propose to modify or suspend the 
regulations. Majority staff of the Governmental Affairs 
Committee concludes that the administration has demonstrated 
either a lack of attention to or a troubling disregard for the 
fine points of revising regulations. Rather than carefully 
weighing the substance and science of final rules to determine 
whether they should be modified, it expended its energy in 
devising methods to reach apparently pre-determined ends.

                        FINDINGS AND CONCLUSIONS

I. The Card Memo

  A. What Happened

    Although the occupant of the White House may change every 4 
or 8 years, the bulk of the Federal Government's work carries 
over from administration to administration, even when there is 
a partisan turnover in power. It was thus not unusual that on 
Inauguration Day, January 20, 2001, Federal agencies had a 
large number of rules in the pipeline. Some were in the early 
stages of development, while others had reached their 
culmination, having been published in the Federal Register--the 
official annals of the Federal regulatory world. Those rules 
which were subject to the public scrutiny requirements of the 
APA had undergone a lengthy development and review process 
prior to their publication.
    It was unusual, however, that on the afternoon of the 
Inauguration, President Bush's Chief of Staff, Andrew H. Card, 
Jr., issued a directive to agency heads ordering an immediate 
freeze of recently issued and near-final regulations to allow 
the administration's political appointees ``to carefully review 
each of these last minute regulations set by the previous 
administration.'' \12\ A White House spokesman described the 
review: ``It's our responsibility and it's sound public 
policy.'' \13\ It is worth noting that while the Clinton 
Administration completed its work on certain rules just prior 
to the new administration taking office, the rules that 
agencies actually delayed in response to the Card memo had been 
subjected to the APA's public notice and comment process and 
thus by no stretch of the imagination could be considered 
``last minute'' regulations.\14\
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    \12\ The White House, Press Briefing by Ari Fleischer, April 17, 
2001. http://www.white-house.gov/news/briefings/20010417.html; U.S. 
General Accounting Office, Regulatory Review: Delay of Final Rules 
Subject to the Administration's January 2001 Memorandum GAO-02-370R at 
3 (February 15, 2002) (hereinafter ``GAO-02-370R'').
      Of the prior three presidents, neither President Clinton nor the 
first President Bush sought immediately to suspend regulations 
published at the end of his predecessor's administration. President 
Reagan did issue a memo (not on Inauguration Day) directing a more 
narrow suspension of regulations, which also provided that such actions 
should be taken ``to the extent permitted by law.'' 46 Fed. Reg. 11227 
(February 6, 1981). This was followed by Executive Order 12291 which 
directed postponement of major rules not yet effective and established 
a government-wide regulatory process. E.O. 12291 (February 17, 1981), 3 
C.F.R. 127. The director of President Clinton's Office of Management 
and Budget (OMB) issued a memorandum to agencies requesting the 
opportunity to review and approve new regulations under development and 
the withdrawal from the Federal Register of all regulations not yet 
published in the Federal Register which could be withdrawn under 
existing procedures. 58 Fed. Reg. 6074 (January 25, 1993).
    \13\ Eric Pianin, ``Bush Scrambles to Block Clinton Rush Orders,'' 
The Washington Post, January 21, 2001, A-18.
    \14\ See U.S. General Accounting Office, Major Rules Database, July 
2002.
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    The Card memo directed department heads: (1) not to send 
any proposed or final regulations to the Federal Register 
without approval by a Bush-appointed department or agency head; 
(2) to withdraw any regulations already submitted to the 
Federal Register, but not yet published, until approved by a 
Bush appointee; and, (3) for final rules already published in 
the Federal Register but that had not yet taken effect, to 
postpone the effective date for 60 days. The memorandum 
provided that OMB could allow exceptions for emergency or 
urgent situations relating to ``critical health and safety 
functions,'' and it excluded regulations promulgated pursuant 
to statutory or judicial deadlines.\15\ The Card memo failed to 
direct agencies to comply with Federal laws governing 
modification of regulations in the process of implementing its 
instructions.
---------------------------------------------------------------------------
    \15\ Exemptions for emergencies were to be determined by the 
director or acting director of OMB and statutory or court order 
exclusions reported to the OMB Director. After issuance of the Card 
memo, OMB issued a memorandum asking departments and agencies to 
implement the memo. Memorandum for the Heads and Acting Heads of 
Executive Departments and Agencies from Mitchell E. Daniels, Jr., 
Director, ``Effective Regulatory Review,'' January 26, 2001, M-01-09.
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    Scores of rules at various stages of the regulatory process 
were put on hold. OMB reported that 124 regulations at the 
Federal Register office were pulled from the queue for further 
review, (Card memo's Category 2) and that agencies withdrew 130 
regulations from review by OMB.\16\ The General Accounting 
Office (GAO) reported that 371 final rules--rules already 
published by the Federal Register--were covered by Category 3 
of the Card memorandum, only 90 of which were actually 
postponed.\17\ More than half of the 90 postponed rules were 
rules issued by the EPA, the USDA, the Department of 
Transportation, and the Department of Health and Human 
Services.\18\ On the one year anniversary of the Card memo, of 
the 90 rules, the majority had gone into effect. Of the 
remaining, one was withdrawn, three rules were withdrawn and 
replaced, and nine other rules were modified.\19\ Eight of 
these modified rules were altered without giving the public 
prior opportunity for comment.\20\ Three rules which had been 
delayed for initial periods longer than 60 days had not gone 
into effect. Sixteen rules had been delayed more than once.\21\ 
As of the summer of 2002, six had been modified, three were 
under modification (two were made partially effective and were 
partially being modified), one was to be further revised, and 
one continued to be delayed.\22\
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    \16\ Office of Information and Regulatory Affairs, Office of 
Management and Budget, Making Sense of Regulation: 2001 Report to 
Congress on the Costs and Benefits of Regulations and Unfunded Mandates 
on State, Local, and Tribal Entities at 35 (2001) (hereinafter ``2001 
OMB Report'').
    \17\ As reported by the GAO, there were three basic reasons that 
agencies did not publish notices of delay for many of the rules that 
were covered by the Card memorandum:

      L. . . Federal agencies did not delay the effective dates for 281 
(about 75 percent) of the 371 rules. The agencies published documents 
in the Federal Register that explained why some of the rules' effective 
dates were not being changed. For example, DOT published a notice in 
the Federal Register explaining that four of its rules had effective 
dates far enough in advance . . . that the intent of the Card 
memorandum could be met without extending those dates. Also, 30 of the 
281 rules that were not delayed were issued by independent regulatory 
agencies . . . that were not required to extend the effective dates of 
their rules.

    GAO-02-370R at 4.

      LOIRA officials told us that they, the agencies, and the White 
House agreed shortly after the Card memorandum was issued that certain 
types of numerous and noncontroversial rules . . . should be allowed to 
take effect as scheduled.

    GAO-02-370R at 5.

    \18\ Id. at 5.
    \19\ GAO-02-370R at 8 and 9.
    \20\ GAO-02-370R at 9, 14, 20, 29, 30, 36, 38, 40, 41, and 43.
    \21\ Id. at 8.
    \22\ GAO-02-370R at 7, 17, 25-32, 34-35, 38-40, 45-47, 49; 66 Fed. 
Reg. 28602 (May 23, 2001); 66 Fed. Reg. 35567 (July 6, 2001); 66 Fed. 
Reg. 56608 (November 9, 2001); 66 Fed. Reg. 58912 (November 23, 2001); 
67 Fed. Reg. 9180 (February 27, 2002); 67 Fed. Reg. 36368 (May 23, 
2002).
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    To facilitate implementation of the Card memo, the OMB 
distributed to the departments and agencies a model Federal 
Register notice to postpone for 60 days the effective date of 
final rules already published in the Federal Register.\23\ The 
model notice, reprinted in footnote 24 below, characterized the 
effective-date delay as a final rule and explained that the 
action did not require notice and comment because the APA's 
exemptions for a ``rule of procedure,'' 5 U.S.C. 
Sec. 553(b)(A), or ``good cause,'' 5 U.S.C. Sec. Sec. 553 
(b)(B) and (d)(3), were applicable.\24\ In postponing the 
effective dates, the departments basically followed the model 
notice distributed by OMB. In some cases, the practice of not 
seeking public comment extended beyond the initial 60-day 
delay. The GAO reported that of the 16 rules which were delayed 
for more than 60 days, ``[f]or all but two of these rules, the 
agencies announced the additional delays without providing the 
public with a prior opportunity to comment, again generally 
citing the APA's rule of procedure and/or good cause 
exceptions.'' \25\
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    \23\ The model notice was transmitted by a letter from Mitchell E. 
Daniels, Jr., Director, Executive Office of the President, Office of 
Management and Budget to The Honorable Joseph I. Lieberman, Ranking 
Member, Committee on Governmental Affairs, U.S. Senate, Washington, 
D.C., February 27, 2001.
    \24\ The model notice instructs departments and agencies to include 
the following in their Federal Register notices:

      LIn accordance with the memorandum of January 20, 2001, from the 
Assistant to the President and Chief of Staff, entitled ``Regulatory 
Review Plan,'' published in the Federal Register on January 24, 2001, 
this action temporarily delays for 60 days the effective date of the 
rule entitled [title of published final rule], published in the Federal 
Register on [date of publication], [Fed Reg cite]. That rule concerns 
[short summary of what rule is about if it is not obvious from the 
title of the rule]. To the extent that 5 U.S.C. section 553 applies to 
this action, it is exempt from notice and comment because it 
constitutes a rule of procedure under 5 U.S.C. section 553(b)(A). 
Alternatively, the Department's [or agency's] implementation of this 
rule without opportunity for public comment, effective immediately upon 
publication today in the Federal Register, is based on the good cause 
exceptions in 5 U.S.C. section 553(b)(B) and 553 (d)(3), in that 
seeking public comment is impracticable, unnecessary and contrary to 
the public interest. The temporary 60-day delay in effective date is 
necessary to give Department officials the opportunity for further 
review and consideration of new regulations, consistent with the 
Assistant to the President's memorandum of January 20, 2001. Given the 
imminence of the effective date, seeking prior public comment on this 
temporary delay would have been impractical, as well as contrary to the 
public interest in the orderly promulgation and implementation of 
regulations. [Add specific ``good cause'' arguments, as appropriate, to 
the specifics of the rule involved.]

    \25\ GAO-02-370R at 8.
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    The Card memo and its implementation raise a number of 
concerns--some legal, others related more generally to whether 
the administration displayed a sufficiently healthy respect for 
the regulatory process. Perhaps the most troubling aspect of 
the Card memo was its instruction regarding its third 
category--final rules that had been published but had not yet 
taken effect--a category applicable to two rules discussed 
later in this report: The roadless area conservation rule and 
the arsenic rule.

  B. Legal Concerns

    By instructing agencies and departments to change the 
effective date of substantive rules, the Card memo erroneously 
suggested that agencies have greater authority to unilaterally 
alter final rules which have not yet become effective than they 
have over those already being implemented. There is no basis 
for such a distinction. Under the APA, a rule is final once it 
is ``promulgated.'' There is no question that once a rule has 
been signed by the agency head and published in the Federal 
Register, it has been promulgated.\26\ Moreover, there is no 
doubt that a rule's effective date is an integral and 
substantial component of a final rule, and it is established 
that a change or suspension in the effective date (either 
before or after it has gone into effect) may only be 
accomplished through a further notice and public comment period 
(unless an exception is appropriate).\27\ As noted, such 
decisions must be supported and have a rational basis. If not, 
an administration could choose to repeatedly and indefinitely 
postpone regulations as it saw fit--with no public engagement 
or accountability.
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    \26\ The D.C. Circuit observed in Kennecott Utah Copper Corp. v. 
Department of the Interior, 88 F.3d 1191, 1212 (D.C. Cir. 1996), while 
there may be uncertainty about the precise date upon which a regulation 
is promulgated, ``it is surely either the date of issuance or other 
formal announcement by the agency, the date of filing with the Office 
of the Federal Register, or the date of publication in the Federal 
Register.''
    \27\ See, e.g. Natural Resources Defense Council, Inc., v. 
Environmental Protection Agency, 683 F.2d 752, 759 (3d Cir. 1982) 
(holding that indefinite suspension of a final rule that had not yet 
become effective but was promulgated for judicial review purposes was a 
``rulemaking'' subject to notice and comment under the APA); 
Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802, 812 (D.C. 
Cir. 1983); Environmental Defense Fund, Inc. v. EPA, 716 F.2d 915, 920 
(D.C. Cir. 1983); Natural Resources Defense Council v. EPA, 725 F.2d 
761, 774 (D.C. Cir. 1984); Associated Builders and Contractors, Inc. v. 
Herman, 976 F. Supp. 1, 10 (D.D.C. 1997).
---------------------------------------------------------------------------
    The Bush Administration's attitude toward compliance with 
the requirements of the APA is a matter of concern, as it could 
manifest itself in failures to comply with other legal 
requirements. By asserting that the 60-day postponement of 
rules published--but not yet effective--fell under two 
exceptions to the law's notice and comment requirements, the 
administration tacitly acknowledged that the APA requirements 
would normally apply. However, the effort to gain blanket 
immunity from the APA's requirements by instructing government-
wide reliance on the same exemptions was inappropriate. The 
first claimed exemption, that the delays are ``procedural 
rules'' and thereby exempt from notice and comment, could not 
plausibly be applied to all final rules affected by the Card 
memorandum. The ``procedural rule'' exemption is applicable to 
matters such as an agency rule governing the conduct of its 
proceedings or delegating authority or duties within the 
agency.\28\ Such rules ``address how the agency goes about its 
substantive work. They do not affirmatively implement the 
agency's substantive responsibilities.'' \29\ The vast majority 
of the rules that were delayed by the Card memo directly affect 
the substantive work of the agencies, and therefore, the 
blanket procedural exception was flatly inapplicable.\30\
---------------------------------------------------------------------------
    \28\ 5 U.S.C. Sec. 553 (b)(A). See, Federal Agency Rulemaking at 
53.
    \29\ A Rush to Regulate--The Congressional Review Act and Recent 
Federal Regulations, Hearing before the Subcommittee on Energy Policy, 
Natural Resources and Regulatory Affairs, House Committee on Government 
Reform, Serial No. 107-14 (March 27, 2001) (statement of Thomas O. 
McGarity, W. James Kronzer Chair, University of Texas School of Law) 
127.
    \30\ GAO-02-370R, Appendix 1. The Appendix contains a chart which 
lists the 90 rules and summarizes the actions taken. It also contains 
the agency's characterization of whether the rules were ``significant 
or substantive in nature.'' Based on the description of the rules, two 
or three, at most a handful, involve agency procedure.
---------------------------------------------------------------------------
    The second basis in the model Federal Register notice for 
justifying the effective date delays was the APA's ``good 
cause'' exception. The APA provides that agencies may issue or 
modify a rule without the customary notice and comment where, 
for ``good cause,'' it finds that such procedures would be 
``impracticable, unnecessary, or contrary to the public 
interest.'' \31\ The model Federal Register notice distributed 
to and used by the agencies repeated this language as its 
justification of ``good cause'':
---------------------------------------------------------------------------
    \31\ 5 U.S.C. Sec. 553(b)(B) provides a ``good cause'' exemption 
for rules from notice and comment procedures, and 5 U.S.C. 
Sec. 553(d)(3) a ``good cause'' exemption from advance publication.

        . . . to give Department officials the opportunity for 
        further review and consideration of new regulations, 
        consistent with the Assistant to the President's 
        [Card's] memorandum of January 20, 2001. Given the 
        imminence of the effective date, seeking prior public 
        comment on this temporary delay would have been 
        impractical, as well as contrary to the public interest 
        in the orderly promulgation and implementation of 
        regulations.\32\
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    \32\ Supra, note 24.

In other words, the Card memo instructed the agencies to find 
``good cause'' for putting off the rules in the fact that they 
had to comply with the Card memo's mandate to put off the 
rules.
    Courts have made clear that merely invoking the term ``good 
cause'' is not enough to justify the exception's use to 
dispense of the critical notice and comment process.\33\ When 
the use of the ``good cause'' exception is challenged, \34\ 
courts will scrutinize the facts to determine whether it is, in 
fact, justified, and will only reluctantly uphold reliance on 
the ``good cause'' exception.\35\ Court interpretations of what 
constitutes ``good cause'' vary, \36\ but the sheer political 
determination of a new administration to suspend the work of 
its predecessor has not been among them. In fact, in a 
challenge to the summary suspension of a rule based solely on 
an executive order issued by President Reagan directing the 
postponement of major rules, the court voided the suspension 
when the agency failed to show why it could not comply with the 
notice and comment requirements.\37\ The D.C. Circuit has 
stated its firm understanding that the exceptions of the 
provisions of section 553,
---------------------------------------------------------------------------
    \33\ Mobil Oil Co. v. Department of Energy, 610 F.2d 796, 803 
(Temp. Emer. Ct. App. 1979).
    \34\ Challenges to specific delays resulting from the Card 
memorandum were rare and there are no rulings on whether the blanket 
assertion that the President's appointees needed time ``for further 
review and consideration of new regulations' was adequate ``good 
cause'' to justify delays of scores of final regulations without notice 
and comment. One case involved a challenge by several states and public 
interest groups to the Department of Energy's actions to postpone the 
final rule that was issued to establish energy efficiency standards for 
residential central air conditioners and heat pumps. The case was 
dismissed by the District Court on the grounds that jurisdiction lies 
in the U.S. Court of Appeals and the challenge is now pending in the 
Second Circuit. State of New York v. Abraham, 199 F. Supp.2d 145 
(S.D.N.Y. 2002).
    \35\ Council of the Southern Mountains v. Donovan, 653 F.2d 573 
(D.C. Cir. 1981), is an example. This case involved a decision by the 
Secretary of Labor to postpone a mine safety regulation for 6 months 
without notice and comment procedures due, in part, to the 
unavailability of safety devices. The D.C. Circuit upheld the action 
under the ``good cause'' exception, but only after carefully 
scrutinizing the decision and detailing five factors that argued for 
the delay. Those factors included circumstances beyond the agency's 
control and evidence that it had done everything to implement the 
regulations on time. Even so, the court said that the delay constituted 
an ``extremely close case,'' and stressed that its decision should not 
be interpreted to lower the high threshold under the good cause 
exception.
    \36\ Ellen R. Jordan, ``The Administrative Procedure Act's `Good 
Cause' Exemption,'' 36 Ad. L. Rev. 113, 116 (1984).
    \37\ Natural Resources Defense Council v. Environmental Protection 
Agency, 683 F.2d 752, 761-62 (3d Cir. 1982).

        . . . will be narrowly construed and only reluctantly 
        countenanced. . . . As the legislative history of the 
        APA makes clear, moreover, the exceptions at issue here 
        are not ``escape clauses' that may be arbitrarily 
        utilized at the agency's whim. . . . Rather, use of 
        these exceptions by administrative agencies should be 
        limited to emergency situations . . . furthermore, the 
        grounds justifying the agency's use of the exception 
        should be incorporated within the published rule.\38\ 
        (Citations omitted)
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    \38\ American Federation of Government Employees, AFL-CIO v. Block, 
655 F.2d 1153, 1156 (D.C. Cir. 1981) (quoting State of New Jersey, 
Department of Environmental Protection v. Environmental Protection 
Agency, 626 F.2d 1038, 1045 (D.C. Cir. 1980)). See also, Sharon Steel 
Corp. v. EPA, 597 F.2d 377, 379 (3d Cir. 1979); American Iron & Steel 
Institute v. EPA, 568 F.2d 284 (3d Cir. 1977).

While courts have found that emergency situations exist in some 
cases--for example, in response to a court order \39\ or a 
pressing health and safety matter \40\--the ``situations are 
indeed rare,'' and ``courts will examine closely proffered 
rationales justifying the elimination of public procedures.'' 
\41\ In addition, the exemption for ``procedural rules'' is not 
available as an alternative to the ``good cause'' exemption if 
the action taken by the agency substantially alters the rights 
or interests of the regulated parties.\42\
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    \39\ American Federation of Government Employees, AFL-CIO, supra 
note 38. This case involved an order issued in response to a suit 
alleging discrimination in the enforcement of inspection rates in 
poultry processing plants.
    \40\ Washington State Farm Bureau, v. Marshal, 625 F.2d 296, 306-
308 (D.C. Cir. 1980).
    \41\ American Federation of Government Employees, AFL-CIO, supra 
note 38, at 1158, n. 6. United Steel Corp. v. Environmental Protection 
Agency, 595 F.2d 207 (5th Cir. 1979) (argument that statutory deadlines 
made prior notice and comment impracticable and contrary to the public 
interest rejected); Sharon Steel Corp. v. Environmental Protection 
Agency, 597 F.2d 377 (3d Cir. 1979) (mere existence of deadlines for 
agency action, whether set by statute or court order, does not in 
itself constitute good cause for dispensing with notice and comment).
    \42\ Jem Broadcasting Co. v. F.C.C., 22 F.3d 320 (D.C. Cir. 1994).
---------------------------------------------------------------------------
    It is hard to see how the desire for a blanket postponement 
of a broad range of rules issued by the previous administration 
could possibly qualify under such a narrow exemption. In short, 
the effect of the Card memorandum's instructions to agency and 
department heads to delay final rules without attention to 
these legal requirements requiring public participation 
encouraged government-wide non-compliance with the requirements 
of the APA. Thus, the Card memo set an unacceptable tone in the 
Executive Branch--an unhealthy disregard for the important 
procedural constraints by which all administrations must abide. 
The Executive Branch is charged with the faithful 
implementation of all the laws passed by Congress, not their 
selective execution.\43\ In the view of Majority staff, the 
Bush Administration's early actions set a troubling tone and 
raise concern as to whether they set a potentially dangerous 
precedent.
---------------------------------------------------------------------------
    \43\ As noted above, the second instruction contained in the Card 
memo was to withdraw any regulations already submitted to the Federal 
Register, but not yet published. None of the three regulations 
discussed later in this report fall within that category. Some Federal 
courts consider that the date of filing a regulation with the Office of 
the Federal Register is the date upon which a regulation is 
promulgated, thus raising a question about the appropriateness of such 
withdrawals. Kennecott Utah Copper Corp. v. Department of the Interior, 
88 F.3d 1191, 1212 (D.C. Cir. 1996).
---------------------------------------------------------------------------

  C. Public Participation

    In addition to concerns about the administration's failure 
to comply with the law, the Card memo suspensions raise 
troubling questions about the Bush Administration's regard for 
the importance of public participation in the regulatory 
process. As discussed above, the APA public participation 
mandate is not to be dispensed with lightly; the opportunity 
for public comment is the public's central means of ensuring 
that an agency has taken into account all ``relevant factors,'' 
as it is required to do in making its decision.\44\ For 
instance, in cases where a proposed rule is based on a 
scientific decision, courts have interpreted the APA to require 
the rulemaking agency to indicate the scientific literature and 
studies it relies upon during the public comment period.\45\ It 
is crucial to the workings and spirit of democracy that even 
regulations that would be characterized as arcane are not 
hidden from public oversight.
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    \44\ Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 
(1971).
    \45\ See United States v. Nova Scotia Food Products Corp., 568 F.2d 
240, 252 (2d. Cir. 1977); Portland Cement Ass'n. v. Ruckelshaus, 486 
F.2d 375, 400 (D.C. Cir. 1973).
---------------------------------------------------------------------------
    Moreover, the rules being put on hold had already been 
through the procedural wringer when they were issued in the 
first place. In other words, they had already been subjected to 
an interchange between the public and the government--an 
interchange that, in some cases, occurred over a period of 
years and involved a significant commitment of resources and 
staff. The arguments were made and considered, necessary 
analysis completed, then policy decisions made and a final rule 
issued. It is disturbing that, with the stroke of a pen, no 
participation by the public, and generally no justification 
offered other than the reasons provided in the model Federal 
Register notice, those final decisions were put on hold, giving 
short shrift to the role of the public that participated in the 
notice and comment process in the initial development of the 
rule.
    In some cases, as noted above, following the 60 day or 
longer delays, the agencies and departments modified, or even 
withdrew, the final rules. This is not necessarily improper; 
agencies have some latitude to modify, or even reverse, a 
rule.\46\ However, under the APA, when doing so they must 
generally go through the same process required for enacting a 
rule in the first place, which includes a public notice and 
comment period--a process which was not always followed.
---------------------------------------------------------------------------
    \46\ American Trucking Ass'ns., Inc. v. Atchison, Topeka & Santa Fe 
Railroad Co., 387 U.S. 397 (1967); Permian Basin Area Rate Cases, 390 
U.S. 747 (1968).
---------------------------------------------------------------------------

II. The Bush Administration's Attempts to Change Three Rules

    Senator Lieberman, then-Ranking Member of and now Chairman 
of the Committee on Governmental Affairs, was concerned that 
the Card memorandum reviews would be used to turn back the 
clock on important health, safety, and environmental 
protections and undo years of work on important 
regulations.\47\ EPA Administrator Whitman's announcement on 
March 20, 2001, that the EPA would propose withdrawing its 
standard for arsenic in drinking water \48\ increased those 
concerns, thereby prompting Senator Lieberman to send letters 
to the Department of Agriculture, the Department of the 
Interior, and the Environmental Protection Agency requesting 
information and documents related to agency decisions on three 
final regulations: USDA's rule safeguarding roadless areas of 
the national forests from environmental degradation, DOI's 
hardrock mining rule, and EPA's drinking water standard 
lowering the amount of arsenic allowed in drinking water.\49\ 
The documents ultimately provided to the Committee or reviewed 
by the Majority staff demonstrate a lack of a careful review of 
the rules and the reasons and the science behind the rules 
prior to the agency's proposals to suspend or take other action 
with regard to the rules. Instead, in these three cases, the 
Bush Administration appears to have pre-determined that the 
regulations should be changed, and sought to employ whatever 
tools and tactics it deemed convenient to effect that change.
---------------------------------------------------------------------------
    \47\ Letter from Senator Joseph I. Lieberman and Representative 
Henry A. Waxman to the Honorable Mitchell E. Daniels, Jr., Director, 
Office of Management and Budget, Washington, D.C., February 4, 2001.
    \48\ Communications, Education, and Media Relations, U.S. 
Environmental Protection Agency, ``EPA to Propose Withdrawal of Arsenic 
in Drinking Water Standard; Seeks Independent Reviews,'' March 20, 
2001.
    \49\ Letters from Joseph I. Lieberman, Ranking Member, Committee on 
Governmental Affairs, to the Honorable Christie Whitman, Administrator, 
Environmental Protection Agency, the Honorable Ann M. Veneman, 
Secretary of Agriculture, and the Honorable Gale A. Norton, Secretary 
of the Interior, Washington, D.C., March 22, 2001.
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  A. Roadless Area Conservation Rule

    The USDA's Forest Service has stewardship over 192 million 
acres of Federal land, \50\ including 155 national forests.\51\ 
It is responsible for managing those publicly-owned lands for 
multiple uses, including outdoor recreation, range, timber, 
watershed, and wildlife and fish purposes.\52\ The Multiple-Use 
Sustained-Yield Act of 1960 recognizes that ``some land will be 
used for less than all of the resources, and not necessarily 
the combination of uses that will give the greatest dollar 
return or the greatest unit output.'' \53\ The duties Congress 
has assigned to the Secretary of Agriculture include regulating 
the occupancy and use of the national forest system lands and 
preserving the forests from destruction.\54\ The National 
Forest Management Act of 1976 (NFMA) \55\ authorizes the 
Secretary to issue regulations implementing its provisions and 
specifying guidelines for the development of resource 
management plans for land in the national forest system.\56\ 
These guidelines are to take into account a variety of economic 
and environmental considerations, \57\ including ensuring that 
timber will be harvested only where watershed conditions will 
not be irreversibly damaged.\58\ Roads are to be allowed in the 
forests to meet transportation needs on an economical and 
environmentally sound basis.\59\
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    \50\ Ross W. Gorte and Carol Hardy Vincent, ``Public (BLM) Lands 
and National Forests,'' Congressional Research Service Issue Brief for 
Congress, IB10076, June 14, 2002 at CRS-1.
    \51\ Office of the Federal Register, National Archives and Records 
Administration, The United States Government Manual, 2001-2002 at 125.
    \52\ 16 U.S.C. Sec. 528.
    \53\ 16 U.S.C. Sec. 531. The Multiple-Use Sustained-Yield Act of 
1960 also requires ``sustained yield,'' defined as the ``achievement 
and maintenance in perpetuity of a high-level annual or regular 
periodic output of the various renewable resources of the national 
forest without impairment of the productivity of the land.'' 16 U.S.C. 
Sec. 531. It authorizes the ``multiple use'' of the national forests 
``in the combination that will best meet the needs of the American 
people'' and recognizes that ``establishment and maintenance of areas 
of wilderness'' areas is consistent with the purposes of the act. 16 
U.S.C. Sec. 529.
    \54\ 16 U.S.C. Sec. 551.
    \55\ Pub. L. 94-588, 90 Stat. 2949 (1976).
    \56\ 16 U.S.C. Sec. 1604 (a). These are to be coordinated with the 
land and resource management planning process of State and local 
governments and other Federal agencies.
    \57\ 16 U.S.C. Sec. 1604 (g).
    \58\ 16 U.S.C. Sec. 1604 (g)(3)(E)(i).
    \59\ 16 U.S.C. Sec. 1608.
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    Responding to concerns about the cost of road maintenance, 
the adverse impact of development on watersheds and ecosystem 
health, and the continuing controversies associated with the 
development of roadless areas, on January 12, 2001, the Clinton 
Administration issued a final regulation \60\ prohibiting most 
new road construction and timber harvesting on 58.5 million 
acres of ``inventoried'' roadless areas within the national 
forest system.\61\ Inventoried roadless areas are areas 
identified by the Forest Service through one or more formal 
review procedures.\62\ They generally contain the 
characteristics which are listed in the footnote below, \63\ 
and were designated on maps in the Environmental Impact 
Statement supporting the rule.\64\ Over the past 20 years, 
roads have been constructed in an estimated 2.8 million of 
National Forest ``inventoried'' roadless areas.\65\ The Forest 
Service estimated its backlog for upkeep of its existing 
373,000 mile road system, used by an estimated 1.7 million 
vehicles a year, \66\ at $8.4 billion.\67\ The area affected by 
the rule included 9.3 million acres in the Tongass National 
Forest in Alaska, a part of the Pacific Coast's temperate 
rainforest ecosystem encompassing many undisturbed 
watersheds.\68\
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    \60\ 66 Fed. Reg. 3244 (January 12, 2001). The rule was effective 
March 13, 2001. The Department also published two other related rules: 
A rule affecting roads that make up the Forest Development 
Transportation system focused on providing and maintaining the minimum 
forest transportation system needed for safe and efficient travel. 66 
Fed. Reg. 3206. (January 12, 2001). New planning regulations required 
that changes in the use of roadless areas be determined through the 
planning process. 65 Fed. Reg. 67514 (November 9, 2000).
    \61\ 66 Fed. Reg. 3246 (January 12, 2001).
    \62\ The Forest Service has conducted several reviews of 
inventoried roadless areas, beginning in 1972 with a national screening 
process to identify areas that would be suitable for preservation as 
wilderness areas. A second national review of roadless areas was 
completed in 1979 and additional reviews through the planning process 
have been conducted since then. Id.
    \63\ A road was defined in the Roadless Conservation Area rule as a 
``motor vehicle travelway over 50 inches wide, unless designated and 
managed as a trail.'' 36 CFR Sec. 294.11. The rule also described 
inventoried roadless areas as generally characterized by several 
features: High quality or undisturbed soil, water, and air; sources of 
public drinking water; diversity of plant and animal communities; 
habitat for threatened, endangered, proposed, candidate and sensitive 
species and for those species dependent on large, undisturbed areas of 
land; primitive, semi-primitive non-motorized and semi-primitive 
motorized classes of dispersed recreation; reference landscapes; 
natural appearing landscapes with high scenic quality; traditional 
cultural properties and sacred sites; and other locally identified 
unique characteristics. 66 Fed. Reg. 3272 (January 12, 2001).
    \64\ Maps showing where inventoried roadless areas are located are 
reprinted in Volume 2 of the Final Environmental Impact Statement. U. 
S. Department of Agriculture, Forest Service Roadless Area 
Conservation, Final Environmental Impact Statement, Vol. 2 (November 
2000) (hereinafter ``Roadless Area FEIS'').
    \65\ 66 Fed. Reg. 3246 (January 12, 2001).
    \66\ 63 Fed. Reg. 4350 (January 28, 1998).
    \67\ 64 Fed. Reg. 56306 (October 19, 1999).
    \68\ The Tongass National Forest has a full complement of native 
species including bald eagles, wolves, black-tailed deer, brown bears, 
and five species of anadromous salmon. Letter to the Honorable William 
J. Clinton, President of the United States, Washington, D.C., from Paul 
Alaback, Ph.D., Assistant Professor, School of Forestry, University of 
Montana and more than 200 additional signatories who are scientists, 
December 20, 1999.
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    The inventoried roadless areas, which have long received 
special management attention \69\--with many areas being 
managed by the Forest Service as natural, primitive, or 
wilderness areas--are found within 661 of the over 2,000 major 
watersheds in the continental United States.\70\ These areas 
generally have high quality or undisturbed water and air and 
serve as sources of public drinking water for millions of 
Americans, containing all or portions of 354 municipal 
watersheds.\71\ The watersheds provide about 14 percent of the 
water flow of the nation, 33 percent of which is in the 
west.\72\ Healthy watersheds catch, store, and safely release 
water over time, protecting downstream communities from 
flooding, providing clean water for many uses, and helping 
maintain abundant fish and wildlife populations. They are also 
biological strongholds for populations of threatened and 
endangered species. Of the Nation's species listed or proposed 
for listing under the Endangered Species Act, approximately 25 
percent of animal species and 13 percent of plant species are 
likely to have habitat within inventoried roadless areas.\73\
---------------------------------------------------------------------------
    \69\ Pamela Baldwin, ``The National Forest System Roadless Areas 
Initiative,'' Congressional Research Service Report for Congress, 
RL30647, January 22, 2002 at 4 (hereinafter ``RL30647'').
    \70\ Roadless Area FEIS, Vol. 1 at 3-50.
    \71\ 66 Fed. Reg. 3245 (January 12, 2001).
    \72\ 66 Fed. Reg. 3246 (January 12, 2001).
    \73\ 66 Fed. Reg. 3245 (January 12, 2001).
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    The rule promulgated by the Clinton Administration in 
January 2001 restricted logging to activities that maintained 
or restored the forest, to existing timber contracts, and to 
activities for which an environmental analysis was already 
formally underway. Existing leases, rights, and statutory 
rights were preserved, as well as roads needed for these leases 
and rights. The rule also contained specific provisions to 
address concerns about the dangers of wildfires. In appropriate 
circumstances, timber could be removed to reduce the risk of 
uncharacteristic wildfire effects and, in the case of an 
imminent threat of fire that would cause the loss of life or 
property, the construction of roads could be authorized.\74\ 
The USDA also issued a final policy, previously the subject of 
public comment, which provided for science-based analysis \75\ 
in assessing the need for new road construction and emphasized 
the maintenance and decommission of existing roads rather than 
the construction of new roads.\76\
---------------------------------------------------------------------------
    \74\ 66 Fed. Reg. 3272-73 (January 12, 2001).
    \75\ 66 Fed. Reg. 3219 (January 12, 2001).
    \76\ The policy described a ``science-based roads analysis'' as an 
analysis, conducted through an ``authorized'' process by an 
interdisciplinary team and which provides critical information needed 
to identify and manage a minimum road system. It identified the process 
outlined in the U.S. Department of Agriculture's publication, ``Roads 
Analysis: Information Decisions About Managing the National Forest 
Transportation System'' as an ``authorized science-based road 
analysis.'' Misc. Report FS-643 (1999). 66 Fed. Reg. 3234 (January 12, 
2001).
---------------------------------------------------------------------------
    By imposing national limitations on road construction and 
timber harvesting, the rule represented a significant departure 
from the prior practice of making decisions regarding roadless 
areas on a forest-by-forest basis. The stated justification for 
the rule addressed concerns about the cumulative impact of 
these piecemeal decisions:

          If management decisions for these areas were made on 
        a case-by-case basis at a forest or regional level, 
        inventoried roadless areas and their ecological 
        characteristics and social values could be 
        incrementally reduced. . . . Added together, the 
        nation-wide results of these reductions could be a 
        substantial loss of quality and quantity of roadless 
        area values and characteristics over time.\77\
---------------------------------------------------------------------------
    \77\ 66 Fed. Reg. 3252-53 (January 12, 2001).

In short, the rule made clear that after years of incursions, 
the Federal Government would limit further erosion of roadless 
areas.

  (1) The Rule's Development

    The rule had been developed over the course of several 
years. In January 1998, the Forest Service published an Advance 
Notice of Proposed Rulemaking to solicit comments on revising 
the National Forest Road system.\78\ Pending its work on a 
comprehensive overhaul of the forest road policy, the Forest 
Service issued a second notice proposing temporary suspension 
of road construction and reconstruction.\79\ After holding 31 
open houses attended by an estimated 2,300 people and receiving 
53,000 comments, the agency issued an interim rule on February 
12, 1999 which suspended road construction for 18 months.\80\
---------------------------------------------------------------------------
    \78\ 63 Fed. Reg. 4350 (January 28, 1998).
    \79\ 63 Fed. Reg. 4350-51 (January 28, 1998).
    \80\ 64 Fed. Reg. 7290 (February 12, 1999).
---------------------------------------------------------------------------
    On October 13, 1999, President Clinton directed the Forest 
Service to develop and propose for public comment regulations 
that would provide long-term protection for already inventoried 
roadless areas.\81\ On October 19, 1999, following the 
procedures provided for in the National Environmental Policy 
Act (NEPA), the agency published a Notice of Intent to prepare 
a Draft Environmental Impact Statement (DEIS) to consider the 
effects of eliminating road construction activities in the 
remaining ``un-roaded'' portions of inventoried roadless areas 
and of establishing criteria to ensure that social and 
ecological values would be protected through the forest 
planning process. (NEPA requires Federal agencies to prepare an 
environmental impact statement regarding major Federal actions 
significantly affecting the quality of the human environment.) 
\82\ The notice also initiated a rulemaking process to restrict 
road construction in the inventoried roadless areas.\83\ In 
response to the Notice of Intent, about 16,000 people attended 
187 public meetings. More than 517,000 responses were received 
by the time the next steps were taken, when the Forest Service 
published a DEIS on May 10, 2000.\84\ It also published a 
proposed rule prohibiting road construction and reconstruction 
in most inventoried roadless areas of the national forest 
system, and requiring evaluation of roadless area 
characteristics when revising land and management plans.\85\ 
Following publication of the DEIS, the Forest Service held two 
cycles of public meetings regarding the draft and the proposed 
rule--about 230 for information sharing and about 200 for 
collecting oral and written comments.\86\ About 16,000 people 
attended comment meetings, at which nearly 7,000 (or 44 percent 
of the attendees) spoke.\87\ The Forest Service received more 
than 1.1 million written comments on the DEIS which it analyzed 
and addressed.\88\
---------------------------------------------------------------------------
    \81\ 66 Fed. Reg. 3244, 3247 (January 12, 2001).
    \82\ 42 U.S.C. Sec. 4332(C).
    \83\ 64 Fed. Reg. 56306 (October 19, 1999).
    \84\ Roadless Area FEIS, Vol. 1 at 1-7.
    \85\ 65 Fed. Reg. 30276 (May 10, 2000).
    \86\ 66 Fed. Reg. 3248 (January 12, 2001).
    \87\ Roadless Area FEIS, Vol. 1 at 1-7.
    \88\ Roadless Area FEIS, Vol. 1 at 1-7 and Vol. 3.
---------------------------------------------------------------------------
    In response to public comments, the final rule, issued on 
January 12, 2001, included a prohibition on timber 
harvesting.\89\ Eight lawsuits were filed in six Federal 
judicial districts--the most significant of which, for the 
purposes of this review, were filed on January 8 and 9, 2001, 
in U.S. District Court in Idaho, even before the rule appeared 
in the printed Federal Register.\90\
---------------------------------------------------------------------------
    \89\ 66 Fed. Reg. 3256 (January 12, 2001). Although not contained 
in the proposed rule, this alternative was described in the Draft 
Environmental Impact Statement and was identified as a preferred 
alternative in the Final Environmental Impact Statement. The rule was 
issued in accordance with authority contained in a variety of laws, 
including those providing for the general management, regulation of 
occupancy, and preservation of the forests. 16 U.S.C. Sec. Sec. 475, 
529, 551, 1608, 1613, as cited at 66 Fed. Reg. 3272. In addition to the 
Multiple Use Sustained Yield Act of 1969 and the National Forest 
Management Act of 1976 mentioned above, the Organic Act of 1897 directs 
that the national forests be managed to improve and protect the forests 
or ``for the purpose of securing favorable conditions of water flows, 
and to furnish a continuous supply of timber for the use and 
necessities of citizens of the United States; . . .'' 16 U.S.C. 
Sec. 475. It authorizes the Secretary to issue regulations to 
``regulate the occupancy and use of the forests and to preserve them 
from destruction; . . .'' 16 U.S.C. Sec. 551.
    \90\ Kootenai Tribe of Idaho v. Veneman, CV01-10-N-EJL (D. Id. 
filed January 8, 2001) and State of Idaho v. United States Forest 
Service, CV01-11-N-EJL (D. Id. filed January 9, 2001).
---------------------------------------------------------------------------

  (2) Department Delays and Reviews Rule

    Soon after taking office, and in accordance with the Card 
memo's instructions, USDA Secretary Ann Veneman postponed the 
rule's effective date for 60 days. The notice, which appeared 
in the Federal Register on February 5, 2001, used the OMB model 
notice and delayed the effective date from March 13 to May 12, 
2001 to give ``Department officials the opportunity for further 
review and consideration of new regulations. . . .'' \91\
---------------------------------------------------------------------------
    \91\ 66 Fed. Reg. 8899 (February 5, 2001).
---------------------------------------------------------------------------
    As discussed above, the roadless rule by this time was a 
final regulation--the product of an extensive and public 
process. It was, without dispute, a substantive rule--not, in 
any reasonable interpretation, simply a rule affecting agency 
procedure. Therefore, the procedural exemption to the APA was 
not applicable. Furthermore, the USDA offered no explanation to 
justify invoking the ``good cause'' exception from public 
comment--neither in the Federal Register notice nor in any 
decision documents for the Secretary--other than the model 
notice's generic reference to the imminence of the effective 
date and the desire for review by new administration 
officials--justifications that were, in Majority staff's view, 
inappropriate.
    Because the rule had been developed during the Clinton 
Administration with extensive public participation, one would 
hope that before upsetting the results of this extensive 
process, the new administration would carefully review the 
rule, the data supporting it, and undertake to revise it only 
if there appeared to be a rational basis for doing so, within 
the requirements of the applicable statutes. Based on the 
documents provided by the agencies, however, it appears no such 
review was undertaken. Nevertheless, the rule--about which OMB 
staff specifically requested information regarding compliance 
with the Card memo directive \92\--was targeted for delay and/
or alteration.
---------------------------------------------------------------------------
    \92\ E-mail from Desk Officer, Office of Information and Regulatory 
Affairs, Office of Management and Budget, to staff at U.S. Department 
of the Interior and U.S. Department of Agriculture, ``suspension of 
effective date,'' January 24, 2001.
---------------------------------------------------------------------------
    The USDA produced and the Majority staff reviewed 
approximately 20,000 pages of departmental documents. While the 
documents contain reference materials that would be relevant to 
a rule review, \93\ they also contain nothing that could be 
considered work product, analysis, research, or narrative 
reflecting a systematic review of either the substance or 
procedure associated with promulgation of the final rule. 
Similarly, there are no tasking memoranda creating such 
reviews, schedules for completing such a task within such a 
relatively short period of time, or identifiable work product 
that would have been produced from such reviews. There is a one 
page document which listed five issues regarding implementation 
of the rule, \94\ and a plan to gather information from the 
field to ``substantiate NFMA violations.'' \95\
---------------------------------------------------------------------------
    \93\ These include sections of the Environmental Impact Statement, 
tallies of affected lands, a paper on the history of laws governing 
forest lands, etc.
    \94\ The issues listed were impacts on the national fire plan, 
conflicts with policies for leasing minerals, lack of exemptions for 
utility corriders and provisions for necessary adjustment to 
boundaries, and questions regarding the effective date. Memorandum from 
staff at Intermountain Region, U.S. Forest Service to Dave Tenny, 
Acting Under Secretary for Natural Resources and Environment, Subject: 
``Roadless Area Conservation Rule Issues,'' March 7, 2001.
    \95\ E-mail from David Tenny, U.S. Department of Agriculture to 
OSECNET.UASEC. Christopher, ``Draft Rule,'' April 3, 2001.
---------------------------------------------------------------------------
    In place of a focus on whether the rule should be modified, 
the administration concerned itself with tactics. The documents 
reviewed contained proposals and option papers discussing 
tactically how to achieve the desired result--an overturning of 
the rule as written.\96\ The preferred result was to replace 
the rule with a return to the traditional decisionmaking by 
local Forest Service officials.\97\ In other words, it appears 
that a pre-determination had been made that the new national 
requirements were wrong and should be reversed--the issue for 
the department was how to achieve that goal. Various options 
for accomplishing this were addressed, such as further 
extensions of the effective date to allow time for a 
replacement rule and an expedited rulemaking process. A USDA-
produced document entitled ``Talking Points and Options for 
Rescinding the Roadless Rule,'' with multiple copies, laid out 
the options as follows:
---------------------------------------------------------------------------
    \96\ These include, for example, several undated, unidentified 
documents with the headings ``Roadless Options''; ``Talking Points & 
Options for Rescinding the Roadless Rule''; and ``Privileged & 
Confidential: Rulemaking Options for Adjusting the Roadless Rule.''
    \97\ Unidentified, undated document: ``Privileged & Confidential: 
Rulemaking Options for Adjusting the Roadless Rule''; Draft Talking 
Points, dated 4/6 and part of Communication Plan, Roadless Area 
Conservation Rules. Interestingly, one strategy advanced in an undated, 
unsigned note addressed to ``Dave'' for rescinding the rule involved 
announcing, as did the EPA with respect to arsenic, that the rule would 
be rescinded, then seeking public comment. ``That will make it hard for 
opposition groups to rally support for another million or two comments. 
Basically, the announcement makes it clear the debate is over.''

          (1) extend the effective date before May 12, remove 
---------------------------------------------------------------------------
        the rule later, no comment period.

          (2) rescind the rule ``immediately'', no comment 
        period.

          (3) rescind the rule ``immediately'' (no comment 
        period on the removal) and include a new rule (no NEPA 
        \98\ but with a comment period) that establishes the 
        requirements for the Forest Service to a) complete an 
        EIS for roadless entry, and b) consider Roadless 
        Management Areas in Forest Plan Revisions. \99\
---------------------------------------------------------------------------
    \98\ As discussed above, page 31, ``NEPA'' requires an agency to 
prepare a detailed statement on the environmental impact of a major 
Federal action significantly affecting the quality of the human 
environment before such an action can be taken. 42 U.S.C. 
Sec. Sec. 4321, et seq. Presumably, the statement ``No NEPA'' means 
that no such statement would be prepared.
    \99\ The document is undated. However, its contents include 
projections for actions ``doable'' by May 1.

  (3) Legal Strategy

    Conveniently, there was another route available for the 
administration's efforts to overturn the rule: The courts. From 
the outset, department officials were conscious of the 
relationship of their actions with the existing litigation 
challenging the rule. The Governor of Idaho wrote to Secretary 
Veneman advising her of the State's challenge to implementation 
of the roadless rule and requesting an opportunity for his 
negotiating team to brief the Secretary's staff. His letter 
describes an order from the U.S. District Court in Idaho, in 
which, although dismissing a challenge at an early stage of the 
rule's analysis under NEPA, the court expressed skepticism 
about the adequacy of public participation.\100\ A meeting on 
roadless issues was scheduled between USDA officials and 
Governor Kempthorne's representatives on February 27, 
2001.\101\ This was a week after the plaintiffs in a parallel 
case in the Idaho District Court filed a motion seeking a 
preliminary injunction \102\ to prevent implementation of the 
rule.\103\ The judge set an expedited schedule with a hearing 
on March 30, 2001.\104\ An undated USDA options paper proposing 
to effectively rescind the roadless rule specifically noted 
that ``(a)ny rulemaking effort must be closely coordinated with 
the ongoing litigation challenging the roadless rule. . . . On 
March 30, 2001, the Federal District Court for the District of 
Idaho (Judge Lodge) is expected to hold a preliminary 
injunction hearing on whether to enjoin implementation of the 
roadless rule prior to or upon the scheduled effective date 
(May 12, 2001).'' \105\
---------------------------------------------------------------------------
    \100\ Letter from Dirk Kempthorne, Governor of Idaho to the 
Honorable Ann Veneman, Secretary of Agriculture, Department of 
Agriculture, Washington, D.C., January 25, 2001 with enclosures, 
including State of Idaho v. U. S. Forest Service, No CV99-611-N-EJL (D. 
Id. Feb. 17, 2000) (order dismissing complaint).
    \101\ Schedule notice: ``Subject: Re: Roadless--Erika Eaton, Bruce 
Smith [Governor Dirk Kempthorne's Office] w/Michael Bogert, Clive 
Strong, Jan Polin [sic],'' February 27, 2001.
    \102\ A preliminary injunction is a legal order essentially 
prohibiting the defendant from doing what it wants to do, pending a 
full review on the merits. Because it is a grant of relief to the 
plaintiffs before the court has even heard the evidence, some courts, 
including the Ninth Circuit, impose a high hurdle on those seeking a 
preliminary injunction which upsets the status quo--they must show, 
among other things, that they are likely to prevail on the merits and 
that they will be irreparably harmed without injunctive relief. Fed. R. 
Civ. P. 65; Thomas R. Lee, ``Preliminary Injunctions and the Status 
Quo,'' 58 Wash & Lee L. Rev. 109, 116 (Winter 2001).
    \103\ Kootenai Tribe of Idaho v. Veneman, CV01-10-N-EJL (D. Id. 
February 20, 2001) (Motion for Preliminary Injunction).
    \104\ Kootenai Tribe of Idaho v. Veneman, CV01-10-N-EJL (D. Id. 
March 9, 2001) (Order).
    \105\ Undated, unidentified document, ``Privileged & Confidential, 
Rulemaking Options for Adjusting the Roadless Rule.''
---------------------------------------------------------------------------
    After Judge Lodge scheduled a hearing, attorneys from the 
Department of Justice (DOJ) and USDA were scheduled to meet on 
March 12 with the Acting Under Secretary for Natural Resources 
and Environment.\106\ Handwritten notes from that date 
regarding short-term and long-term legal options identified the 
further extension of the effective date as an option, noting as 
a ``benefit--keeps case before a judge we know'' and identifies 
as next steps to ``confer with White House'' and ``take options 
to Secretary and White House decision makers.'' \107\
---------------------------------------------------------------------------
    \106\ Schedule notice, ``Subject: Re: Roadless--with Jan Polin 
[sic], Mike Gippert, Vince DeWitt, [OGC], Lucy Clark, Andrea Berlow, 
Jack Haugrud [Justice],'' March 12, 2001.
    \107\ Notes dated 3/12, ``Roadless Policy.'' Attached are notes 
which contain the phrases ``balance bad news with good news'' and ``pro 
environment message going out at the same time'' under the heading 
``White House.''
---------------------------------------------------------------------------
    The next day, on March 13, officials from OMB (including 
the General Counsel's Office and the Office of Information and 
Regulatory Affairs), the Council on Environmental Quality and 
the office of the White House Chief of Staff met with 
representatives of DOJ and USDA to discuss roadless 
issues.\108\ On March 15, David Tenny, Acting Under Secretary 
for Natural Resources and Environment, forwarded to officials 
at the White House and the DOJ draft talking points explaining 
the anticipated request for a delay of the government's filing 
until May 12. He explained that the ``purpose of the 
government's motion is to ensure that this review process can 
continue while also preserving the court's ability to hear the 
plaintiff's case. Until the review of the roadless policy is 
completed, the administration will not comment on the merits of 
the policy.'' \109\
---------------------------------------------------------------------------
    \108\ E-mail string, from Acting Associate General Counsel, Natural 
Resources to Attorney, Office of General Counsel, U.S. Department of 
Agriculture, ``FR Notice,'' March 13, 2001; Sign in sheet, listing 
names and agencies, March 13, 2001.
    \109\ E-mail from Acting Under Secretary for Natural Resources and 
Environment, U.S. Department of Agriculture, to Office of Policy 
Development, Executive Office of the President and Office of the 
Assistant Attorney General, Environment and Natural Resources Division, 
U.S. Department of Justice, ``Talking Points on Idaho Roadless 
Lawsuit,'' March 15, 2001.
---------------------------------------------------------------------------
    By most appearances, the administration lacked a commitment 
to defending the case. On March 16, the date on which 
objections to the request for preliminary injunction were due, 
the United States did not object but filed a Motion for 
Enlargement of Time to allow for review of the rule.\110\ In 
their response to the motion, plaintiffs argued, inter alia, 
that in the Ninth Circuit, ``in a lawsuit to compel compliance 
with NEPA, no one but the Federal Government can be a 
defendant.'' (Citations omitted) \111\ Plaintiffs ``submit that 
defense of an agency's NEPA compliance--the only matter at 
issue in the instant Motion for Preliminary Injunction--is 
within the sole province of the agency.'' \112\
---------------------------------------------------------------------------
    \110\ Kootenai Tribe of Idaho v. Veneman, CV01-10-N-EJL (D. Id. 
March 16, 2001) (Federal Defendant's Motion for Enlargement of Time). 
The request for an enlargement of time was denied. Kootenai Tribe of 
Idaho v. Veneman, CV01-10-N-EJL (D. Id. March 20, 2001) (Order).
    \111\ Kootenai Tribe of Idaho v. Veneman, CV01-10-N-EJL (D. Id. 
March 19, 2001) (Plaintiff's Opposition to Federal Defendants' Motion 
for Enlargement of Time; Motion to Strike Opposition Pleadings of 
Defendant-Intervenors; Request for Entry of Preliminary Injunction at 
3).
    \112\ Id. at 4.
---------------------------------------------------------------------------
    On March 21, the government filed its response to the 
motion for preliminary injunction, and in fact--in what must be 
quite unusual for a party in litigation--did not comment on the 
merits on the case. Rather than making any effort to defend the 
rule, it reported that the ``. . . Secretary of Agriculture is 
prudently conducting a careful review'' of the rule, which the 
USDA anticipated completing prior to May 12, 2001, the 
postponed effective date of the rule.\113\
---------------------------------------------------------------------------
    \113\ Kootenai Tribe of Idaho v. Veneman, CIV 01-010-N-EJL (D. Id. 
March 21, 2001) (Federal Defendants' Opposition to Plaintiff's Motion 
for Preliminary Injunction at 2).
---------------------------------------------------------------------------
    This approach did not sit well with veteran members of the 
department. Immediately after the papers were filed in court, 
the career Chief of the Forest Service (a named defendant in 
the lawsuit) sent a letter to Secretary Veneman expressing his 
frustration at the administration's ``lackadaisical and half-
hearted'' defense of the rule in court and the failure to 
consult with him or the staff that helped to draft the rule 
``in either fashioning the strategy to be used in defending 
against legal challenges or in developing the arguments 
presented in any of the filings made thus far.'' \114\
---------------------------------------------------------------------------
    \114\ Letter from Mike Dombeck, Chief, Forest Service to Secretary 
Ann Veneman, United States Department of Agriculture, Washington, D.C., 
March 23, 2001.
---------------------------------------------------------------------------
    At a consolidated hearing on the two cases, government 
counsel simply made a statement reporting that the USDA planned 
to review the rule. Thus it fell to the intervenors--
environmental groups--to fill the gap by defending the rule, 
including the adequacy of the government's compliance with 
NEPA.\115\ Plaintiffs had asserted that the Forest Service 
failed to comply with NEPA in not considering a reasonable 
range of alternatives to the proposal, in not adequately 
analyzing its cumulative impacts, and in failing to provide a 
legally sufficient notice and comment process. In an order 
issued on April 5, Judge Lodge took note of the lack of a 
government position on the merits of the plaintiffs' case, the 
government's actions postponing the rule, and its commitment to 
undertake a full review. Not surprisingly in light of the 
government's non-defense, Judge Lodge concluded that it was 
likely the plaintiffs would succeed on the merits of their 
claims arising from NEPA. For the time being, the judge 
deferred a decision of whether or not there was irreparable 
injury justifying issuance of a preliminary injunction until 
the government's status report concerning the rule would be 
provided to the court on May 4, 2001.\116\
---------------------------------------------------------------------------
    \115\ Kootenai Tribe of Idaho v. Veneman, CIV 01-10-N-EJL (D. Id. 
March 21, 2001) (Response of Idaho Conservation League to Plaintiff's 
Motion for Preliminary Injunction).
    \116\ Kootenai Tribe of Idaho v. Veneman, 142 F. Supp.2d 1231 (D. 
Id. 2001). The injunction hearing on this case was consolidated with 
State of Idaho v. U.S. Forest Service, CV01-11-N-EJL (D. Id. May 10, 
2001), 2001 U.S. District Lexis 21990.
---------------------------------------------------------------------------
    The April 5 order was followed by further meetings 
regarding ``roadless,'' within USDA, including meetings 
scheduled with the Secretary of Agriculture and with the 
OMB.\117\ Although many of the documents USDA produced for the 
Committee are not tied to specific meetings, what is 
demonstrable in this period is a continuing focus on plans to 
eliminate the national decision to protect roadless areas. For 
example, on April 19, the Acting Under Secretary faxed copies 
of several versions of draft rules rescinding or amending the 
rule to Dale Bosworth, the incoming Chief of the Forest 
Service. One version included the explanation that it was 
``premised on the conclusion that the published roadless rule 
does not meet basic principles of sound environmental decision-
making.'' \118\ As already mentioned, none of the documents 
provided to the Committee indicate how this conclusion was 
reached.
---------------------------------------------------------------------------
    \117\ Scheduling notices: ``Roadless Meeting at OMB,'' April 12, 
2001; ``Briefing on Roadless Issues w/Dave Tenny, Kevin, Dale, Jim 
Moseley,'' April 18, 2001; ``Roadless--with Chris Risbrudt,'' April 25, 
2001; ``Roadless--with the Secretary, Jan Poling, Chris Risbrudt, Bill 
Sexton, Ed Nesselroad,'' 4/27/01; ``Roadless Briefing--Tenny + 4,'' 
April 27, 2001; Unidentified, redacted calendar, April 18 and May 1, 
2001; ``Roadless with the Secretary and Ed Nesselroad,'' 5/1/2001; 
``Briefing on Roadless with the Secretary, Jan Poling, Dale Bosworth, 
and Ed Nesselroad,'' 5/3/2001.
    \118\ U.S. Department of Agriculture, Fax from: Dave Tenny, Office 
of the Under Secretary for Natural Resources and Environment to: Dale 
Bosworth, Subject: ``Roadless Highly Confidential,'' 4/19/01.
---------------------------------------------------------------------------
    Despite their apparent belief that the rule was flawed and 
their efforts to undo it, agency officials seemed hesitant to 
publicly acknowledge their views and plans because of concerns 
of how that might affect public perception of the 
administration's environmental record. An April 16 note 
addressed to ``Dave'' and commenting on a ``road map'' of time 
lines for decision on the roadless rule observed that the 
proposed schedule, ``leaves you virtually announcing the 
Administration's decision on the roadless rule right before 
Earth Day. Perfect timing for opposition interests to make full 
use of the move in the sure to happen `blast the 
administration' initiative around Earth Day.'' \119\ The note 
identified options, recommending that the USDA be prepared to 
act sooner so that the news value ``could be pretty well 
drained out of the media by the time the rule process actually 
comes into play'' and ``if there's a PI [preliminary 
injunction] granted use that as cover. . . .'' \120\ So too, a 
pre-March 30 document cautioned against virtually all of its 
contemplated options, including the preferred option of 
outright rescission of the rule, on the grounds that it might 
feed the ``[p]erception of diminished concern for environmental 
protection.'' \121\
---------------------------------------------------------------------------
    \119\ Unsigned, undated note addressed to Dave.
    \120\ Id.
    \121\ Undated, unidentified document, ``Privileged & Confidential, 
Rulemaking Options for Adjusting the Roadless Rule,'' which contains a 
footnote reference, ``On March 30, 2001 . . . is expected to hold a 
preliminary injunction hearing. . . .''
---------------------------------------------------------------------------
    But, there appeared to be a solution. As one of the option 
papers put it: ``[w]ait for the judge to make a final ruling 
that the rule is illegal and comply with the court order.'' 
\122\ A handwritten notation on the back of a copy of this 
undated document contained in the Acting Under Secretary's 
files states: ``Action: Write brief to prevent unilateral 
rescission--let judge take rule down.'' \123\ In other words, 
it appears that USDA officials were all too happy to have the 
court take the blame for a decision that the administration 
itself supported, but was not willing to take the heat for 
having made.
---------------------------------------------------------------------------
    \122\ Undated, unidentified paper, with heading ``Roadless 
Options:'' with handwritten notes on front and back, from Mr. David 
Tenny's files. (The options document was located in other files as 
well.)
    \123\ Id., back side of document.
---------------------------------------------------------------------------
    The subsequent court filings confirm USDA's apparent 
strategy of using the court case to undermine the rule. On May 
4, 2001, the government filed its Status Report with the court. 
Again, in what must be quite unusual for any agency, or any 
defendant for that matter, it told the court that the 
plaintiffs may well be right:

          The USDA advises that it will propose, in a June 2001 
        rulemaking, retaining the Rule's protections for 
        roadless values while acknowledging the need to include 
        public participation in the forest planning process. 
        States, Tribes, local communities and this court have 
        voiced significant concerns about the process through 
        which the Rule was promulgated. After a review of the 
        Rule and the administrative record, the USDA shares 
        many of these concerns.\124\
---------------------------------------------------------------------------
    \124\ Kootenai Tribe of Idaho v. Veneman, CIV 01-010-N-EJL (D. Id. 
May 4, 2001) (Federal Defendants' Status Report at 2) (hereinafter 
``Status Report'').

The May 4 filing contained only the barest of descriptions of 
---------------------------------------------------------------------------
the USDA's review:

          The Department's review necessarily has addressed 
        both the substance of the Rule and the process leading 
        up to its promulgation. From a substantive perspective, 
        the review examined the geographic scope of the Rule 
        and the prohibitions established by it, as well as the 
        exceptions to those prohibitions. Procedurally, the 
        review focused on the legal requirements for rulemaking 
        processes generally, as well as the process for this 
        particular Rule and the level of public involvement in 
        that process.\125\
---------------------------------------------------------------------------
    \125\ Status Report at 2. See discussion in Section II. A. (1) of 
this report regarding the extent of public participation in the 
rulemaking process.

Other than the statement sharing the concerns, the Status 
Report did not describe the review's findings. As discussed 
above, the internal agency documents provided to the Committee 
did not reflect an examination of the issues described above, 
although some documents contain conclusory statements regarding 
these issues.
    The Status Report included a declaration from the new Chief 
of the Forest Service, Dale Bosworth, \126\ that the USDA and 
the Forest Service would propose amendments to the regulation 
by the end of June 2001. These proposed amendments ``will seek 
to maintain the protections embodied in the current rule'' in 
part ``by retaining the Roadless Rule's principles against 
timber harvesting and road building.'' \127\ With regard to the 
pending request for the preliminary injunction, the government 
made a statement in virtual support of the plaintiffs: 
``although the USDA shares plaintiffs' concerns about the 
potential for irreparable harm in the long-term under the 
current Rule, it would appear unlikely that such harm will 
occur in the short-term given the lengthy planning horizons 
needed for activities in inventoried roadless areas.'' \128\
---------------------------------------------------------------------------
    \126\ Mike Dombeck resigned as Chief of the Forest Service 
effective March 31, 2001. On April 12, 2001, the USDA announced the 
appointment of Dale N. Bosworth to succeed him. USDA Forest Service, 
``USDA Forest Service Chief Mike Dombeck to Retire,'' March 27, 2001; 
United States Department of Agriculture, Office of Communications, 
``Dale Bosworth Selected As USDA's New Forest Service Chief,'' April 
12, 2001.
    \127\ Status Report at 3.
    \128\ Status Report at 4.
---------------------------------------------------------------------------
    The day that the report was filed with the court, May 4, 
2001, Secretary Veneman announced: The ``Department's decision 
to uphold the Roadless Area Conservation Rule. Through this 
action, we are reaffirming the Department of Agriculture's 
commitment to the important challenge of protecting roadless 
values.'' \129\ What's more, the Secretary announced that the 
rule would go into effect on May 12 and that in June, USDA 
would propose amendments to the rule to address issues relating 
to ``informed decision making'': Working with local 
communities, protecting from the effects of wildfire, and 
insuring access to private property in roadless areas. There 
appears to have been no rigorous process supporting the basis 
for the Secretary's announcement that the rule would go into 
effect. Although meetings and briefings on ``roadless'' were 
scheduled with the Secretary during that week, the documents 
produced to the Committee contain no decision document 
presenting options for the Secretary's May 4 announcement.\130\ 
The briefing book dated May 4 contains a tally of support and 
opposition to the Draft Environmental Impact Statement from 
elected officials, and a summary list of ``concerns that have 
been raised.'' \131\ Despite the Secretary's assertions, it is 
clear from the documents that the USDA was in fact working to 
undermine the very protections the Secretary claimed to 
support.
---------------------------------------------------------------------------
    \129\ Office of Communications, U.S. Department of Agriculture, 
``Remarks by Secretary of Agriculture Ann M. Veneman, Roadless Area 
Conservation Rule,'' May 4, 2001.
    \130\ Scheduling notice: ``Roadless--with the Secretary, Jan 
Poling, Chris Risbrudt, Bill Sexton, Ed Nesselroad,'' 4/27/01, 
``Roadless with the Secretary and Ed Nesselroad,'' 5/1/2001, ``Briefing 
on Roadless with the Secretary, Jan Poling, Dale Bosworth, and Ed 
Nesselroad,'' 5/3/2001, and ``Briefing with the Secretary on roadless--
with Dale Bosworth, Ed Nesselroad,'' 5/4/2001.
    \131\ ``Roadless Rule Briefing Book, U.S. Department of 
Agriculture,'' Washington, D.C., May 4, 2001.
---------------------------------------------------------------------------
    Citing the government's concession that the rule was 
flawed, on May 10, 2001, Judge Lodge issued a preliminary 
injunction suspending the rule's implementation--an outcome 
which appears to have been virtually assured by the 
administration's handling of the defense of the rule.\132\ The 
court found the government's ``vague commitment'' to propose 
amendments to the rule indicative of a failure of the agency to 
take the requisite ``hard look'' in preparing the Environmental 
Impact Statement and noted that ``. . . the Federal Government 
has conceded that without the proposed rulemaking amending the 
Roadless Rule there is potential for long-term irreparable 
harm.'' \133\ In other words, the government's general 
acknowledgment of error convinced the court that the USDA 
should be enjoined from implementing the rule.
---------------------------------------------------------------------------
    \132\ State of Idaho v. U.S. Forest Service, CV01-11-N-EJL (D. Id. 
May 10, 2001) (order issuing preliminary injunction at 3). Judge Lodge 
held a consolidated injunction hearing on March 30, 2001 in the 
parallel cases, State of Idaho v. U.S. Forest Service and Kootenai 
Tribe of Idaho v. Veneman.
    \133\ Virtually identical orders were issued in the cases described 
in the footnote above. The order enjoining the rule also enjoined the 
portion of the planning rule that addresses roadless areas (new 36 CFR 
Sec. 219.9(b)). State of Idaho v. U.S. Forest Service, CV01-11-N-EJL 
(D. Id. May 10, 2001). The cases were consolidated for purposes of 
appeal to the Ninth Circuit. Kootenai Tribe of Idaho v. Veneman, No. 
01-35472 et al. (D. Id. May 21, 2001).
---------------------------------------------------------------------------
    Not surprisingly, after failing to defend the rule in the 
first instance, the USDA recommended against appeal of the 
District Court's decision.\134\ In the absence of the 
government's participation, environmental groups--who had been 
granted intervenor status in the case--appealed the decision to 
the Ninth Circuit Court of Appeals. They argued that the 
District Court should not have issued the preliminary 
injunction because it lacked jurisdiction over the claims, in 
part because NEPA's requirement to prepare a detailed 
environmental impact statement was not applicable. 
Alternatively, the intervenors defended the adequacy of the 
Federal Government's environmental impact analysis supporting 
the rule's initial promulgation.\135\
---------------------------------------------------------------------------
    \134\ Letter from James Michael Kelly, Associate General Counsel, 
U.S. Department of Agriculture to John C. Cruden, Acting Assistant 
Attorney General, Environment and Natural Resources Division, U.S. 
Department of Justice, Washington, D.C., May 31, 2001.
    \135\ Kootenai Tribe of Idaho v. Veneman, No. 01-35472, et al. (D. 
Id. May 31, 2001).
---------------------------------------------------------------------------
    As of October 2002, the Idaho preliminary injunction was 
still in effect, further proceedings stayed at the District 
Court level, and the appeal in the Ninth Circuit still pending. 
To date, its effect has been the same as a rescinding of the 
rule, accomplished without the administration ever having to 
publicly detail its evaluation of relevant data or its 
conclusions regarding why the process adopting the rule was 
flawed. By and large, the USDA has avoided the negative 
publicity it feared from a proposal to rescind the rule and, to 
date, has eluded the requirements of the APA to provide for the 
public to comment on a new rule and a reasoned analysis for a 
changed course of action. It has avoided the scrutiny--the 
``hard look''--which is required by the Supreme Court when an 
agency has changed course and rescinded a rule.\136\
---------------------------------------------------------------------------
    \136\ Merrick B. Garland, ``Deregulation and Judicial Review,'' 98 
Harv. L. Rev. 507, 526-568 (1985).
---------------------------------------------------------------------------

  (4) Forest Service Implementing Policies Less Protective than Rule

    Despite the USDA's representation to the court, June 2001 
came and the USDA did not propose a revised rule. Instead, 
citing the preliminary injunction, the pendency of eight 
lawsuits in seven States, and the expectation of protracted 
litigation, the new Chief of the Forest Service issued a policy 
memo reserving to himself all decisions governing roadless 
areas.\137\ On July 10, 2001 USDA issued an Advanced Notice of 
Proposed Rulemaking asking for the public's views on the gamut 
of management issues involving roadless areas.\138\ This 
request fell far short of the new rule USDA told the court it 
would propose by June.
---------------------------------------------------------------------------
    \137\ United States Department of Agriculture, Delegation of 
Authority/Interim Protection of Roadless Areas, June 7, 2001.
    \138\ 66 Fed. Reg. 35918 (July 10, 2001).
---------------------------------------------------------------------------
    The June policy was subsequently incorporated into a series 
of interim directives published in the Federal Register on 
August 22, 2001.\139\ On December 20, 2001, the Forest Service 
published additional interim directives, effective as of 
December 14, 2001 that replaced in large part previous 
directives and continued to reserve authority to the Chief to 
approve or disapprove certain proposed timber harvests in 
inventoried roadless areas.\140\ An analysis, prepared by the 
American Law Division of the Congressional Research Service, 
describes the key elements of the interim directives and the 
circumstances under which timber harvests and road construction 
could occur, without the Chief 's approval, as follows:
---------------------------------------------------------------------------
    \139\ 66 Fed. Reg. 44111 (August 22, 2001). On August 24, 2001 an 
earlier Interim Directive affecting roadless area protection, which was 
effective May 31, 2001, was also published in the Federal Register. 66 
Fed. Reg. 44590 (August 24, 2001).
    \140\ 66 Fed. Reg. 65796 (December 20, 2001).

          The December directive states that the Chief 's 
        authority with respect to timber harvests ``does not 
        apply'' if a Record of Decision for a forest plan 
        revision was issued as of July 27, 2001--as was true of 
        the Tongass National Forest--and will otherwise 
        terminate when a plan revision or amendment that has 
        considered the protection and management of inventoried 
        roadless areas is completed.\141\
---------------------------------------------------------------------------
    \141\ The Forest Service website reported that 12 forests had 
revised forest plans as of July 27, 2001. http://www.fs.fed.us/forum/
nepa/nfmalrmp.html

          The Chief 's authority with respect to road 
        construction is to remain in effect until a forest-
        scale roads analysis is completed and incorporated into 
        each forest plan, at which point it terminates. The 
        Regional Forester is to make many decisions on road 
        construction projects under new Sec. 1925.04b.\142\
---------------------------------------------------------------------------
    \142\ RL30647 at 18.
---------------------------------------------------------------------------

                                . . . .

          . . . until a forest-scale roads analysis . . . is 
        completed and incorporated into a forest plan, 
        inventoried roadless areas shall, as a general rule, be 
        managed to preserve their roadless characteristics. 
        However, where a line officer determines that an 
        exception may be warranted, the decision to approve a 
        road management activity or timber harvest in these 
        areas is reserved to the Chief or the Regional Forester 
        as provided in FSM 1925.04a and 1925.04b.\143\
---------------------------------------------------------------------------
    \143\ 66 Fed. Reg. 65801 (December 20, 2001).

The CRS analysis further states that ``while environmental 
analyses and protection are permissible, and may in fact ensue 
under the new management directives, those outcomes are neither 
compelled nor as likely as they would have been under the 
previous management prescriptions and policies.'' \144\
---------------------------------------------------------------------------
    \144\ RL30647 at 21.
---------------------------------------------------------------------------
    Public comment was requested on the interim policy, after 
it was finalized and published, and the public was advised its 
input would be considered in issuing any final policy.\145\ In 
other words, under cover of the Idaho preliminary injunction, 
\146\ by means of a directive finalized even before public 
comment was requested, the Forest Service established a policy 
essentially having the weight of a rule.\147\ This non-rule 
undercuts the national protections which the roadless area 
conservation rule sought to provide by allowing road 
construction; allowing timber harvests and road construction 
authorized by plans which were issued as of July 27, 2001; and 
ultimately returning such decisions to the forest level when 
the management of roadless areas is considered in the planning 
process. Thus, under cover of the preliminary injunction, the 
Forest Service has essentially changed--at least for the short 
term--a rule which was developed with extensive public comment 
and, which, if formally rescinded, would require public notice 
and comment.\148\
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    \145\ 66 Fed. Reg. 65800 (December 20, 2001).
    \146\ The U.S. Forest Service is affording nationwide effect to the 
injunction which is somewhat ambiguous on its face. Thinning Actions 
for the Bark Beetle Analysis, U.S. Forest Service, Deputy Regional 
Forester, Resources, Decision File Code: 1570 (2002-02-06-0029) A215A 
(July 12, 2002) at 4. This nationwide deference contrasts with the 
position taken by the administration in another case in which the 
court's ruling was protective of the environment. The Army Corps of 
Engineers has worked to limit the effect of an injunction barring them 
from issuing mining permits that allow companies to use waste as ``fill 
material,'' arguing that the injunction should only apply to the 
geographic area under the jurisdiction of the court, not to the entire 
nation. See Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 206 
F. Supp.2d 782 (S.D.W.V. June 17, 2002). (United States' Reply Brief in 
Support of its Motion for a Stay Pending Appeal, for Clarification and 
for Expedited Consideration at 11.)
    \147\ In the context of rulemaking, permitting the submission of 
views after the effective date is no substitute for the right of 
interested persons to make their views known to the agency in time to 
influence the rulemaking process in a meaningful way. City of New York 
v. Diamond, 379 F. Supp. 503, 517 (S.D.N.Y. 1974); Mobil Oil Corp. v. 
Department of Energy, 610 F.2d 796, 805, n. 11 (Em. App. 1979).
    \148\ Interim directives expire 18 months from issuance and may be 
reissued once for a total duration of 36 months. 66 Fed. Reg. 65800 
(December 20, 2001).
---------------------------------------------------------------------------
    In the Summer of 2002, the Forest Service published an 
analysis of public comments received in response to its July 
2001 Advanced Notice of Proposed Rulemaking. Chief Bosworth 
stated that the Forest Service, ``will use the public comments 
to help inform our decision-making on where to go next. . . .'' 
\149\ One appropriate next step is for the Forest Service to 
assure meaningful public involvement by communicating more 
clearly the actions that it is taking. For example, while the 
CRS analysis provided an explanation of the policy changes, it 
also pointed out that the full effect of the December directive 
is difficult to ascertain because of the confusing manner in 
which it is written.\150\ The CRS analysis observed that it was 
difficult to say with any certainty exactly what management 
requirements and direction currently apply or who the decision-
makers are to be in any particular instance.
---------------------------------------------------------------------------
    \149\ USDA Forest Service News Release, ``Forest Service Completes 
Review of Public Comments on Roadless,'' June 26, 2002.
    \150\ The CRS report provided examples of confusing provisions and 
noted:

      L. . . the Notice does not clearly indicate which provisions are 
being replaced or the precise extent of revisions. The published 
explanatory material states that affected material is set out and 
unaffected material is not. Yet, some of the earlier provisions are 
neither shown nor discussed and therefore, may still be in effect. 
However, the final text of new FSM Sec. 1925 does not show these 
undiscussed earlier provisions--as though they are now superseded. 
Therefore it is not clear which of the previous materials is still in 
effect. RL30647 at 16-17.

    In sum, the actions of the USDA in adopting confusing 
manual policies without prior public comment, which effectively 
changed the prohibitions contained in a rule developed with 
extensive public comment, and, which--as discussed--was 
suspended because of the failure of the government to defend 
the rule, reflects a continuing and troubling lack of respect 
for public participation in the administrative process. These 
actions are not just hypothetical concerns about the integrity 
of the administrative process, they have consequences. For 
example, the Forest Service is currently preparing for timber 
sales in an area of the Tongass National Forest, an area in 
which such sales were prohibited by the rule.\151\
---------------------------------------------------------------------------
    \151\ The Forest Service has proposed to harvest an estimated 8 
million board feet on Wrangell Island, Tongas National Forest, Alaska. 
Approximately 65 percent of the proposed sale units are located within 
inventoried roadless areas. 67 Fed. Reg. 10661 (March 8, 2002).
---------------------------------------------------------------------------

  B. Hardrock Mining (``3809'') Regulation

    USDA's summary actions discounting the results of a lengthy 
and public rulemaking process with no apparent substantive 
agency analysis of the promulgated rule were replicated in yet 
another early Bush Administration decision, this time involving 
the dismantling of an important Interior Department rule. On 
November 21, 2000, the DOI published regulations--effective 
January 19, 2001--which were intended to remedy long-standing 
problems associated with hard rock mining for minerals such as 
silver, copper, or gold--so-called ``locatable minerals''--on 
land managed by the Bureau of Land Management (BLM).\152\
---------------------------------------------------------------------------
    \152\ Authority for issuance of the regulation was based in part on 
the Federal Land Policy and Management Act (FLPMA), which provides that 
the Secretary of the Interior is to manage the Federal public lands, 
including those lands containing mining claims located under the Mining 
Law of 1872. 43 U.S.C. Sec. 1732 (b) provides that the Secretary is to 
manage the development of the public land: ``In managing the public 
lands, the Secretary shall, by regulation or otherwise, take any action 
necessary to prevent unnecessary or undue degradation of the public 
lands.'' In addition, 30 U.S.C. Sec. 22, the general statute 
authorizing exploration and purchases of mineral deposits on public 
lands, opens the public lands ``under regulations prescribed by law.''
---------------------------------------------------------------------------
    Hardrock mining occurs on public lands in Alaska, Arizona, 
California, Colorado, Idaho, Montana, New Mexico, Oregon, Utah, 
Washington, and Wyoming.\153\ The Mining Law of 1872 allows 
miners to secure exclusive rights to mine public lands through 
the location of valid mining claims.\154\ It allows free access 
to the public lands for prospecting, and a valid claim entitles 
the holder to purchase surface and mineral rights at the rate 
of $2.50 per acre for placer claims and $5 per acre for lode 
claims.\155\ Mining affects to varying degrees the soil, air, 
groundwater and surface water, aquatic and terrestrial 
vegetation, and wildlife.\156\ As the National Research Council 
(NRC) explained in a report on hardrock mining: ``Actions based 
on environmental regulations may avoid, limit, control or 
offset many of these potential impacts, but mining will, to 
some degree, always alter landscapes and environmental 
resources.'' \157\ Harmful impacts on water quality, vegetation 
and aquatic life often extend beyond the immediate area of the 
mine site.\158\ Repeated failures by mining companies to 
reclaim \159\ sites adversely affected by their mining 
activities have left landscapes throughout the West marred by 
large open pits and land erosion, and water resources polluted 
by toxic drainage.
---------------------------------------------------------------------------
    \153\ An estimated 43 percent of gold production; 36 percent of 
silver; and 1 percent of copper production in the United States comes 
from Federal lands in these States. Department of the Interior, Bureau 
of Land Management, Environmental Impact Statement, Surface Management 
Regulations for Locatable Mineral Operations, October 2000, Vol. 1, at 
268 (hereinafter ``Surface Management EIS'').
    \154\ This is accomplished by individuals and corporations 
obtaining free access to the lands, and upon making a discovery of a 
``valuable mineral deposit,'' staking a claim on the deposit. Claimants 
must pay an annual maintenance fee of $100 to hold the claim, and the 
minerals can be developed without obtaining a patent to the surface 
rights.
    \155\ ``A placer deposit is an alluvial deposit of valuable 
minerals usually in sand or gravel; a lode or vein deposit is of a 
valuable mineral consisting of quartz or other rock in place with 
definite boundaries.'' Marc Humphries, ``Mining on Federal Lands,'' 
Congressional Research Service Issue Brief, IB89130, January 3, 2002, 
at CRS-2 (hereinafter ``IB89130'').
    \156\ Committee on Hardrock Mining on Federal Lands, Committee on 
Earth Resources, Board on Earth Sciences and Resources, Commission on 
Geosciences, Environment, and Resources, National Research Council, 
National Academy of Sciences, Hardrock Mining on Federal Lands, 1999, 
Executive Summary at 3 (hereinafter ``NRC Hardrock Mining Report'').
    \157\ Id.
    \158\ Id. at 1.
    \159\ What constitutes reclamation depends on the individual site. 
The hardrock mining rule identified various components of reclamation, 
including control of or removing acid forming and toxic substances; 
regrading the land to conform with adjacent land; revegetation; 
rehabilitation of fisheries or wildlife habitat; controlling drainage 
and minimizing erosion; removing structures; plugging drill holes; and 
providing for post-mining monitoring or treatment. 64 Fed. Reg. 6452 
(February 9, 1999).
---------------------------------------------------------------------------
    As the EPA has reported: ``Mining in the western United 
States has contaminated stream reaches in the headwaters of 
more than 40 percent of the watersheds in the West.'' \160\ 
However, the full extent of environmental problems at modern 
mine sites is not known, nor are the costs of reclamation and 
remediation.\161\ The GAO issued a series of reports 
highlighting abuses from hardrock mining and the need for 
better bonding of mining operations and reclamation.\162\ 
Fourteen years ago, GAO made statistical projections estimating 
the amount of unreclaimed acreage on Federal land and its cost 
of reclamation at about $284 million.\163\
---------------------------------------------------------------------------
    \160\ Office of Water, United States Environmental Protection 
Agency, Liquid Assets 2000: America's Water Resources at a Turning 
Point, May 2000, at 10.
    \161\ According to the National Research Council, the full extent 
of problems will not be known until better information is collected and 
analyzed. The EPA reports that remediation costs are highly variable 
because of the site-specific nature of environmental problems 
encountered at mine sites. U.S. Environmental Protection Agency, Costs 
of Remediation at Mine Sites, April 1998.
    \162\ U.S. General Accounting Office, Public Lands: Interior Should 
Ensure Against Abuses From Hardrock Mining, GAO/RCED 86-48, March 1986; 
Federal Land Management: Financial Guarantees Encourage Reclamation of 
National Forest System Lands, GAO/RCED 87-157, August 1987; Federal 
Land Management: Limited Action Taken to Reclaim Hardrock Mine Sites, 
GAO/RCED 88-21, October 1987.
    \163\ Federal Land Management: An Assessment of Hardrock Mining 
Damage, GAO/RCED 88-123BR, April 1988, at 1.
---------------------------------------------------------------------------
    Beginning in the 1980's, the increased use of a technology 
called ``cyanide leaching'' to extract gold from relatively 
low-grade ores raised concerns about the adequacy of BLM rules 
to protect land and water resources from such practices.\164\ 
The most common cyanide leaching process, ``heap leaching,'' 
involves digging large pits to extract huge amounts of ore, 
piling the extracted ore into heaps, then spraying a cyanide 
solution over the heaps so that cyanide trickles through the 
ore and strips out the mineral. Cyanide is well known as a very 
poisonous--and sometimes lethal--chemical. High level exposure 
harms the brain and heart; low levels may result in breathing 
difficulties, vomiting, blood changes, and enlargement of the 
thyroid gland.\165\ Acute poisoning may occur from mining-
related accidents, but the ``more common environmental problems 
are likely to result from the chronic contamination of surface 
and ground waters by lower concentrations of cyanides and 
related breakdown compounds. . . . Many of the breakdown 
compounds, while generally less toxic than the original 
cyanide, are known to be toxic to aquatic organisms, and may 
persist in the environment for significant periods of time.'' 
\166\
---------------------------------------------------------------------------
    \164\ 64 Fed. Reg. 6423 (February 9, 1999).
    \165\ U.S. Department of Health and Human Services, Agency for 
Toxic Substances and Disease Registry, ``Cyanide,'' September 1997.
    \166\ Moran, ``Cyanide Uncertainty: Cyanide in Mining: Some 
Observations on the Chemistry, Toxicity, and Analysis of Mining Related 
Waters,'' Invited Paper, Presented at the Central Asia Ecology--99 
Meeting, Lake Issyk Kul, Kyrgyzstan, June 1999.
---------------------------------------------------------------------------
    The 1982 poisoning of the drainage that supplied fresh 
drinking water for the town of Zortman, Montana with 52,000 
gallons of cyanide solution \167\--poisoning which resulted in 
the construction by the mining company (which since has filed 
for bankruptcy protection) \168\ of a community well to provide 
alternative drinking water--and the 1992 contamination of 17 
miles of the Alamosa River in Colorado brought public attention 
to the damage which can result from these practices.\169\ The 
Alamosa spill killed all aquatic life in the contaminated 
stretch and 10 years later, downstream users of water remain 
concerned about the impact of continuing acid mine drainage 
into the Alamosa River on livestock, agricultural crops, and 
wildlife.\170\ To BLM, instances such as this demonstrated that 
``mining operations sometimes carry a risk of serious 
environmental harm that is very expensive, or even impossible 
to repair.'' \171\ BLM, which became increasingly responsible 
for reclamation of sites due to the bankruptcy of operators, 
was also concerned with finding ways to ensure reclamation by 
the operators.\172\
---------------------------------------------------------------------------
    \167\ Mineral Policy Center, MPC Fact Sheet: Cyanide, August 2000.
    \168\ Robert McClure, ``Pegasus Gold--from boom to bankruptcy: 
Miner makes a fortune on public land, sticks taxpayer with cleanup,'' 
Seattle Post-Intelligencer Reporter, June 13, 2001.
    \169\ Mineral Policy Center, MPC Fact Sheet: Cyanide, August 2000.
    \170\ Tripp Baltz, ``Justice Department, Colorado Settle Case With 
Former Owner of Mine Site,'' Daily Environment Report, December 28, 
2000, at A-1; U.S. Geological Survey, The Summitville Mine and Its 
Downstream Effects, An On-Line Update of Open File Report 95-23, 
Updated 11 July 1995. http://geology.cr.usgs.gov/pub/open-file-reports/
ofr-95-0023/summit.htm
    \171\ 65 Fed. Reg. 70083 (November 21, 2000).
    \172\ 64 Fed. Reg. 6442 (February 9, 1999); 65 Fed. Reg. 70007 
(November 21, 2000).
---------------------------------------------------------------------------
    The rule that became effective on January 19, 2001, had 
three principal features: (1) regulations requiring mining 
companies to reclaim the land and clean-up toxic waste; (2) 
updated environmental performance standards which would, among 
other things, reduce groundwater pollution from mining 
activity; and (3) a provision enabling the BLM to deny miners' 
plans of operation that could cause ``substantial irreparable 
harm'' to the area. This last provision--the so-called 
``veto''--was intended to give BLM the ability to regulate 
hardrock mining on public lands where it might prove extremely 
harmful to surrounding areas or inhabitants.

  (1) The Rule's Development

    The hardrock mining rule has a pedigree dating back over 2 
decades. In 1980, the BLM adopted ``surface management'' 
regulations--also called ``3809 regulations'' after the section 
in the Code of Federal Regulations in which they are codified--
to protect public lands from unnecessary or undue degradation 
and to ensure that areas disturbed during the search for and 
extraction of mineral resources would be reclaimed. During the 
first Bush Administration, a consensus began developing that 
these regulations were inadequate. Thus, in 1989, BLM set up a 
task force, which recommended changes in policies.\173\ In July 
1991, BLM published a proposed rule to require submission of 
financial guarantees (bonds) for reclamation for all hardrock 
mining operations greater than casual use, \174\ and in October 
1991, published a Notice of Intent to Propose Rulemaking to 
modify the 3809 regulations, requesting public comment on seven 
questions. These included whether the definition of 
``unnecessary or undue degradation'' in the regulations should 
be revised and whether ``the regulations should contain 
additional environmental and reclamation requirements.'' \175\ 
BLM conducted four public workshops in Western States and 
received written comments.
---------------------------------------------------------------------------
    \173\ 64 Fed. Reg. 6423 (February 9, 1999).
    \174\ The 1980 regulations provided that if an activity would 
disturb more than 5 acres, or take place in certain designated areas, 
the BLM could, at its discretion, require a bond (a firm assurance or 
guarantee that the miner would pay for the cost of reclamation). 43 
C.F.R. Sec. 3809.1-4 and Sec. 3809.1-9 (1980). The effect of this 
provision was that most exploration and some extraction activities were 
not bonded. 56 Fed. Reg. 31602 (July 11, 1991).
    \175\ 56 Fed. Reg. 54815 (October 23, 1991).
---------------------------------------------------------------------------
    In April 1992, a task force consisting of BLM employees 
presented its recommendations to the Director of the BLM. BLM 
then decided to put the initiative on hold, in deference to 
legislative proposals for mining law reform then under 
consideration by the Congress. After two successive Congresses 
without any successful legislation on the issue, Interior 
Secretary Bruce Babbitt announced on January 6, 1997 that BLM 
would pick up the thread and again begin the rulemaking 
process.\176\ Shortly thereafter, in February, BLM issued a 
final bonding rule requiring submission of financial guarantees 
for reclamation of all hardrock mining operations greater than 
casual use.\177\
---------------------------------------------------------------------------
    \176\ 64 Fed. Reg. 6424 (February 9, 1999).
    \177\ 62 Fed. Reg. 9093 (February 28, 1997).
---------------------------------------------------------------------------
    On April 4, 1997, BLM issued a notice informing the public 
of the agency's intent to prepare an Environmental Impact 
Statement for further revision of the regulations, and 
requesting comments on what the scope of the regulations and 
the environmental analysis should be. It specifically requested 
comments on current operation and reclamation requirements and 
the definition of ``unnecessary or undue'' degradation.\178\ 
Throughout 1997 and 1998, in efforts to refine the regulations, 
BLM consulted with representatives of State agencies, sometimes 
under the auspices of the Western Governors Association.\179\ 
BLM held public hearings in 11 Western cities and Washington 
D.C., which were attended by over 1,000 people in total.\180\ 
The Bureau also received more than 1,800 comment letters from 
individuals and representatives of State and local governments, 
the mining industry, and citizens' groups.\181\ In addition, in 
February and August 1998 it posted two drafts of proposed 
regulatory provisions on the Internet for public comment and 
received comments on the drafts from a variety of interested 
parties, including State officials. It also held a series of 
meetings to receive comments from industry representatives, 
citizens, and environmental groups, and made revisions in 
response to these informal comments.\182\
---------------------------------------------------------------------------
    \178\ 62 Fed. Reg. 16177 (April 4, 1997).
    \179\ 64 Fed. Reg. 6424 (February 9, 1999).
    \180\ Id.
    \181\ Id.
    \182\ 64 Fed. Reg. 6425 (February 9, 1999).
---------------------------------------------------------------------------
    The process stalled when the House of Representatives 
included a rider in Interior's Fiscal Year 1998 appropriations 
act to prevent DOI from publishing proposed or final 
regulations prior to November 15, 1998.\183\ This prohibition 
was subsequently extended through September 1999.\184\ In 
October 1998, Congress directed BLM to pay for a study by the 
National Research Council (NRC) Board on Earth Sciences and 
Resources of the National Academy of Sciences to examine the 
control of the environmental effects of hardrock mining.\185\
---------------------------------------------------------------------------
    \183\ Pub. L. 105-83, Sec. 339 (b), 111 Stat. 1543, 1603.
    \184\ Pub. L. 105-277, Division A, Title I--Department of the 
Interior, Sec. 120 (d), 112 Stat. 2681-258.
    \185\ Pub. L. 105-277, Division A, Title I--Department of the 
Interior, Sec. 120 (a), 112 Stat. 2681-257.
---------------------------------------------------------------------------
    When the riders expired, BLM published a Notice of Proposed 
Rulemaking. The February 9, 1999 notice proposed rewriting the 
BLM's 3809 regulations in ``plain English'' and ``upgrading'' 
the regulations in several respects, including requiring 
financial guarantees for all operations greater than casual 
use, insuring the availability of resources for the completion 
of reclamation; implementing provisions of the Federal Land 
Policy and Management Act relating to administrative 
enforcement; requiring a plan of operations for those 
operations more likely to pollute the land and those located in 
sensitive areas and requiring examination of the validity of 
claims before allowing plans of operations to be approved in 
withdrawn areas; \186\ establishing performance standards; and 
defining ``unnecessary or undue degradation.'' \187\ The notice 
gave the public 120 days to submit comments on the proposal.
---------------------------------------------------------------------------
    \186\ DOI has authority to withhold an area of Federal land from 
settlement, sale, location, or entry under the general land laws to 
limit activities under those laws in order to maintain other public 
values in the area or to transfer jurisdiction over an area of Federal 
land from one department or bureau to another. 43 U.S.C. Sec. 1702 (j).
    \187\ 64 Fed. Reg. 6422-23 (February 9, 1999).
---------------------------------------------------------------------------
    On February 17, 1999, BLM sought comment on a Draft 
Environmental Impact Statement analyzing the environmental 
consequences of the existing 3809 regulations, the proposed 
changes, and two additional alternatives.\188\ Immediately 
thereafter, another Congressional rider prohibited issuing a 
final rule until after a 120-day public comment period 
following completion of the NRC report commissioned in 1998. 
DOI's appropriations acts for FY 2000 and FY 2001 provided that 
the Secretary could issue regulations ``which are not 
inconsistent with the recommendations contained in the [NRC 
Report] so long as these regulations are also not inconsistent 
with existing statutory authorities.'' \189\
---------------------------------------------------------------------------
    \188\ The Final Environmental Impact Statement included an 
additional alternative consisting of recommendations made by the 
National Research Council. Surface Management EIS.
    \189\ Pub. L. 106-113, Division B, Appendix C, Title III, Sec. 357; 
Pub. L. 106-291, Title I, Sec. 156.
---------------------------------------------------------------------------
    On September 29, 1999, the National Research Council issued 
its report.\190\ The report assessed the adequacy of the 
existing regulatory framework for hardrock mining and addressed 
a broad range of mining issues, but it did not analyze the 
proposed rule. The NRC concluded that the current regulations 
needed improvement, although the overall structure of Federal 
and State regulation was well coordinated. The NRC recommended 
filling regulatory gaps by requiring financial assurances for 
reclamation of disturbances to the environment caused by all 
mining activities and requiring plans of operations for mining 
and milling operations, regardless of size (with exceptions for 
``casual use''). The NRC said that the BLM and Forest Service 
should improve the criteria for modifications to plans of 
operation; plan for long-term post-closure management of mine 
sites; and provide that land managers could issue 
administrative penalties for violations of regulatory 
requirements.\191\ Upon receipt of the recommendations from 
NRC, BLM opened another 120-day comment period on the proposed 
rule, as required by the Emergency Supplemental Appropriations 
Act, and added a request for comment on the draft EIS.\192\ 
During the two 120-day comment periods in 1999, BLM received 
over 2,500 comments.\193\
---------------------------------------------------------------------------
    \190\ 65 Fed. Reg. 69998-99 (November 21, 2000).
    \191\ Other recommendations included providing better information 
regarding mining on the Federal lands; maintaining a management system 
that effectively tracks compliance with operating requirements; making 
regulatory changes to address temporarily idle mines and abandoned 
operations; the identification of public land areas with cultural and 
environmental sensitivities; more effective and timely participation in 
the planning process under NEPA; improved staffing; and better guidance 
to staff responsible for regulating mining operations. The NRC also 
recommended modifications to existing laws and regulations to promote 
cleanup of abandoned mine sites without causing operators to incur 
additional environmental liabilities. NRC Hardrock Mining Report, 
Executive Summary, at 6-9.
    \192\ 64 Fed. Reg. 57613 (October 26, 1999).
    \193\ 65 Fed. Reg. 69998 (November 21, 2000).
---------------------------------------------------------------------------
    BLM published the final rule on November 21, 2000. The rule 
responded to the recommendations described above, contained 
changes to the proposed rule to insure consistency with 
specific recommendations made by the NRC, and included 
additional regulatory changes considered necessary to prevent 
unnecessary or undue degradation of the public lands, most 
notably, the ``veto'' provision.\194\
---------------------------------------------------------------------------
    \194\ DOI's Solicitor had interpreted the phrase ``not inconsistent 
with'' the report to mean that so long as the final rule did not 
contradict the specific recommendations of the NRC Report, the rule 
could address subject areas BLM determined were warranted to improve 
the regulations and meet the requirements of the FLPMA. 65 Fed. Reg. 
70003 (November 21, 2000).
---------------------------------------------------------------------------
    Following issuance of the revised 3809 rules, mining 
companies and environmental groups filed three lawsuits 
challenging the rules in the U.S. District Court for the 
District of Columbia.\195\ The State of Nevada also sued in 
U.S. District Court for Nevada.\196\ The industry plaintiffs 
and the State of Nevada asserted that BLM violated numerous 
statutes in issuing the regulations. The environmental 
plaintiffs asserted that the rules were not sufficiently 
stringent and improperly allowed mining operations on lands 
without valid mining claims. On January 19, 2001, the judge in 
the lawsuit brought by the National Mining Association (NMA) 
and defended by the Justice Department in the waning days of 
the Clinton Administration denied NMA's motion for a 
preliminary injunction to stay the effective date of the final 
rules, holding that the plaintiff did not successfully meet its 
burden of showing that the revised 3809 rules becoming 
effective would cause irreparable harm and that it, ``is not 
clear that NMA will prevail on any of its causes of action.'' 
\197\
---------------------------------------------------------------------------
    \195\ National Mining Association v. Babbitt, No. 00-CV-2998 
(D.D.C. filed December 15, 2000); Newmont Mining Corporation v. 
Babbitt, No. 01-CV-23 (D.D.C. filed January 5, 2001); Mineral Policy 
Center v. Babbitt, No. 01-CV-73 (D.D.C. filed January 16, 2001).
    \196\ State of Nevada v. Department of the Interior, No. CV-N01-
0040-ECR-VPC (D. Nev. filed January 19, 2001).
    \197\ National Mining Association v. Babbitt, No. 00-CV-2998 
(D.D.C. January 25, 2001) (memorandum and order at 8).
---------------------------------------------------------------------------

  (2) Department Considers Suspension Options

    In contrast to the rules affected by the Card memo, the 
mining rule was already in effect when the Bush Administration 
entered office. Nonetheless, the rule did not escape the new 
administration's sights as a target for regulatory revision. 
Indeed, the mining industry and its supporters apparently 
believed they had a virtual commitment by the incoming 
administration to get rid of the mining rules. A BLM Field 
Manager reported to Washington, D.C. officials regarding her 
conversation with an industry representative: ``They asked me 
if I knew that Bush had signed a moratorium on Jan. 20 
pertaining to the 3809 regs. The information being told to 
company people is that if the document signed on the 20th did 
not stay the regs, that the Administration would find a way to 
do that.'' \198\ On February 2, Governor Guinn of Nevada--a 
State which accounts for approximately 45 percent of the total 
mining claims on public land \199\--wrote to Secretary Norton: 
``When we last spoke concerning the implementation of the 3809 
mining regulations, we were hopeful that they would be subject 
to the moratorium President Bush initiated on the day of his 
inauguration.'' \200\
---------------------------------------------------------------------------
    \198\ String e-mail, Deputy Assistant Director, Minerals, Realty 
and Resource Protection, Bureau of Land Management, Washington Office 
to BLM Field Manager, Elko, Nevada, ``Moratorium on 3809???,'' January 
31, 2001.
      DOI provided the following information in response to a question 
from Senator Lieberman regarding meetings about the rule with outside 
parties:

      LSecretary Norton met with various western Governors, including 
Governor Guinn of Nevada, at which the Governors' concerns with the 
3809 rules may have been discussed. We have no records describing such 
meetings. The Governors of Nevada and Alaska, among others, also sent 
letters to the Secretary . . . expressing their concerns with the 
rules.

    Letter from Shayla Freeman Simmons, Acting Director, Congressional 
and Legislative Affairs to the Honorable Joseph I. Lieberman, Ranking 
Minority Member, Committee on Governmental Affairs, U.S. Senate, April 
6, 2001.
    \199\ IB89130 at CRS-2.
    \200\ Letter from Kenny C. Guinn, Governor, State of Nevada to the 
Honorable Gale Norton, Secretary of the Interior, U.S. Department of 
the Interior, February 2, 2001 (hereinafter ``Governor Guinn letter'').
---------------------------------------------------------------------------
    On February 7, a DOI attorney prepared an internal memo 
regarding Governor Guinn's February 2 request to postpone the 
rules under a provision of the APA which permits agencies 
unilaterally to suspend rules pending judicial review ``where 
justice so requires.'' \201\ Governor Guinn's letter had argued 
that extensive data provided by the States during the 
rulemaking proceeding showed the revisions were unnecessary and 
that postponement of the effective date pending completion of 
judicial review would serve the interests of justice by keeping 
in place the pre-existing 3809 rules that the ``National 
Academy of Sciences believe are fully adequate to protect 
public lands and the environment.'' \202\ The action, he wrote, 
``would avoid the significant losses of revenue and jobs that 
BLM predicts will result from the new rules, until the courts 
decide whether or not the rules are valid.'' \203\
---------------------------------------------------------------------------
    \201\ 5 U.S.C. Sec. 705. Memorandum from Attorney-Advisor to 
Assistant Solicitor, General Legal Services, General Law Division, 
Office of the Solicitor, Department of the Interior, February 7, 2001.
    \202\ Governor Guinn letter.
    \203\ Id.
---------------------------------------------------------------------------
    A paper submitted to the Secretary's Office on February 8 
listed options focused not on whether to suspend the rule, but 
on how--whether through a delay, an administrative rule, or, as 
in the case of the USDA, simply not defending the case.\204\ 
The paper offered no discussion of why the rule was flawed, nor 
indicated the evidentiary basis for upending the results of a 
multi-year regulatory process.\205\ The administration seemed 
bent on pursuing whatever procedural means would best meet its 
predetermined end of suspending the rule. The options outlined 
in the paper were the following:
---------------------------------------------------------------------------
    \204\ E-mail from Attorney-Advisor, Solicitor's Office, 
Headquarters, to Counselor to the Secretary, U.S. Department of the 
Interior, ``Revised draft attached,'' February 8, 2001.
    \205\ The DOI produced and the Majority staff reviewed 
approximately 1,500 pages, consisting primarily of drafts of Federal 
Register notices and press releases, question and answer sheets and 
letters and comments for the public. The Majority staff reviewed an 
additional approximately 200 pages at DOI's offices, after DOI asserted 
that those documents contained ``privileged'' material. The Committee's 
request called for all such documents related to the review of the 
rule, and although they contained materials relevant to such a review, 
including statistics and copies of legal cases, they did not include an 
analysis of the existing rule, therefore, we must conclude that no such 
analysis existed within the Department. Letter from Joseph I. 
Lieberman, Chairman, Committee on Governmental Affairs, United States 
Senate to The Honorable Gale A. Norton, Secretary, Department of the 
Interior, Washington, D.C., June 6, 2001.

          (1) a unilateral postponement of the rule pending 
        judicial review under section 705 of the Administrative 
---------------------------------------------------------------------------
        Procedure Act;

          (2) entering into a stipulation in the litigation 
        with the plaintiffs to delay implementation of the rule 
        and submit it for court approval;

          (3) DOI moving in the litigation for a stay of the 
        rules while the case was pending;

          (4) electing not to further defend the industry and 
        Nevada lawsuits, DOI moving either unilaterally or as 
        part of a settlement for voluntary remand of the mining 
        rules to address the substantial legal deficiencies 
        raised by those plaintiffs and for the court to 
        reinstate the old regulations;

          (5) DOI publishing a notice of proposed rulemaking 
        proposing suspension of the revised rules and 
        reinstatement of the prior rules with a 30-day comment 
        period; and

          (6) DOI promulgating an interim final rule suspending 
        the revised rules and reinstating the prior rules.\206\
---------------------------------------------------------------------------
    \206\ Option paper entitled ``Postponing 3809 Implementation,'' 
drafted by DOI attorney Joel Yudson and given to DOI policymakers.

    The Department's papers reflect that the administration 
again hewed to its familiar pattern: Investing energy in 
exploring how to dismantle this important environmental 
protection--not conducting a serious or substantive analysis of 
the value of the regulations themselves.
    On February 9, a meeting was scheduled between the 
Counselor to the Secretary and attorneys from the DOI's 
Solicitor's Office.\207\ Two days later, on Sunday, February 
11, one of the scheduled meeting participants, an attorney in 
the Solicitor's Office, drafted two versions of a notice for 
the Federal Register. \208\
---------------------------------------------------------------------------
    \207\ E-mail Deputy Associate Solicitor, Solicitor's Office, 
Headquarters, to Staff Assistant, Solicitor's Office, Headquarters, 
Department of the Interior, ``Klee meeting moved to 4:15 today,'' 
February 9, 2001.
    \208\ E-mail, Attorney-Advisor, Solicitor's Office, Headquarters, 
to Deputy Associate Solicitor, Solicitor's Office, Headquarters, 
Department of the Interior, ``Draft Federal Register notices,'' 
February 11, 2001.
---------------------------------------------------------------------------
    On Monday, February 12, an Executive Assistant in the White 
House Office of Strategic Initiatives, \209\ sent an e-mail to 
the Solicitor's Office asking for a copy of the ``BLM memo,'' 
which she thought was ``supposed to be finished.'' \210\ The 
next day, the Counselor to the Secretary sent the options paper 
to the White House, with an explanation saying that she had not 
yet had a chance to talk to the Secretary about the 
options.\211\
---------------------------------------------------------------------------
    \209\ The Office of Strategic Initiatives is responsible for 
coordinating the planning and development of a long-range strategy for 
achieving Presidential priorities.
    \210\ E-mail, White House Office of Strategic Initiatives to 
Solicitor's Office, Headquarters, Department of the Interior, ``Re: BLM 
paper,'' February 12, 2001.
    \211\ E-mail from Counselor, Office of the Secretary to Acting 
Associate Solicitor, Solicitor's Office, Headquarters, forwarded to 
Attorney-Advisor, Solicitor's Office, Department of the Interior, 
February 13, 2001.
---------------------------------------------------------------------------
    On February 27, Secretary Norton met with Governor Guinn of 
Nevada. On March 2, Governor Guinn sent the Secretary another 
letter urging suspension of the mining rules and raising 
particular concerns about the veto and performance standard 
provisions.\212\
---------------------------------------------------------------------------
    \212\ Letter from Kenny C. Guinn, Governor of Nevada to Gale 
Norton, Secretary of Interior, Washington, D.C., March 2, 2001.
---------------------------------------------------------------------------
    A March 9 e-mail reported on a meeting with ``senior 
members of the Secretary's staff last night'' where the author 
learned of the decision to proceed to propose suspension of the 
new rules and reinstate the old rules in their place.\213\ The 
e-mail indicated that DOI planned to keep certain parts, but 
dispose of others. ``For instance, DOI did decide to leave in 
place those portions of the final rule that implement the NRC 
recommendations. As currently drafted, the proposed rule would 
make it clear that DOI does not intend to retain the `SIH' 
standard that is one primary focus of the lawsuits.'' \214\ 
(The SIH standard was the provision for government veto over 
mine operation plans.) However, when the rulemaking notice was 
published, it proposed suspension of the rule, without specific 
attention to plans to eliminate the veto provision. The 
documents provided to the Committee shed virtually no light on 
how the decision regarding the veto provision was made.
---------------------------------------------------------------------------
    \213\ Portion of string e-mail from U.S. Department of Justice 
Attorney Gregory Page, Environment and Natural Resources Division 
replying to Department of the Interior attorney Joel Yudson, 
Solicitor's Office, Headquarters, Department of the Interior, 
discussing a DOI meeting concerning the 3809 rule, Washington, D.C., 
March 9, 2001.
    \214\ Id.
---------------------------------------------------------------------------
    On March 21, 2001, BLM staff communicated with OMB staff in 
the Office of Information and Regulatory Affairs regarding the 
notice of proposed rulemaking for the 3809 rule, indicating 
``Ann Klee at Interior has coordinated with the White House. . 
. . Apparently, WH is eager for this to get out.'' \215\ Two 
days later, on March 23, BLM proposed to suspend the final 
regulations which had been published on November 21, 2000.\216\ 
BLM requested comments on the proposed suspension as well as 
whether some of the provisions should not be suspended while 
BLM conducted a review of the ``substantial legal and policy'' 
concerns raised by plaintiffs in the pending litigation. In a 
horse-before-cart rulemaking process, addressing those 
substantial legal and policy concerns would naturally come 
before a decision to proceed to suspend the rule, but, based on 
the documents, they appear to be an afterthought.
---------------------------------------------------------------------------
    \215\ Ann Klee is the Counselor to the Secretary of the Interior. 
E-mail from Group Manager, Regulatory Affairs, Bureau of Land 
Management, Department of the Interior to Desk Officer, Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
``Subject: 3809,'' March 21, 2001.
    \216\ 66 Fed. Reg. 16162 (March 23, 2001).
---------------------------------------------------------------------------
    BLM explained: ``If a final decision is reached to suspend 
the revised rules, BLM would reinstate the previous rules 
verbatim as a final rule to avoid a regulatory vacuum while 
judicial and administrative review of the revised 3809 rules 
proceed.'' \217\ BLM stated that it ``cannot predict the 
outcome of its review of the issues that have been raised . . . 
at some point either the suspension will be lifted or BLM may 
engage in further rulemaking.'' \218\ The notice stated that 
plaintiffs in the lawsuits had asserted that BLM improperly 
issued the revised rules in violation of a variety of statutes, 
\219\ and the environmental plaintiffs asserted that the rules 
were not sufficiently stringent. While the notice described the 
Nevada Governor's concerns about the loss of jobs and income 
from miners being precluded from engaging in operations that 
they might otherwise pursue, there was no discussion of the 
impact of some of these practices on the natural resources and 
on taxpayers who must pay the costs of clean-up--just a generic 
reference to ``environmental concerns'' raised by the 
plaintiffs in the lawsuit. For example, no mention was made of 
the fact that a joint State/Federal task force in Nevada had 
estimated that there are anywhere from 200,000 to 500,000 
abandoned mine ``features'' in that State, 2,000 to 15,000 of 
which may have the potential to impact surface or ground 
waters.\220\
---------------------------------------------------------------------------
    \217\ 66 Fed. Reg. 16164 (March 23, 2001).
    \218\ Id.
    \219\ Allegations regarding violations of law included the notice 
and comment provisions of the APA, NEPA, the Regulatory Flexibility 
Act, the Federal Land Policy and Management Act, the General Mining 
Law, and prohibitions in the Appropriations Acts for Fiscal Years 1999 
and 2000. As noted above, the plaintiffs had not succeeded in obtaining 
a preliminary injunction to prohibit implementation of the regulation.
    \220\ ``Features'' is not defined. Among the types of features 
listed throughout the report are acid mine drainage, releases from 
tailings ponds, ground and surface water contamination or the potential 
for contamination, heap leaches, elevated levels of cyanide and metals 
in leach pads, drums, trenches, pipelines, and abandoned buildings and 
equipment. The document was prepared, among other reasons, to set 
priorities for funding remediation of abandoned sites in Nevada. State 
of Nevada, Interagency Abandoned Mine Land Environmental Task Force, 
``Nevada Abandoned Mine Lands Report,'' September 1999 at 4.
---------------------------------------------------------------------------
    BLM received approximately 49,000 comments, 95 percent of 
which were opposed to the proposed suspension.\221\ But on 
October 30, 2001 BLM issued a new final rule \222\ which 
amended some provisions of the November 2000 rule and returned 
others to the pre-existing regulations. Notably, the new 
regulation changed the definition of ``unnecessary and undue 
degradation'' to eliminate the provision ``causing substantial 
irreparable harm to significant scientific, cultural, or 
environmental resource values . . .'' and it eliminated the 
provision by which BLM could disapprove a plan of operation 
because it would cause such harm.\223\ It also eliminated the 
sections establishing administrative civil penalties, \224\ and 
took out ``most of the 2000 rules' environmental and 
operational performance standards and replaced them with the 
1980 rule standards,'' \225\ but retained the standards on 
acid-forming materials and leaching operations.\226\ BLM's rule 
returned the liability provisions to the regulations in place 
prior to the 2000 change and retained the financial guarantee 
(``bonding'') provisions to assure ``that mining operators, 
rather than the nation's taxpayers, bear the costs of 
reclaiming mined lands.'' \227\ The Federal Register notice 
invited comments on the final rule indicating that BLM ``may 
make further adjustments to the rules.'' \228\ That same day, 
BLM also published the final rule as a proposed rule ``to 
obtain further public comment on changes to these regulations 
that BLM is adopting in a final rule that appears elsewhere in 
today's Federal Register'' and to seek comment on five topics, 
including whether the regulations published contained ``other 
provisions which are either overly burdensome or fail to 
provide adequate environmental protection,'' whether 
``additional innovative means are available to provide sound 
and reliable financial guarantees,'' and ``whether we should 
amend the regulations regarding BLM's relationship to states 
and the delegations these rules provide.'' \229\
---------------------------------------------------------------------------
    \221\ 66 Fed. Reg. 54836 (October 30, 2001).
    \222\ 66 Fed. Reg. 54834 (October 30, 2001).
    \223\ 66 Fed. Reg. 54849 (October 30, 2001).
    \224\ BLM said it removed the provisions because its authority was 
uncertain and would ``work with the Congress to clarify our 
authority.'' Id. On October 25, 2001, the Secretary transmitted a 
letter to Congress in which she urged Congress to draft legislation 
that includes ``permanent authorization of a mining claim holding fee; 
revision of the patent system; authorization of a production payment 
system; authorization of administrative penalties; and an expanded role 
for the States in managing the mining program.'' Letter to the 
Honorable Jeff Bingaman, Chairman, Committee on Energy and Natural 
Resources, United States Senate, Washington, D.C., from Gale A. Norton, 
Secretary of the Interior, Washington, D.C., October 25, 2001.
    \225\ 66 Fed. Reg. 54836 (October 30, 2001).
    \226\ 66 Fed. Reg. 54845 (October 30, 2001).
    \227\ October 25, 2001 news release.
    \228\ 66 Fed. Reg. 54835 (October 30, 2001).
    \229\ 66 Fed. Reg. 54863 (October 30, 2001). The version of the 
final rule which was published as a proposed rule contained some 
modifications from the final version. The comment period was re-opened 
through May 13, 2002. 67 Fed. Reg. 17962 (April 12, 2002).
---------------------------------------------------------------------------

  (3) Changes Address Industry Concerns

    The changes that were made in the final rule closely track 
what appear to have been initial expectations for the 
regulations, as reflected in a document dated March 22, the day 
before the proposed suspension appeared in the Federal Register 
on March 23, 2001. This seven-page document (marked 
``Preliminary Draft--Not Reviewed or Approved'') consists of a 
chart, which, when compared to the revised regulation published 
on October 30, 2001, raises a question as to how much was 
decided before the proposal was published for comment. It lists 
by subject more than 80 sections of the regulations. The chart 
has columns entitled ``initial assessment'' (retain, modify, 
reconsider, drop) and ``comment/rationale.'' The government 
veto provisions had the initial assessment ``drop.'' Among the 
provisions identified as ``reconsider'' were the joint and 
several liability provisions (``Industry hates; . . .''); 
``performance standards'' (``Entire section requires review. . 
. . Industry believes some of the requirements go too far''); 
and ``civil penalties'' (``NRC supports but legality question. 
Industry opposed.'') \230\ On November 29, 2001, the National 
Mining Association filed a notice of dismissal of its challenge 
to the rule, and the case was dismissed without prejudice.\231\
---------------------------------------------------------------------------
    \230\ Untitled document, March 22, 2001, marked as ``Preliminary 
Draft--Not Reviewed or Approved. Subject to Change'' and Attorney Work 
Product, Deliberative Process/Predecisional, Attorney Client Privilege, 
distributed March 22, and released in litigation.
    \231\ National Mining Association v. Norton, No. 00-2998 (HHK) 
(D.D.C. filed November 29, 2001) (Notice of Dismissal); (D.D.C. filed 
January 10, 2002) (Order dismissing complaint).
---------------------------------------------------------------------------
    In issuing the new final regulation, the BLM concluded that 
its action was consistent with the directive contained in the 
Federal Land Policy and Management Act to ``prevent unnecessary 
or undue degradation'' \232\ of the public lands, determining 
that other existing laws and regulatory requirements were 
sufficient to protect the land.\233\ Of course, the majority of 
these authorities were in place during the time period that BLM 
had not succeeded in controlling the impacts of cyanide leach 
mining which led to the proposal of the change in the first 
place. Thus, it is not surprising that many were skeptical that 
reliance on these requirements would provide adequate 
protection, even with the few new provisions that were 
retained.
---------------------------------------------------------------------------
    \232\ 66 Fed. Reg. 54835 (October 30, 2001). On October 23, 2001, 
the new DOI Solicitor issued a legal opinion in support of the rule. 
(Solicitor's Opinion M-37007, the ``Meyers'' Opinion). It addressed the 
department's legal authority and reversed an opinion issued in December 
1999 by the previous Solicitor (Solicitor's Opinion M-36999, the 
``Leshy'' Opinion). The Leshy opinion had concluded that DOI had the 
authority to deny a plan of operations for a mine and the authority to 
issue new regulations changing the regulation definition of 
``unnecessary or undue degradation'' to clarify that operators must not 
cause ``substantial irreparable harm'' to significant resources that 
cannot be effectively mitigated. Mr. Leshy's conclusion was based in 
part on the language in FLPMA, 43 U.S.C. Sec. 1732 (b): ``The 
conjunction `or' between `unnecessary' and `undue' speaks of a 
Secretarial authority to address separate types of degradation--that 
which is `unnecessary' and that which is `undue'.'' As to activities 
under the Mining Law, he said that the question is not whether a mine 
causes any degradation or harmful impacts, but rather, how much, of 
what character and whether it is ``undue.'' The Meyers opinion 
concluded that the standard established in the 2000 regulations could 
not be supported. He acknowledged that ``unnecessary or undue 
degradation'' is not defined by the statute and that there is no 
legislative history on the matter, nevertheless he concluded, in part, 
that in construing the language in FLMPA regarding ``undue or 
unnecessary degradation,'' the word ``or'' means ``and.''
    \233\ BLM provided the following explanation that existing laws 
were adequate: ``BLM does not need an SIH standard in its rules either 
to protect against unnecessary degradation or to protect against undue 
degradation. FLPMA does not define either concept to mean substantial 
irreparable harm. Moreover, BLM has other statutory and regulatory 
means of preventing irreparable harm to significant scientific, 
cultural, or environmental resource values. These include the 
Endangered Species Act, the Archaeological Resources Protection Act, 
withdrawal under Section 204 of FLPMA (43 U.S.C. Sec. 1714), the 
establishment of areas of critical environmental concern (ACEC's) under 
Section 202 (c)(3) of FLPMA, 43 U.S.C. Sec. 1712 (c)(3) and the 
performance standards in section 3809.420 to recite a partial list.'' 
66 Fed. Reg. 54838 (October 30, 2001).
---------------------------------------------------------------------------
    As noted above, public comment on the proposed suspension 
of the rule was overwhelmingly against the rollback. In a 
hearing before the Senate Governmental Affairs Committee, a 
resident of Yarnell, Arizona expressed his frustrations over 
the impact on his community of the DOI's decision to eliminate 
the ``veto'' provision as a tool to prohibit mining in certain 
circumstances. Without it, he believes that the residents of 
Yarnell have no hope of stopping a proposed open-pit cyanide 
heap-leach gold mine to be located 500 feet from their homes. 
He testified: ``[t]he completed mine would tear down the site 
of our 5,000-foot mountain and replace it with a huge, 400 
foot-deep open pit, unfilled forever. Add to that the fact that 
the mine would use 7 million pounds of cyanide to extract the 
gold, and you have a monumental threat to our town, our water, 
our health, and our safety.'' \234\ (At the time of the 
hearing, the operator had not proceeded further to establish 
operations, however, residents feared an increase in the price 
of gold would rekindle interest in pursuing its operation.)
---------------------------------------------------------------------------
    \234\ Public Health and Natural Resources: A Review of the 
Implementation of Our Environmental Laws, Part I and II, Hearing before 
the Senate Committee on Governmental Affairs, S. Hrg. 107-466 (March 7 
and 13, 2002) (statement of Donald Newhouse, Guardians of the Rural 
Environment).
---------------------------------------------------------------------------
    In essence, after a nearly decade and a half effort aimed 
at improving protection against the ill-effects of hardrock 
mining, the Bush Interior Department issued an amalgamated 
regulation eliminating many of the new provisions that were 
most troublesome to the mining industry. Subsequently, BLM 
began ``evaluating comments, including some on the lack of 
available surety bonds, on its final Surface Management 
regulations'' \235\ and is currently participating in a DOI 
bonding task force examining the industry's ability to get 
bonds as a result of losses in the surety industry after the 
events of September 11.\236\
---------------------------------------------------------------------------
    \235\ Prepared statement of Tom Fulton, Deputy Assistant Secretary 
for Land and Minerals Management, U.S. Department of the Interior, 
Statement on ``Availability of Bonds to Meet Federal Requirements for 
Mining, Oil & Gas Projects,'' before the Subcommittee on Energy and 
Mineral Resources, House Committee on Resources, July 23, 2002 at 3.
    \236\ Id. at 1.
---------------------------------------------------------------------------

  C. Arsenic in Drinking Water Standard

    The Bush Administration's desire to reconsider 
environmental regulations that had been subject to extensive 
consideration repeated itself with the EPA's regulation 
regarding arsenic in drinking water. After decades of study and 
years of public comment, EPA issued a final regulation lowering 
the maximum contaminant level--the ``MCL''--for arsenic in 
drinking water to 10 parts per billion (``ppb,'' also equal to 
micrograms per liter (g/L)) which appeared in the 
printed Federal Register of January 22, 2001.\237\ The EPA 
regulation replaced the 50 parts per billion standard which had 
been in place since 1942.\238\ The new regulation brought the 
U.S. standard into line with the one set by the World Health 
Organization (WHO), \239\ a standard also followed by the 
European Union.\240\ The agency set an effective date for the 
regulation of March 23, 2001 and set certain compliance dates 
effective by January 22, 2004 and January 23, 2006.\241\ The 
delayed starts were due to the lengthy lead time necessary for 
utilities to make the equipment and other changes necessary to 
comply with the regulation. The rule provided that for purposes 
of judicial review, it was promulgated as of January 22, 
2001.\242\ In announcing the rule, EPA observed that the new 
standard would provide additional protection for 13 million 
Americans against cancer and other health problems, including 
cardiovascular disease and diabetes, as well as neurological 
effects.\243\
---------------------------------------------------------------------------
    \237\ 66 Fed. Reg. 6976 (January 22, 2001).
    \238\ Mary Tiemann, ``Arsenic in Drinking Water: Recent Regulatory 
Developments and Issues,'' CRS Report for Congress, RS20672, April 29, 
2002, at CRS-2 (hereinafter ``RS20672'').
    \239\ EPA pointed out that while the same, the WHO standard and the 
EPA's new standard were based on different factors. Therefore, EPA 
observed that a future change in the WHO standard would not necessarily 
lead to a change in the EPA standard. 66 Fed. Reg. 7025 (January 22, 
2001).
    \240\ New Drinking Water Directive. (Council Directive 98/83/EC on 
the quality of water intended for human consumption.) November 3, 1998.
    \241\ 66 Fed. Reg. 6976 (January 22, 2001).
    \242\ Regulations that are subject to judicial review are also 
promulgated for APA purposes. Natural Resources Defense Council v. 
Environmental Protection Agency, 683 F.2d 752, 759 (3d Cir. 1982).
    \243\ U.S. Environmental Protection Agency, Office of Water, 
``Drinking Water Standard for Arsenic,'' January 2001.
---------------------------------------------------------------------------
    Most occurrences in the United States of arsenic exposures 
have been caused by ingesting arsenic in drinking water, or by 
eating plants or animals exposed to arsenic in water. Arsenic 
in water is both naturally occurring--from the erosion of the 
earth's crust--and the result of pollution. It can be 
introduced into the water supply as the result of releases from 
agriculture, mining, and its use as a wood preservative, and as 
an ingredient in paints and semi-conductors.\244\ In a 1999 
report, the National Academy of Sciences (NAS) concluded that 
the EPA's then-in-force maximum contaminant level for arsenic 
in drinking water of 50 ppb ``does not achieve EPA's goal for 
public-health protection and, therefore, requires downward 
revision as promptly as possible.'' \245\ The NAS found 
sufficient evidence from studies in Taiwan, Chile, and 
Argentina to conclude that chronic arsenic exposure, primarily 
from drinking water, caused skin and internal cancers and 
cardiovascular and neurological effects.\246\ NAS concluded 
that large epidemiology studies in Taiwan provided the best 
empirical human data available and there was sufficient 
evidence of a dose-response relationship between those cancers 
and exposure to arsenic in drinking water. For example, one 
study showed that among males, ``mortality increased with 
increasing arsenic concentrations in water for cancers of all 
sites combined, and cancers of the bladder, kidney, skin, lung, 
liver, prostate, and leukemia when considered separately. Among 
females, increase in mortality were observed for all sites 
combined and cancers of the bladder, kidney, skin, lung, and 
liver.'' \247\ From other studies, NAS reported that, ``arsenic 
might induce overt gastrointestinal disturbances, ranging from 
mild abdominal cramping and diarrhea to severe life-threatening 
hemorrhagic gastroenteritis associated with shock.'' \248\ It 
also reported that exposures ``in the range of milligrams to 
grams per day have induced the rapid appearance of serious 
overt cardiovascular manifestations, including hypotension, 
congestive heart failure, and cardiac arrhythmias.'' \249\ NAS 
also reported that ``[a]cute inorganic arsenic intoxication 
that produces initial gastrointestinal or cardiovascular 
symptoms can be followed by . . . central-nervous-system 
effects'' ranging from mild confusion to seizures and 
coma.\250\ Other reported effects include alterations in 
pulmonary, hematological (e.g. anemia) and reproductive/
developmental function, \251\ and in the pigmentation of the 
skin and the development of keratoses.\252\
---------------------------------------------------------------------------
    \244\ RS20672 at CRS-1.
    \245\ Subcommittee on Arsenic in Drinking Water, Committee on 
Toxicology, Board on Environmental Studies and Toxicology, Commission 
on Life Sciences, National Research Council, Arsenic in Drinking Water, 
National Academy Press, Washington, D.C. 1999 (hereinafter ``1999 NRC 
Report''). Executive Summary at 9.
    \246\ 1999 NRC Report, Executive Summary at 2.
    \247\ Another study showed a ``significant association with arsenic 
concentration was found for cancers of the liver, nasal cavity, lung, 
skin, bladder, and kidney in both sexes and for prostate cancer in 
males.'' 1999 NRC Report at 93.
    \248\ 1999 NRC Report at 105.
    \249\ Id. at 106.
    \250\ Id. at 119.
    \251\ U.S. Department of Health and Human Services, Agency for 
Toxic Substances and Disease Registry, 1998.
    \252\ 66 Fed. Reg. 7001 (January 22, 2001).
---------------------------------------------------------------------------

  (1) The Rule's Development

    The SDWA required the EPA to establish limits on the extent 
to which public drinking water may contain different 
contaminants, including arsenic. In 1985, EPA had proposed a 
recommended maximum contaminant level of 50 g/L (or 50 
ppb).\253\ In 1986, Congress included arsenic on a list of 83 
contaminants for which EPA was required to issue new standards 
by 1989. EPA missed that deadline due to its extensive review 
of risk assessment issues.\254\ In the 1996 amendments to the 
SDWA, Congress again directed the EPA to establish a new 
standard for arsenic, this time requiring a proposal by January 
1, 2000 and a final standard by January 1, 2001.\255\ (The 
January 1, 2001 deadline was extended by the EPA's FY 2001 
appropriations act to June 22, 2001.) \256\ The amendments also 
required the development of a comprehensive research plan for 
arsenic and required that EPA conduct its studies in 
consultation with the National Academy of Sciences and others. 
Congress authorized appropriations of $2.5 million for each of 
fiscal years 1997 through 2000 for arsenic studies.\257\
---------------------------------------------------------------------------
    \253\ 50 Fed. Reg. 46936 (November 13, 1985).
    \254\ RS20672 at CRS-2.
    \255\ Pub. L. 104-182, Sec. 109(a).
    \256\ Pub. L. 106-377, Appendix A, Title III, 114 Stat. 1441A-41.
    \257\ Pub. L. 104-182, Sec. 109(a).
---------------------------------------------------------------------------
    The SDWA requires EPA to set two specific concentrations 
for each designated contaminant in drinking water--the maximum 
contaminant level goal (``MCLG'') and the maximum contaminant 
level (``MCL''). The nonenforceable MCLG is the level at which 
no known or anticipated adverse health effects occur and that 
allows an adequate margin of safety, \258\ based on the best 
available information.\259\ EPA must then set an enforceable 
standard (MCL) as close to the MCLG as is ``feasible,'' taking 
into account the best technology, treatment, or other means 
available (and taking costs into consideration).\260\ EPA's 
determination of whether a standard is ``feasible'' is based on 
costs to systems serving more than 50,000 people.\261\ In 1996, 
Congress amended the SWDA to require that when proposing a 
rule, EPA must publish a determination as to whether or not the 
benefits of the standard justify the costs. If EPA determines 
that the benefits do not justify the costs, EPA may set the 
standard at the level that maximizes health risk reduction 
benefits at a cost that is justified by the benefits, \262\ 
although the statute limits the circumstances under which such 
authority can be exercised.\263\ The 1996 amendments also 
provided that States or EPA may grant temporary exemptions from 
the standard if, due to compelling factors--including economic 
factors--a system cannot comply on time.\264\ The SWDA also 
contains the so-called ``anti-backsliding provision''--it 
provides that any revision of a national drinking water 
regulation shall maintain or provide for the greater health of 
persons.\265\
---------------------------------------------------------------------------
    \258\ 42 U.S.C. Sec. 300g-1(b)(4)(A).
    \259\ 42 U.S.C. Sec. 300g-1(b)(3)(A).
    \260\ 42 U.S.C. Sec. 300g-1(b)(4) (B) and (D).
    \261\ RS20672 at CRS-4.
    \262\ S. Rept. 104-169, 30.
    \263\ 42 U.S.C. Sec. 300g-1(b)(6) (A) and (B).
    \264\ 42 U.S.C. Sec. 300g-5.
    \265\ 42 U.S.C. Sec. 300g-1(b)(9).
---------------------------------------------------------------------------
    On December 6, 1996, EPA sought public comment on four 
arsenic research topics.\266\ In 1997, 1998, and 1999 EPA held 
general public meetings to present information on EPA's plans 
to develop a National Primary Drinking Water Regulation, 
seeking input from the regulated community, public health 
organizations, State and Tribal drinking water programs, 
academia, environmental and public interest groups, engineering 
firms, and other stakeholders.\267\ In 1999, it met with State 
representatives and in 2000 held a dialogue with State 
officials and associations that represent elected officials to 
consult on expected compliance and implementation costs.\268\
---------------------------------------------------------------------------
    \266\ 61 Fed. Reg. 64739 (December 6, 1996).
    \267\ 63 Fed. Reg. 3890 (January 27, 1998); 63 Fed. Reg. 15401 
(March 31, 1998); 64 Fed. Reg. 23297 (April 30, 1999); 66 Fed. Reg. 
6993 (January 22, 2001).
    \268\ 66 Fed. Reg. 6993 (January 22, 2001).
---------------------------------------------------------------------------
    In 1997, EPA requested the National Academy of Sciences' 
(NAS) Subcommittee on Arsenic of the Committee on Toxicology of 
the National Research Council to review EPA's assessments of 
arsenic. The resulting NAS report, along with information 
regarding other relevant studies, was made available for public 
review in connection with EPA's publication of its proposed 
rule on June 22, 2000.\269\ The June 22 notice proposed setting 
the MCLG at 0, and the MCL at 5 ppb. EPA had determined that 
the ``feasible'' level was actually 3 ppb, but since the 
benefits at this level would not justify the costs, it proposed 
the 5 ppb standard.\270\ It also requested public comments on 
alternative MCLs of 3, 10, and 20 ppb.\271\ After consideration 
of the comments and further analysis of the costs and benefits, 
EPA ultimately set the standard at 10 ppb, citing its authority 
under the SDWA to set the standard at a level that maximizes 
health risk reduction benefits at a cost that is justified by 
the benefits.\272\ In issuing the final rule, EPA anticipated 
that some water systems would need to utilize the law's 
authority providing for temporary exemptions from the 
standard.\273\
---------------------------------------------------------------------------
    \269\ 65 Fed. Reg. 38899 (June 22, 2000).
    \270\ RS20672 at CRS-4.
    \271\ 65 Fed. Reg. 38888 and 38899 (June 22, 2000).
    \272\ 66 Fed. Reg. 7045 (January 22, 2001).
    \273\ 66 Fed. Reg. 6988 (January 22, 2001).
---------------------------------------------------------------------------
    As soon as the decision was announced, the National Mining 
Association, the American Wood Preservers Institute, the 
Western Coalition of Arid States, the States of Nebraska and 
New Mexico, as well as the Cities of El Paso, Texas, 
Albuquerque, New Mexico and Superior, Nebraska all challenged 
the rule in the U.S. Court of Appeals for the District of 
Columbia.\274\ In their view, EPA had moved hastily with its 
decision to lower the maximum level of allowable arsenic.\275\ 
Among their objections were costs, disagreements with the 
conclusions EPA reached regarding the scientific support for 
the standard, questions about the feasibility of treatment 
technology, and complaints that EPA ignored issues raised by 
its science advisory board.\276\ The American Wood Preservers 
Institute--whose members pressure-treat lumber and wood 
products with a mixture that includes arsenic--was concerned 
about EPA's finding that there is no safe threshold for 
arsenic.\277\ The Natural Resources Defense Council (NRDC) sued 
to strengthen the standard.\278\
---------------------------------------------------------------------------
    \274\ American Wood Preservers Institute v. Environmental 
Protection Agency, No. 01-1097 (D.C. Cir. filed March 1, 2001), State 
of Nebraska, ex rel. v. Environmental Protection Agency, No. 01-1101 
(D.C. Cir. filed March 5, 2001), City of Albuquerque v. Environmental 
Protection Agency, No. 01-1105 (D.C. Cir. filed March 6, 2001), City of 
El Paso v. Environmental Protection Agency, No. 01-1106 (D.C. Cir. 
filed March 6, 2001), State of New Mexico v. Environmental Protection 
Agency, No. 01-1107 (D.C. Cir. filed March 7, 2001), Western Coalition 
of Arid States (``WESTCAS'') v. Environmental Protection Agency, No. 
01-1108 (D.C. Cir. filed March 7, 2001), National Mining Association v. 
Environmental Protection Agency, No. 01-1109 (D.C. Cir. filed March 7, 
2001).
    \275\ Darren Samuelsohn, ``Arsenic: EPA's Rule Invites Lawsuits 
Legislation,'' Greenwire, March 9, 2001; ``Arsenic: Evidence Strong for 
New EPA Standard--NAS,'' Greenwire, September 12, 2001.
    \276\ American Wood Preservers Institute v. Environmental 
Protection Action, No. 01-1097 (D.C. Cir. March 22, 2002) (Non-Binding 
Statement of Issues filed by American Wood Preservers Institute at 2) 
(Statement of Issues Submitted by Petitioners State of New Mexico, City 
of Albuquerque, City of El Paso and Western Coalition of Arid States at 
2-3).
    \277\ Thomas E. Knauer, ``EPA Issues Controversial Arsenic 
Standard,'' Virginia Environmental Compliance Update, March 2001.
    \278\ Cindy Skrzycki, ``The Regulators: Wood Preservers Feel the 
Pressure,'' The Washington Post, March 20, 2001. NRDC subsequently 
withdrew this petition for review. Natural Resources Defense Council v. 
Whitman, No. 01-1291 (D.C. Cir. April 16, 2002) (Unopposed Motion for 
Voluntary Dismissal).
---------------------------------------------------------------------------

  (2) Arsenic Rule Targeted for Change

    Although it is unclear exactly when, it appears that the 
Bush Administration targeted the arsenic rule for review even 
before it took office and had its new EPA administrator engage 
in any review of the extensive administrative record. The 
regulation is listed on an undated, untitled document submitted 
by EPA which appears to summarize the responses to a 
questionnaire for the Transition Advisory Team regarding 
``significant administrative actions that should be reviewed 
early in the Administration.'' The document states: ``This rule 
significantly lowers the allowable limit for arsenic in 
drinking water and should be reviewed to ensure that its 
benefits are justified in light of its costs.'' Another 
unidentified and undated document provided during the inquiry 
states ``the Administration should actively review this 
[arsenic] rule'' and describes the regulatory implications as 
follows: ``EPA may adopt inappropriately conservative risk 
assessment assumptions used in this rule in development of 
other water quality criteria.'' \279\
---------------------------------------------------------------------------
    \279\ This document has a matrix entitled ``Regulatory Actions 
Subject to Bush Administration Regulatory Review Plan'' and lists 10 
EPA regulatory actions.
      Administrator Whitman's representative reported that ``two 
meetings were held between EPA representatives and the Bush 
Administration transition team after November 7, 2000, at which the 
arsenic rule may have been discussed.'' Letter from Edward D. Krenik, 
Associate Administrator, Office of Congressional and Intergovernmental 
Relations, U.S. Environmental Protection Agency to the Honorable Joseph 
I. Lieberman, Chairman, Committee on Governmental Affairs, United 
States Senate, Washington, D.C., July 10, 2001.
---------------------------------------------------------------------------
    After the 10 ppb standard appeared in the Federal Register 
dated January 22, 2001, a member of the White House staff and a 
representative of Kennecott Utah Copper Corporation--which had 
supported continuation of the 50 ppb standard \280\--contacted 
EPA to question the publication of the final arsenic rule in 
light of the Card memo's requirements.\281\ The response was 
deferred to the ``transition team'' for an answer, but the 
understanding among EPA staff was that the Federal Register 
``went to bed on Friday'' and the new administration could not 
stop publication.\282\ That understanding was consistent with 
the position taken by the Office of Federal Register where an 
official stated that the rules which appeared in the Federal 
Register on Monday, January 22, 2001 were actually printed on 
the evening of January 19, 2001 and the morning of January 20, 
2001. ``Therefore . . . rules published on January 22, 2001, 
should be counted as `published' by the time the Card 
memorandum was issued'' \283\--and thus final.
---------------------------------------------------------------------------
    \280\ Letter from Robert J. Fensterheim, Executive Director, 
Environmental Arsenic Council, Washington, D.C. to J. Charles Fox, 
United States Environmental Protection Agency Headquarters, Washington, 
D.C., November 20, 2000. (The Environmental Arsenic Council is a trade 
organization representing chemical and mining companies, including 
Kennecott Corporation.)
    \281\ E-mail from Congressional Liaison Staff, Office of 
Congressional and Intergovernmental Affairs, to staff, Office of 
Congressional and Intergovernmental Affairs, U.S. Environmental 
Protection Agency, ``White House staff call re: arsenic,'' January 29, 
2001. E-mail from ``Adams, William (KUCC)'' to staff, Target and 
Analysis Branch, Standard and Risk Management Division, Office of 
Ground Water and Drinking Water, U.S. Environmental Protection Agency, 
``Re: Request for hard copies of the Arsenic Final Rule and Fact 
Sheets,'' January 22, 2001.
    \282\ E-mail string, from Attorney, Water Law Office, Office of 
General Counsel, to staff, Target and Analysis Branch, Standard and 
Risk Management Division, Office of Ground Water and Drinking Water, 
U.S. Environmental Protection Agency, ``Re: Request for hard copies of 
the Arsenic Final Rule and Fact Sheets,'' January 30, 2001; E-mail 
string from Associate General Counsel, Water Law Office, Office of 
General Counsel, to Acting Assistant Administrator, Office of Water, 
``Request for hard copies of the Arsenic Final Rule and Fact Sheets,'' 
January 30, 2001.
    \283\ GAO-02-370R at 3.
---------------------------------------------------------------------------
    The new administrator received requests to reconsider the 
rule, mirroring arguments that had been raised against the 
standard and which were analyzed and addressed during the 
lengthy rulemaking process.\284\ For example, the National 
Rural Water Association sent a brief memorandum asking EPA to 
``take another look'' at the rule ``to include enhanced 
flexibility for small towns faced with outrageous costs. . . 
.'' \285\ Members of Congress from Western States also voiced 
their concerns that utilities and States in areas with the 
highest naturally occurring levels of arsenic would bear a high 
cost of compliance.\286\ The Director of the Office of Ground 
Water and Drinking Water, Office of Water (OW) asked staff of 
the OW and the Office of General Counsel (OGC) to prepare 
talking points for use if there were an opportunity to engage 
Administrator Whitman on arsenic. Staff prepared a one-page 
document which broadly outlined the status of the regulation, 
its time sensitivity, a summary of the regulation, its 
regulatory impacts, and stakeholder involvement to date and 
stakeholder reaction. The document noted OMB's preference for a 
``higher final MCL based on their belief that EPA had 
underestimated the costs of compliance and was overly 
conservative in the Agency's risk analysis for arsenic.'' \287\ 
An additional page of talking points, which appear to have been 
prepared by the staff of the OW, state: ``We believe that the 
final MCL of 10 ppb is appropriate from a number of 
standpoints: health effects, science, uncertainties, costs and 
benefits.'' \288\ There were concerns expressed within the 
agency about a change:
---------------------------------------------------------------------------
    \284\ 66 Fed. Reg. 6987-89, 6992, 7018-22, 7036, and 7038-7044 
(January 22, 2001).
    \285\ Memorandum from Mike Keegan and John Montgomery, National 
Rural Water Association, to Administrator Whitman, Environmental 
Protection Agency, January 31, 2001; Letter from Robert Johnson, Chief 
Executive Officer, National Rural Water Association to W-99-16 Arsenic 
Comment Clerk, Environmental Protection Agency, Washington, D.C., 
August 30, 2000.
    \286\ Letter from Representative Doug Bereuter, et al., U.S. House 
of Representatives to Christine Whitman, Administrator, Environmental 
Protection Agency, Washington, D.C., January 30, 2001; Letter from 
Senator Pete Domenici, U.S. Senate to Christine Whitman, Administrator, 
Environmental Protection Agency, Washington, D.C., February 12, 2001.
    \287\ E-mail from Chief, Targeting and Analysis Branch, Standard 
and Risk Management Division, Office of Ground Water and Drinking Water 
to Director, Office of Ground Water and Drinking Water, Office of 
Water, U.S. Environmental Protection Agency, February 12, 2001, with 
attachment, ``Arsenic in Drinking Water Final Rule.''
    \288\ Id. and e-mail from Chief, Targeting and Analysis Branch, 
Standard and Risk Management Division, Office of Ground Water and 
Drinking Water to Director, Office of Ground Water and Drinking Water, 
Office of Water, ``Revised Talking Points on Arsenic,'' February 13, 
2001, with attachment, ``Arsenic in Drinking Water. Additional Talking 
Points.''

          EPA could have set a more stringent standard (3 ppb), 
        based on good science and available technologies. 
        However, as SDWA allows, EPA took cost considerations 
        into account and set a reasonable standard (10 ppb). . 
        . . The rule as written allows us to re-open it a later 
        date based on new information. If EPA were to re-open 
        the rule now, the debate will be contentious and highly 
        politicized, and decision making will be very 
        difficult. . . .\289\
---------------------------------------------------------------------------
    \289\ E-mail from Policy Staff, Immediate Office of the Assistant 
Administrator to Elizabeth Laroe, Acting Director, Water Policy Staff, 
Office of Water, U.S. Environmental Protection Agency, February 22, 
2001.

The outgoing General Counsel had identified the obstacles 
presented by the APA and the SDWA in delaying--and changing--a 
rule already published in the Federal Register, \290\ a concern 
shared by the Acting General Counsel: ``We have no good cause 
argument to make here. . . . A revision to the Jan. 22 rule 
requires a record that explains why we have changed our mind . 
. . and a revision that makes the standard less stringent 
without a prior withdrawal is problematic under the SDWA 
``anti-backsliding'' provision, which states that any revision 
to a drinking water standard must maintain or provide for 
greater health protection.'' \291\
---------------------------------------------------------------------------
    \290\ Memorandum from General Counsel to Deputy Administrator, 
Subject: ``Whether the Administrator can withhold, withdraw from 
publication or revise a rule document that has been signed and 
published in the Federal Register, or otherwise disseminated, without 
going through further notice and comment rulemaking procedures,'' U.S. 
Environmental Protection Agency.
    \291\ This discussion occurs in the context of an ``interim final 
rule option,'' applying the ``good cause'' exemption contained in the 
Administrative Procedure Act. Notes of Acting General Counsel, U.S. 
Environmental Protection Agency, ``Interim Final Rule Option,'' March 
4, 2001.
---------------------------------------------------------------------------
    On March 6, 2001, staff from the OW and other staff briefed 
the Counselor to the Administrator on the background and 
options for the arsenic standard, including a discussion of the 
impact of the law's anti-backsliding provisions, and concerns 
expressed by some States regarding costs. The prepared slides 
contained OW's recommendation:
    Support the final rule because

          --LIt took over 20 years to issue and we need to move 
        forward to ensure safe drinking water.

          --LWhile some questions remain, there is more than 
        adequate scientific support for the rule.

          --LIt is a reasonable decision that is entirely 
        consistent with the international community. (e.g., 
        World Health Organization; European Union both set the 
        standards at 10 ppb).\292\
---------------------------------------------------------------------------
    \292\ Office of Water, ``Providing Safe Drinking Water: The Role of 
the New Arsenic Standard, Briefing for Jessica Furey,'' Counselor to 
the Administrator, U.S. Environmental Protection Agency, March 6, 2001.

    This was followed by a briefing for Administrator Whitman 
on March 8--the slides for that briefing did not include this 
recommendation.\293\ A briefing paper provided to Administrator 
Whitman in advance identified ``Key Policy Issues: Many 
utilities and States in most hard-hit areas believe final rule 
is overly stringent, citing the relatively high costs of 
compliance and uncertainties surrounding the health effects 
science.'' \294\ During this time, representatives of the 
American Water Works Association \295\ and the Western 
Governor's Association (WGA) were in contact with the EPA 
regarding the standard. The WGA proposed a forum with 
Administrator Whitman to discuss the new arsenic rule--a forum 
for which the proposed topics included EPA's authority to void 
the new rule.\296\ Notes made by the acting assistant 
administrator, Office of Water, from a March 12 meeting with 
agency officials states: ``Revisit arsenic rule. Not convinced 
on. Need options: legal and policy.'' \297\
---------------------------------------------------------------------------
    \293\ Office of Water, ``Providing Safe Drinking Water, The Role of 
the New Arsenic Standard,'' Briefing for Governor Christine Whitman, 
Administrator, U.S. Environmental Protection Agency, March 8, 2001.
    \294\ Copy of e-mail from Director, Office of Ground Water and 
Drinking Water, Office of Water to Counselor to the Administrator, 
Office of the Administrator, ``Two-Pager for the Administrator on 
Arsenic,'' attachment ``Final Arsenic in Drinking Water Rule,'' March 
7, 2001 with handwritten notation, ``Given to CTW prior to 3/08/01 
briefing.''
    \295\ E-mail from Alan Roberson, Director of Regulatory Affairs, 
American Water Works Association to Counselor to the Administrator, 
Office of the Administrator and Deputy Associate Administrator, Office 
of Congressional and Intergovernmental Relations, U.S. Environmental 
Protection Agency referring to conversation that took place 
``yesterday,'' March 13, 2001.
    \296\ E-mail from Shaun McGrath, Program Manager, Western 
Governor's Association to U.S. Environmental Protection Agency, ``WGA 
Arsenic Forum,'' March 7, 2001, with attached draft agenda.
    \297\ Notes from 3/12 meeting of Acting Assistant Administrator, 
Office of Water, U.S. Environmental Protection Agency.
---------------------------------------------------------------------------
    EPA officials were in communication with the White House 
regarding a proposed withdrawal of the standard. On March 14, 
EPA submitted by e-mail the weekly cabinet report to the 
Executive Office of the President, which identified plans for 
arsenic:

          EPA is discussing with White House staff the 
        recommendation for a proposed withdrawal of the arsenic 
        standard for drinking water in order to seek additional 
        public comment and input and to pursue external peer 
        review. . . . Issues under question include the 
        inconclusiveness of health effects studies in 
        establishing a safe level of arsenic and the cost-
        benefit aspect of the rule, which has a 
        disproportionate impact on small systems. . . . The 
        Administrator will participate in roundtable 
        discussions at a Western Governors' Association 
        meeting.\298\ . . . A decision to propose to withdraw 
        the rule will not lessen protection conferred by the 
        existing standard during the time of the review.\299\
---------------------------------------------------------------------------
    \298\ On March 22, Administrator Whitman participated in a forum 
organized by the WGA to discuss the rule. Reportedly, she expressed 
uncertainty regarding the level of appropriate protection and stated--
``We want to make sure all the stakeholders come to the table'' during 
a new comment period. . . .'' Kit Miniclier, ``Tougher arsenic standard 
promised, EPA reassures West on drinking water,'' The Denver Post, 
March 23, 2001 at A-01.
    \299\ E-mail from Associate Director, Drinking Water Protection 
Division, Office of Water, U.S. Environmental Protection Agency to 
Executive Office of the President, ``Weekly Cabinet Report: 
Environmental Protection Agency,'' March 14, 2001.

The March 15 notes made during a meeting with Administrator 
Whitman contain the notation: ``meeting with Bridgeland Arsenic 
Rule.'' \300\ (John Bridgeland is the Director of the White 
House Office of Domestic Policy.)
---------------------------------------------------------------------------
    \300\ Notes of Associate Administrator, Office of Communications, 
Education, and Media Relations, U.S. Environmental Protection Agency 
during meeting with Administrator Whitman, March 15, 2001.
---------------------------------------------------------------------------
    Less than 2 weeks after her briefing, on March 20, 
Administrator Whitman, noting that she wanted to examine ``what 
may have been a rushed decision'' and to be ``sure that the 
conclusions about arsenic in the rule are supported by the best 
available science,'' announced that EPA would ``propose to 
withdraw the pending arsenic standard for drinking water that 
was issued on January 22.'' \301\ Without providing specifics, 
or explaining how the decades long deliberations that produced 
the rule could be characterized as a ``rushed decision,'' EPA 
Administrator Whitman cited concerns about scientific 
uncertainty and high implementation costs \302\ reportedly 
telling representatives of water agencies: ``In short, we're 
going to replace sound-bite rule-making with sound-science 
rule-making.'' \303\ In a Letter to the Editor of The New York 
Times, she noted: ``Sound science and strong analysis should 
not be overlooked in a rush to an arbitrary deadline.'' \304\ 
This theme was reiterated by President Bush who reportedly was 
quoted as arguing that: ``At the very last minute, my 
predecessor made a decision, and we pulled back his decision so 
that we can make a decision based upon sound science and what's 
realistic.'' \305\
---------------------------------------------------------------------------
    \301\ Communications, Education, and Media Relations, U.S. 
Environmental Protection Agency, ``EPA to Propose Withdrawal of Arsenic 
in Drinking Water Standard; Seeks Independent Reviews,'' March 20, 
2001.
    \302\ Jocelyn Kaiser, ``Science Only One Part of Arsenic 
Standards,'' 291 Science at 2533, March 30, 2001; ``EPA Reinstates Its 
Arsenic Rule,'' 108 Chemical Engineering at 23, December 1, 2001.
    \303\ Bill McAllister, ``Arsenic standard dumped. Bush drops 
tougher Clinton regulations on drinking water,'' The Denver Post, March 
21, 2001 at A-01.
    \304\ Christine Todd Whitman, Administrator, Environmental 
Protection Agency, Letter to the Editor, The New York Times, March 23, 
2001, at A-18.
    \305\ David L. Greene, ``Economy comes first Bush says: President 
places people's energy needs ahead of environment,'' The Baltimore Sun, 
March 30, 2001 at 1A.
---------------------------------------------------------------------------
    Administrator Whitman's reported assertion that the final 
rule was based on ``sound-bite'' rather than ``sound-science'' 
rulemaking \306\ was a serious allegation suggesting non-
compliance with a core requirement of the SDWA. The act 
requires the administrator to use the best available, peer-
reviewed science studies in setting standards.\307\ In this 
case, the rule was decades in the making; arsenic had been the 
subject of numerous scientific studies; and the 1999 report 
from the National Academy of Sciences had concluded that 
downward revision of the limit from 50 ppb was required as 
``promptly as possible.''
---------------------------------------------------------------------------
    \306\ Supra, notes 303 and 304.
    \307\ 42 USC Sec. 300g-1(b)(3)(A).
---------------------------------------------------------------------------
    Before suggesting that the agency's own final rule and 
analysis of the science was in need of further review, it is 
reasonable to expect the administrator to articulate the basis 
for her concerns with the rule and the science. Under court 
challenge, EPA would ultimately be required to provide a 
rational basis and a new record for concluding that the final 
standard required replacement and a different standard was 
justified, particularly in the face of an extensive record 
supporting the January 2001 rule. Yet, it appears that it was 
only after the administrator's announcement of the decision to 
propose to withdraw the rule that officials focused attention 
on a key element of the decisionmaking process supporting the 
January rule--the record. On March 21, EPA staff were advised 
of an upcoming meeting with the ``Transition Team'' to discuss 
``the record for the arsenic rule.'' \308\
---------------------------------------------------------------------------
    \308\ E-mail from Chief, Targeting and Analysis Branch, Standard 
and Risk Management Division, Office of Ground Water and Drinking 
Water, to Division Director, Office of Ground Water and Drinking Water, 
Office of Water, U.S. Environmental Protection Agency, ``Arsenic--
Meeting with the Administrator's Staff on Monday, March 26,'' March 21, 
2001. The e-mail asks recipients to prepare an overview of the formal 
procedural steps that were followed, the process used to develop the 
major elements of the rule, outreach efforts, and ideas for obtaining 
additional review of ``controversial'' pieces.
---------------------------------------------------------------------------
    The documents made available for review reflect that prior 
to the administrator's announcement of her concerns about 
``sound-science,'' the agency undertook no comprehensive review 
of either the record or the science supporting the January 2001 
standard. What there is consists of three pages of notes of a 
Bush appointee reviewing regulations at the EPA, that list a 
variety of issues and observations, including what appear to be 
concerns raised by OMB.\309\ In essence, when announcing the 
proposed rollback, the administrator seemed to be practicing 
the very ``sound-bite'' policymaking that she criticized.
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    \309\ The notes include the statement ``look at incremental gains 
from 20 to 10'' and the notation: ``call John Graham.'' (John Graham 
was Director of the Center for Risk Analysis at the Harvard School of 
Public Health until March 15, 2001. On July 19, 2001, he was confirmed 
by the U.S. Senate as Administrator of the Office of Information and 
Regulatory Affairs at OMB.) Notes of Program Advisor, Office of the 
Administrator, U.S. Environmental Protection Agency, March 16, 2001.
---------------------------------------------------------------------------
    Upon hearing of the administrator's March 20 announcement, 
some career staff within EPA expressed surprise and 
unhappiness, with one voicing the opinion that, in fact, much 
of the science pushed for a more stringent standard 
(5g/l) than was adopted.\310\ In response to a 
complaint about not involving the arsenic MCL team in the 
discussion, a senior OW official explained the decision: ``As 
I'm sure you can appreciate, this was a policy decision on the 
part of the Administration. We were given the chance to brief 
the administrator and made, I believe, a strong case for the 
rule.'' \311\ Another noted that options were fairly discussed 
and ``[it] was made very clear that this was not a science but 
a policy decision under consideration.'' \312\ This is telling. 
In decisions regarding public health and environmental 
protection, policy decisions should be science-based 
decisions--the two types of decisions should not be considered 
mutually exclusive.
---------------------------------------------------------------------------
    \310\ E-mail from Arsenic MCL Team, to Acting Deputy Assistant 
Administrator for Science, ``Note to As team,'' forwarding message and 
reply, U.S. Environmental Protection Agency, March 21, 2001.
    \311\ E-mail from Chief, Targeting and Analysis Branch, Standard 
and Risk Management Division, Office of Ground Water and Drinking Water 
to Arsenic MCL Team, ``EPA to Propose Withdrawal of Arsenic Standard,'' 
U.S. Environmental Protection Agency, March 20, 2001.
    \312\ E-mail from Acting Deputy Assistant Administrator for Science 
to Arsenic MCL Team, ``EPA to Propose Withdrawal of Arsenic Standard,'' 
U.S. Environmental Protection Agency, March 21, 2001.
---------------------------------------------------------------------------
    Sixty days after issuance of the Card memo, on March 23, 
2001, EPA published a Federal Register notice delaying, without 
public comment, the effective date of the new rule from March 
23 until May 22, 2001, except for specific amendments which 
were not effective until 2004 and 2006.\313\ The notice used 
the OMB model language to invoke the rule of procedure and 
``good cause'' exceptions to the APA to justify avoidance of 
the public comment process. Once again, the rationales for 
invoking the exceptions to public notice and comment do not 
stand up to scrutiny. Clearly, the procedural exemption did not 
apply. A regulation establishing the acceptable maximum 
contaminant level for arsenic in water is not a rule governing 
the conduct of agency proceedings, but a substantive health and 
environmental protection standard required by the SDWA. 
Furthermore, no attempt was made to justify, based on the 
specific facts of the rule, that ``good cause'' for a delay 
existed. (One staff person at EPA raised the question as to 
whether or not the rule was covered by the Card memorandum 
since the rule was issued ``pursuant to'' a statutory deadline 
(Exemption 4 of the Card memo). However, there was also a 
question suggesting that the transition team wanted the rule 
reviewed in any event.) \314\ This unsupported use of the APA 
exemptions is another indication of decisionmakers who either 
did not respect or did not understand the role of public 
comment in the rulemaking process.\315\
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    \313\ 66 Fed. Reg. 16134 (March 23, 2001).
    \314\ E-mail string, including e-mail from Attorney, Water Law 
Office, Office of General Counsel to Policy Staff, Immediate Office of 
the Assistant Administrator, Office of Water, U.S. Environmental 
Protection Agency, ``Draft Federal Register Notices Extending Effective 
Date for Arsenic,'' January 29, 2001.
    \315\ EPA solicited public comment on a subsequent notice further 
delaying the effective date. 66 Fed. Reg. 20580 (April 23, 2001).
---------------------------------------------------------------------------
    After issuing the notice to delay the effective date of the 
rule, administration officials focused attention on cost-
benefit issues and a debate over a less stringent standard. On 
March 26, the rule's reviewer received a comprehensive briefing 
on the decisions supporting the rule \316\ and scheduled a 
second meeting for the next day with the ``Office of Water 
staff to go into cost issues in greater detail.'' \317\
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    \316\ Office of Water, ``Arsenic in Drinking Water Standard, 
Presentation to the Administrator's Transition Team,'' U.S. 
Environmental Protection Agency, March 26, 2001.
    \317\ E-mail from Program Advisor, Office of the Administrator, to 
Deputy General Counsel, Office of General Counsel, Program Advisor, 
Office of the Administrator, Counselor to the Administrator, Office of 
the Administrator, Associate Administrator, Office of Policy, Economics 
and Innovation, Acting Assistant Administrator, Office of Water, and 
Associate Deputy Administrator, U.S. Environmental Protection Agency, 
``Arsenic meeting,'' March 26, 2001.
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    During this time, there were contacts between EPA 
officials, the OMB, and the White House regarding the standard. 
However, the full extent and substance of these contacts cannot 
be determined from the EPA documents. For example, an April 3, 
2001 message from the Associate Director, Drinking Water 
Protection Division, Office of Water, to a Special Assistant, 
Office of Research and Development, said, ``Jessica Furey will 
give me the current status of arsenic later this afternoon 
after she meets with the White House.'' \318\ An April 4 Weekly 
Report noted: ``The Agency is discussing with White House staff 
and OMB outstanding issues regarding the independent review.'' 
\319\
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    \318\ E-mail regarding status of arsenic regulations, April 3, 
2001. The schedule of the Counselor to the Administrator for that day 
included a meeting with Jay Lefkowitz, General Counsel, Office of 
Management and Budget and Bob Fabricant, Program Advisor, Office of the 
Administrator, at the Old Executive Office Building. Jessica Furey 
calendar, Environmental Protection Agency, April 3, 2001.
    \319\ E-mail from Special Assistant, Office of Research and 
Development to Associate Director, Drinking Water Protection Division, 
Office of Water, U.S. Environmental Protection Agency, ``Weeklies,'' 
contains 4 weekly cabinet report summaries, April 18, 2001.
---------------------------------------------------------------------------
    What is clear from the documents is that OMB staff 
advocated a change to a less stringent standard. An activity 
report, written by an EPA participant, describes a meeting 
between EPA and OMB staff on April 10 ``to determine whether 
record would support 20 ppb.'' \320\ The meeting was also 
attended by a Special Assistant to the Director of the White 
House Domestic Policy Council, and an unidentified person from 
the Council on Economic Advisors.\321\ According to a 
memorandum describing the meeting, OMB presented its view that 
the record would support a final standard of 20 ppb and EPA 
defended its 10 ppb decision as reflected in the January rule. 
The Program Advisor, Office of the Administrator, reported that 
the new administrator had not made a decision on what the 
standard should be.\322\
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    \320\ E-mail from Division Director, Office of Ground Water and 
Drinking Water, Office of Water to Acting Assistant Administrator, 
Office of Water, ``Activity Update for Week of April 9 for Regas,'' 
U.S. Environmental Protection Agency, April 17, 2001.
    \321\ Undated memorandum from Division Director, Office of Ground 
Water and Drinking Water, Office of Water to Director, Office of Ground 
Water and Drinking Water, Office of Water, summary of meeting with 
Office of Management and Budget and U.S. Environmental Protection 
Agency. An outline of issues to be discussed at the meeting was 
provided in advance to EPA by OMB.
    \322\ Id.
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    Communications continued with OMB after the April 10 
meeting. EPA provided OMB a draft Federal Register notice ``for 
meeting at 6 p.m. today'' to postpone the effective date of the 
rule, with a blank left for the length of time.\323\ An April 
16 EPA e-mail message noted the need to coordinate on 
information being sent to OMB, ``since the administrator's 
office is negotiating with OMB officials at very senior 
levels.'' \324\ There was also mention of a meeting on April 17 
with White House and OMB staff to make decisions regarding how 
to proceed with arsenic.\325\
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    \323\ E-mail from Assistant General Counsel, Water Law Office, 
Office of General Counsel to Office of Management and Budget, 
``Document for Jay Lefkowitz,'' April 11, 2001.
    \324\ E-mail from Division Director, Office of Ground Water and 
Drinking Water, Office of Water to Chief, Targeting and Analysis 
Branch, Standard and Risk Management Division, Office of Ground Water 
and Drinking Water, U.S. Environmental Protection Agency, 
``Occurrence,'' April 16, 2001.
    \325\ E-mail from Division Director, Office of Ground Water and 
Drinking Water, Office of Water to Acting Assistant Administrator, 
Office of Water and others, ``Arsenic and Yucca Mountain Update,'' with 
attachment ``Activity Update for Week of April 9 for Regas,'' U.S. 
Environmental Protection Agency, April 17, 2001.
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  (3) Additional Study and Decision to Retain Standard

    Shortly after the meeting in which OMB advocated a less 
stringent standard, on April 12, officials from EPA and the DOJ 
met with litigants who had challenged the arsenic 
standard.\326\ According to a report regarding the meeting, 
``Industry emphasized major concern that EPA not move too fast 
on substance at expense of record support or industry 
participation. Industry indicated strong willingness to 
consider 9-12 month process although Westcas \327\ continued to 
emphasize need to extend final 2006 compliance date. Bottom 
line: Industry more than willing to support independent review 
process. . . .'' \328\ Two weeks later, on April 23, EPA issued 
a notice proposing and seeking comment on further delay of the 
arsenic standard's effective date for 9 months (from May 22, 
2001 to February 22, 2002). EPA provided this rationale:
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    \326\ Id. As noted above, on March 1, the American Wood Preservers 
had filed the first of several petitions for review of the final rule 
with the D.C. Circuit Court.
    \327\ ``Westcas'' is the Western Coalition of Arid States.
    \328\ Supra, note 325. The participants in the meeting included 
many of the litigants: The Utah Water Act Group (UWAG), the National 
Mining Association, the Western Coalition of Arid States, the State of 
Nebraska, and the Natural Resources Defense Council.

          Stakeholders have an understandable desire to ensure 
        that any new regulation be based on accurate and 
        reliable compliance cost estimates. Stakeholders also 
        want to be confident that the health risks associated 
        with a new standard have been appropriately evaluated 
        and are based on the best available science.\329\
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    \329\ 66 Fed. Reg. 20581 (April 23, 2001).

Like the administrator's announcement of her plans to withdraw 
the standard, this notice provided no information regarding 
specific concerns relating to the reliability of the cost 
estimates or the quality of the science.
    EPA then requested that the National Academy of Sciences 
convene a panel of scientific experts to review EPA's 
interpretation and application of arsenic research from the 
1999 report of the National Research Council, and to evaluate 
any new arsenic research that had become available since 1999. 
It also announced that it would work with the National Drinking 
Water Advisory Council \330\ to review assumptions and 
methodologies underlying the Agency's estimate of arsenic 
compliance costs.\331\
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    \330\ The National Drinking Water Advisory Council consists of 
members of the general public, and representatives of State and local 
agencies and private groups who are concerned with safe drinking water. 
It advises the EPA on ``everything that the Agency does relating to 
drinking water.'' Office of Water, U.S. Environmental Protection 
Agency, ``National Drinking Water Advisory Council.'' http://
www.epa.gov/ogwdw/ndwac/council.html
    \331\ 66 Fed. Reg. 28580 (April 23, 2001).
---------------------------------------------------------------------------
    A majority of the commenters on the April 23, 2001 notice 
opposed the extension, yet on May 22, 2001, EPA announced that 
it would delay the effective date for the rule until February 
22, 2002.\332\ This would allow time to ``complete the 
reassessment process . . . and to afford the public a full 
opportunity to provide further input on the science and costing 
analysis underlying EPA's promulgation of the January 22, 2001 
arsenic standard.'' \333\ Without explanation as to why the 
decade long process did not provide the necessary full 
opportunity for comment, EPA concluded that the delay was 
justified because it agreed with the ``commenters who argued 
that this rule is very important and the issues of cost and 
science that are central to the rulemaking deserve one final 
review before concluding this rulemaking,'' \334\ and that the 
delay would provide more time to develop a mitigation strategy 
for those affected by the costs as well as to review scientific 
information that had recently become available.\335\ The 
commenters who supported the extension, ``most of whom 
represented the drinking water industry, small system water 
providers, and States,'' believed review was warranted, ``to 
consider the financial impact on small systems.'' \336\
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    \332\ 66 Fed. Reg. 28345 (May 22, 2001).
    \333\ 66 Fed. Reg. 20580 (April 23, 2001).
    \334\ 66 Fed. Reg. 28346 (May 22, 2001).
    \335\ 66 Fed. Reg. 28347 (May 22, 2001).
    \336\ Memorandum from Acting Assistant Administrator, Office of 
Water to Christine Whitman, Administrator, Subject: ``Final Rule for 
National Primary Drinking Water Regulation for Arsenic--ACTION 
MEMORANDUM,'' U.S. Environmental Protection Agency, May 16, 2001.
---------------------------------------------------------------------------
    Consequently, a year after its June 2000 request for 
comments on whether the standard should be set at 3, 5, 10, or 
20 ppb, on July 19, 2001, EPA made a strikingly similar request 
in the Federal Register soliciting public comment on whether 
the standard should be set at 3, 5, 10, or 20 ppb.\337\ A week 
later, on July 27, 2001, the House of Representatives amended 
the EPA's appropriations bill to prohibit the delay of the 
regulation or an increase in the allowable arsenic level.\338\
---------------------------------------------------------------------------
    \337\ 66 Fed. Reg. 37617 (July 19, 2001).
    \338\ 147 Cong. Rec. H4743-51, H4758-59 (July 27, 2001).
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    Within the next 2 months, the studies commissioned by EPA 
to provide assurances to stakeholders that cost estimates were 
accurate and health risks were appropriately evaluated were 
submitted, and both reports contained those assurances. The 
National Drinking Water Advisory Council, Arsenic Cost Working 
Group \339\ submitted its cost review report to Administrator 
Whitman on August 23, 2001, which concluded that the EPA 
originally did a ``credible job'' of computing the costs to 
water systems.\340\ In September 2001, the NRC submitted an 
update of its 1999 report supporting the scientific findings. 
As described above, the 1999 report had found sufficient 
evidence that ingestion of arsenic in drinking water caused 
skin, bladder, and lung cancer. In the 2001 update, the NRC 
considered several hundred new scientific articles on arsenic, 
and concluded that these ``other recent studies of arsenic in 
humans, taken together with the many studies discussed in the 
1999 NRC report, provide a sound and sufficient database 
showing an association between bladder and lung cancers and 
chronic arsenic exposure in drinking water, and they provide a 
basis for quantitative risk assessment.'' \341\ The updated 
report also found new evidence that chronic exposure to arsenic 
in drinking water might also be associated with an increased 
risk of high blood pressure and diabetes. In short, EPA's 
review process not only confirmed its findings and refuted 
charges that the original rule was based on something less than 
sound science, it provided additional evidence of the need for 
change, and, as reflected in subsequent litigation filed on 
December 14, 2001, raised questions as to whether the standard 
should be further strengthened.
---------------------------------------------------------------------------
    \339\ The Arsenic Cost Working Group was a panel of nationally 
recognized technical experts established to work with EPA's National 
Drinking Water Advisory Council to review the cost of compliance 
estimates associated with the final arsenic rule. 66 Fed. Reg. 22551 
(May 4, 2001).
    \340\ Report of the Arsenic Cost Working Group to the National 
Drinking Water Advisory Council, Final, August 14, 2001.
    \341\ Subcommittee to Update the 1999 Arsenic in Drinking Water 
Report, Committee on Toxicology, Board on Environmental Studies and 
Toxicology, Division on Earth and Life Studies, National Research 
Council, National Academy Press, Arsenic in Drinking Water: 2001 Update 
at 3 and 5.
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    On October 31, 2001, the date on which public comments were 
due on the contents of the reports, \342\ EPA issued a press 
release announcing Administrator Whitman's decision that the 
arsenic standard would be 10 parts per billion, stating that 
``we are reassured by all of the data that significant 
reductions are necessary . . . a standard of 10 ppb protects 
public health based on the best available science and ensures 
that the cost of the standard is achievable.'' \343\ No 
explanation was provided for the reasons underlying the 
decision or addressing the material developed since issuance of 
the January 2001 rule. On November 8, the Congress approved its 
final language prohibiting EPA from using funds appropriated 
for FY 2002 to delay the January rule.\344\ It was accompanied 
by a House and Senate Conference Report which contained 
language directing EPA to review the agency's affordability 
criteria, assess how small system variance and exemption 
programs should be implemented for arsenic, and recommend 
procedures to grant more time for compliance by small 
communities in cases where compliance by 2006 would pose an 
undue economic hardship.\345\ EPA later reported to Congress 
that it planned to conduct a thorough examination of its 
approach to implementing the affordability provisions of the 
Safe Drinking Water Act, including consideration of issues 
raised by commenters on the regulation proposals and by the 
Arsenic Cost Working Group of the National Drinking Water 
Advisory Council. EPA also committed to using all tools 
available under the SDWA to provide assistance to small 
systems.\346\
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    \342\ 66 Fed. Reg. 50961 (October 5, 2001).
    \343\ U.S. Environmental Protection Agency, Headquarters Press 
Release, Washington, D.C., ``EPA Announces Arsenic Standard for 
Drinking Water of 10 Parts Per Billion,'' October 31, 2001.
    \344\ Pub. L. 107-73, Title IV, Sec. 430 and endnote.
    \345\ H.R. Rept. 107-272, 175.
    \346\ Office of Water, U.S. Environmental Protection Agency, Report 
to Congress: Small Systems Arsenic Implementation Issues, March 2002, 
at 11 and 18.
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    On December 14, 2001, the Natural Resources Defense Council 
filed a petition with the D.C. Court of Appeals challenging 
EPA's October 31 action, arguing that the 2001 National Academy 
of Sciences report demonstrated that EPA had substantially 
underestimated cancer risks in promulgating the January rule. 
Based on the NAS report and new scientific data available, NRDC 
argued that a more protective standard than the 10 ppb standard 
was required by the provisions of the SDWA.\347\ In a motion to 
dismiss the petition, EPA argued that the agency's review of 
the arsenic MCL is still underway, a review that will continue 
until 2007.\348\ The EPA had repeatedly stated it would issue a 
rule based on its review, \349\ and the OMB reported that the 
``Bush Administration will issue a final rule based on the 
results by February 22, 2002'' \350\--notwithstanding the fact 
that a final rule had been issued in January, 2001. No decision 
has yet been rendered in this case, which is among the 
consolidated cases currently under consideration by the 
court.\351\
---------------------------------------------------------------------------
    \347\ Natural Resources Defense Council v. Whitman, No. 01-1515 
(D.C. Cir. filed December 14, 2001). NRDC asserted that the press 
release announcement was a final decision, subject to review by the 
court.
    \348\ American Wood Preservers Institute v. United States 
Environmental Protection Agency, No. 01-1097 (Respondent EPA's Refiled 
and Amended Motion to Dismiss Petition Numbers 01-1291, 01-1515, and 
01-1529 for Lack of Jurisdiction at 6, filed April 4, 2002).
    \349\ 66 Fed. Reg. 20582 (April 23, 2001); 66 Fed. Reg. 28344-47 
(May 22, 2001); 66 Fed. Reg. 37628 (July 19, 2001); 66 Fed. Reg. 42975 
(August 16, 2001); 66 Fed. Reg. 50962 (October 5, 2001).
    \350\ 2001 OMB Report at 38, supra note 16.
    \351\ American Wood Preservers Institute v. Whitman, No. 01-1097 
and consolidated cases (D.C. Cir. Dec. 19, 2001).
---------------------------------------------------------------------------
    OMB also identified the arsenic rule as a ``High Priority 
Regulatory Review Issue'' in a report to Congress, based on 
recommendations from the Mercatus Center that ``benefits do not 
justify costs at standards of either 5 or 10 ppb.'' \352\ This, 
coupled with EPA's statements to the court, raises questions 
regarding the EPA's future intentions regarding the arsenic 
standard.
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    \352\ 2001 OMB Report at 63 and 113, supra note 16.
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