Why We Need Judicial Review: The (Newest) Wolf Rider

If you ever wanted a lesson in the importance of subjecting agency regulations to judicial scrutiny, you should look no further than last week’s wolf rider.  Tacked onto the House of Representatives appropriations bill for the Department of the Interior was this provision:

SEC. 119. Hereafter, any final rule published by the Department of the Interior that provides that the gray wolf (Canis lupus) in the State of Wyoming or in any of the States within the range of the Western Great Lakes Distinct Population Segment of the gray wolf (as defined in the rule published on May 5, 2011 (76 Fed. Reg. 26086 et seq.)) is not an endangered species or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), including any rule to remove such species in such a State from the list of endangered species or threatened species published under that Act, shall not be subject to judicial review if such State has entered into an agreement with the Secretary of the Interior that authorizes the State to manage gray wolves in that State.

But, as I described yesterday, the very States that this rider (on its surface) seems designed to protect are actually unhappy with the Fish and Wildlife Service’s delisting rule because of its recognition of a new species of wolf in the Great Lakes, the so-called “eastern wolf.” 

This rider tells them to go jump in a (Great) lake.  It also takes away any incentive the Fish and Wildlife Service may have to improve its rule.  After all, why should they?  No matter what the Obama Administration does, if the wolf rider passes, their final rule can’t be challenged, so why pay any mind to public comments, whether they be from States, from the Safari Club and other hunting groups, or from conservationists.  In fact, even if all these diverse stakeholders agree (which, to a large extent, they do in this case), who cares?  The Obama Administration can do whatever it wants now.

This is exactly why judicial review of agency decisions is important.  Not only because it provides a remedy for citizens and State governments to address federal agency actions that are illegal, but because it provides those agencies with a more general incentive to listen to, and take seriously, the suggestions, perspective, and critiques of its constituents.

The problem with systematically dismantling the administrative process, which Congress seems so anxious to do these days, is that you simply shift power to Executive Branch agencies. Oh, and it’s also not exactly how our founding fathers set up our government to work.